On 24 June 2014, the Federal Court of Australia dismissed an application made by Channel Seven Brisbane Pty Limited (Channel Seven) for judicial review of adverse investigation findings made by the Australian Communications and Media Authority concerning the Sunday Night program.
The ACMA’s investigation had considered Channel Seven’s compliance with the clauses in the Commercial Television Industry Code of Practice 2010 relating to:
> factual accuracy and
> provoking or perpetuating intense dislike and serious contempt on the basis of ethnicity.
The program reported on the Suruwaha tribe in the Amazon jungle in Brazil.
Channel Seven sought judicial review of the ACMA’s breach findings and on 24 June 2014 Foster J of the Federal Court of Australia dismissed Channel Seven’s application. The court held that it was open to the ACMA to make all of the breach findings it had and that its findings were not affected by legal error.
A copy of Justice Foster’s decision is available here.
Channel Seven has now appealed against that aspect of the decision which dismissed a challenge to the ACMA’s finding that the program had provoked and perpetuated intense dislike and serious contempt on the basis of ethnicity.
For more information please see the Backgrounder below or contact: Emma Rossi, Media Manager, (02) 9334 7719 and 0434 652 063 or firstname.lastname@example.org
Media release 53/2014 - 2 September
Investigation 2741 related to a segment of Sunday Night broadcast on 4 September 2011 by Channel Seven Brisbane Pty Ltd (BTQ Brisbane). It reported on the Suruwaha tribe in the Amazon jungle in Brazil.
The ACMA found that the segment breached code of practice requirements for factual accuracy regarding:
> the application of Brazilian law to the Suruwaha
> the alleged practice of infanticide.
The ACMA also found that, in relation to content which discussed the alleged practices of infanticide among the Suruwaha, the segment breached requirements which prohibit the broadcast of content which is likely, in all the circumstances, to provoke or perpetuate intense dislike and serious contempt on the grounds of ethnic origin.
The ACMA found that the licensee had not breached code requirements regarding other matters investigated [present factual material accurately].
On 7 September 2012, Channel Seven Brisbane Pty Ltd commenced Federal Court proceedings seeking judicial review of the ACMA’s findings. The hearing was held on 27 and 28 February 2013 before Foster J, and the judgment, in the ACMA’s favour, was handed down on 24 June 2014. His Honour dismissed the application on all grounds holding that it was open to the ACMA to make the findings that it did and that the findings were not affected by legal error as alleged by Channel Seven.
Channel Seven Brisbane Pty Limited has since lodged an appeal against the Federal Court decision, although the appeal is limited to that aspect of the decision which dismissed a challenge to the ACMA’s finding that the program had provoked and perpetuated intense dislike and serious contempt on the basis of ethnicity.
The regulatory framework-broadcasting content regulation
Under the Broadcasting Services Act 1992 (BSA), Australian radio and television licensees have primary responsibility for ensuring that the material they broadcast reflects community standards. Many aspects of program content are governed by codes of practice developed by industry groups representing the various Australian broadcasting sectors. The ACMA registers codes (other than those of the national broadcasters, the ABC and SBS) once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards.
> must investigate complaints about compliance with licence conditions (sections 147 and 149 of the BSA)
> must investigate complaints about compliance with code obligations, where the complainant has complained to the licensee and is dissatisfied with its response (sections 148 and 149 of the BSA)
> must investigate such matters as it is directed so to do by the Minister for Communications(section 171 of the BSA)
> may, as matter of discretion, commence an 'own motion' investigation into such matters as it sees fit (section 170 of the BSA).
Additional information about and copies of the ACMA’s published broadcasting investigations reports are available here.
Responding to breaches
Where there has been a breach of code or practice, the ACMA may:
> agree to accept measures offered by the broadcaster to improve compliance (these measures can include educating staff or changing procedures to improve compliance with the rule(s)
> agree to accept an enforceable undertaking offered by the broadcaster for the purpose of securing future compliance with the rule(s)
> impose an additional licence condition.
The ACMA cannot ‘fine’ or ‘prosecute’ a broadcaster for breaching a code, or direct it to do any particular thing (such as broadcast a report of the ACMA’s findings).