Investigation Report 2962File No. ACMA2013/178

Licensee Harbour Radio Pty Limited

Station 2GB Sydney

Type of Service Commercial Radio

Name of Program Alan Jones Breakfast Show

Date of Broadcast 17 October 2012

Relevant Code Codes 2.2(a), 2.3(a), 2.3(b), 2.3(c) and 5.5 of the Commercial Radio Australia Codes of Practice & Guidelines September 2011.

Date Finalised 19 September 2013

Decision Breach of Code 2.2(a) of the Commercial Radio Australia Codes of Practice & Guidelines September 2011; and

No breach of Codes 2.3(a), 2.3(b) or 2.3(c) of the Commercial Radio Australia Codes of Practice & Guidelines September 2011.

No finding in relation to Code 5.5 of the Commercial Radio Australia Codes of Practice & Guidelines September 2011.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on 17 October 2012

The complaintOn 28 January 2013, the Australian Communications and Media Authority (the ACMA) received a complaint regarding segments of the Alan Jones Breakfast Show broadcast on 17 October 2012 by Harbour Radio Pty Ltd (the Licensee).

The complainant submitted that the segments had contained inaccurate material; that factual material was indistinguishable from commentary or analysis; that reasonable efforts had not been made to present significant viewpoints on a controversial issue of public importance; and that his viewpoint had been misrepresented. The complainant also alleged that the Licensee did not respond to his letter of complaint.

The ACMA has considered the Licensee’s compliance with Codes 2.2(a), 2.3(a), 2.3(b), 2.3(c) and 5.5 of the Commercial Radio Australia Codes of Practice & Guidelines September 2011 (the Codes).

The programThe Alan Jones Breakfast Show is broadcast weekdays on 2GB from 5.30am to 9.00am. It is presented by Alan Jones (Mr Jones), who is described on 2GB’s website in the following terms:

Australia's most popular talkback presenter, Alan Jones is a phenomenon. He's described by many as the nation's greatest orator and motivational speaker. Alan has the mind and capacity to make complex issues understandable to the largest Breakfast audience in Australia.1

A substantial element of the program is talk-back with listeners. It also includes news, commentary by the presenter, discussions and interviews relating to current events.

On 17 October 2012, Mr Jones discussed a story that had been reported in the media that morning about the shutting down of the Yallourn power station. Subsequent to this Mr Jones took a phone call from a listener, the complainant, who challenged the accuracy of a number of his statements. Shortly after the call was terminated Mr Jones returned to air and quoted a media article in defence of his original assertion. These three segments form the subject of this investigation.

The First SegmentAt about 8:12 am, Mr Jones stated:

The carnage is everywhere... The Yallourn power station, a major brown coal power station in Victoria’s LaTrobe valley, will today announce that it will scale back electricity production by shutting down one of its four units. Yallourn says the carbon price is driving up operating costs and the government’s renewable energy target is threatening the sustainability of the electricity market. How... for how many months have I been saying this? It says the renewable energy target is suppressing wholesale power prices to uneconomic levels, which will end up costing consumers 53 billion dollars. Yallourn’s decision means that more than 3,000 megawatts of coal-fired power generation capacity has been cut back or closed in recent times.

1 http://www.2gb.com/shows/alan-jones-breakfast-show

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 2

Queensland’s Stanmore Corporation will close two of its production units. Tony Abbott warned all this would happen and has been vilified in the Parliament for it. Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.

I suppose this is what the government wanted its carbon tax and renewable energy target to achieve. But what are the consequences? Even higher prices and power insecurity. Striking at the heart of our economic strength: cheap energy sources.

Are we looking to a future of brownouts, are we? This is just... ugh! Don’t start me. An absolute disgrace. This is the carbon dioxide tax at work.

For the purposes of this report:

Power Station 1 – refers to the Yallourn power station

Power Stations 2 – refers to the power stations operated by Alinta Energy in South Australia

Power Station 3 – refers to the Munmorah power station operated by Delta Energy.

It is noted that Power Stations 2 consist of two coal-fired units based at Port Augusta in South Australia; the Northern Power Station and the smaller Playford B.

The segment also referred to Queensland’s Stanmore corporation closing two production units.

The Second SegmentAt about 8:41 am, the complainant telephoned the program and had an on-air conversation with Mr Jones. During this conversation, the complainant challenged Mr Jones’ assertion that Power Station 3 had been closed due to the carbon tax. The complainant claimed instead that Power Station 3 had shut down because it was a 45-year-old station, ‘wholesale demand for energy [had] been declining for about two and a half to three years’ and ‘that is why a lot of these power stations are under financial pressure, because there is just not the demand for some of these older units.’ Mr Jones responded with:

I didn’t say it was because of the carbon tax. I said, I said, ‘what does this have - what are the consequences for power insecurity?’ I said.

The Third SegmentAt about 8:54 am, Mr Jones quoted an article from ‘the ABC website’ dated 3 July 2012 (the ABC Article) which addressed the reasons for the closure of Power Station 3.2 The article stated that the operators of the plant had cited reduced demand, ageing infrastructure and high maintenance costs as reasons for its closure but that in addition to this, its Chief Executive had said that the carbon tax was also a factor, as it had ‘sealed the fate of the power station’.

Transcripts of the First Segment, the Second Segment and the Third Segment can be found at Attachment 1.

2 http://www.abc.net.au/news/2012-07-03/carbon-tax-cited-as-coal-power-station-to-close/4107694

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 3

AssessmentThis investigation is based on an audio recording of the broadcast provided by the Licensee as well as submissions provided by both the Licensee and complainant.

Other relevant sources consulted are identified in the report.

‘Ordinary, reasonable’ listener testIn assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener.

Australian Courts have considered an ‘ordinary, reasonable’ reader (or listener or viewer) to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.3

In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once the ACMA has ascertained the meaning conveyed, it then determines whether the Codes have been breached.

Issue 1: Reasonable efforts to ensure factual material is reasonably supportable as being accurate

Relevant ProvisionCode of Practice 2: News and Current Affairs Programs

2.2 In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a) factual material is reasonably supportable as being accurate;

...

A failure to comply with the requirement in Code 2.2(a) to broadcast factual material that is reasonably supportable as being accurate will not be taken to be a breach of the Code if a correction, which is adequate and appropriate in all the circumstances, is made within 30 business days of the licensee receiving a complaint or a complaint being referred to the ACMA (whichever is later).

The relevant considerations to which the ACMA has regard in assessing whether or not the broadcast material complained about is factual in character are at Attachment 2.

3 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 4

The ACMA notes that the talk-back format is a common feature of current affairs programs providing analysis, commentary and discussion with listeners about current social, economic or political issues.

As such, it frequently approaches matters from a strong viewpoint and the ACMA acknowledges that this is part of the appeal or value of such programs to their listeners and in the broader context of public discourse. In this context, much of what is said in talk-back radio will be in the nature of opinion.

However, care must be taken where factual material forms the basis of the opinion expressed in a current affairs broadcast.

Where a current affairs talk-back program, such as the Alan Jones Breakfast Show, includes factual material, Code 2.2(a) of the Codes requires that the licensee must use reasonable efforts to ensure that it is reasonably supportable as being accurate.

Complainant’s submissionsExtracts from the complaint can be found at Attachment 3.

The complainant’s concerns over accuracy relate specifically to the factual material dealing with Power Stations 2 and Power Station 3, in particular the following statements by Mr Jones:

Tony Abbott warned all this would happen and has been vilified in the Parliament for it. Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.

I suppose this is what the government wanted its carbon tax and renewable energy target to achieve. But what are the consequences? Even higher prices and power insecurity. Striking at the heart of our economic strength: cheap energy sources.

Licensee’s submissionsExtracts from the Licensee’s submissions can be found at Attachment 4.

FindingThe Licensee breached Code 2.2(a) of the Codes.

Reasons

Was the relevant statement factual material?

The first issue is to determine whether the material complained about was factual in nature. As outlined at Attachment 2, this is assessed in accordance with contextual indications, including the language, tenor and tone of the statement and the rest of the broadcast.

The Licensee submitted that Code 2.2(a) does not apply to impressions formed in the mind of the listener. It submitted that the relevant statements of fact were:

Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 5

It argued:

There is no question of ambiguity or doubt as to the meaning of this statement of fact. Accordingly, it is not necessary to seek new and alternative meanings for this statement.

In the context of a live to air broadcast, we also consider that a requirement to support both the express statements of fact and also implied facts (or facts formed by impression) are beyond the scope of a “reasonable endeavours” obligation and are pitched at the much higher “best endeavours” or absolute obligation levels.

Having regard to the overall context in which the statement was made, the ordinary, reasonable listener would have understood the broadcast to have conveyed that Power Stations 2 and Power Station 3 had closed down permanently, and that the carbon tax4 was the primary cause of the closures. This is because:

the First Segment exclusively discussed the carbon tax and the Renewable Energy Target;

the First Segment commenced by discussing the closure of Power Station 1 which had been reported by the media that morning as being due to the carbon tax;

Mr Jones did not refer to any other factors that may have caused the closure of Power Stations 2 and Power Station 3; and

the statement was followed by the words ‘I suppose this is what the Government wanted its carbon tax and Renewable Energy Target to achieve’.

The ACMA considers that in the context of Mr Jones’ statements about the impact of ‘the Government’s carbon tax and renewable energy target’ on the sustainability of the electricity market, the relevant factual material was that the carbon tax had been the primary cause of the closure of Power Stations 2 and Power Station 3. Although it occurred in the course of talk-back commentary, the factual material was specific, unequivocal and capable of independent verification.

Did the Licensee use reasonable efforts to ensure that the statement was reasonably supportable as being accurate?

Power Stations 2 – ‘Alinta Energy has closed coal-fired production units in South Australia’

The ACMA notes that in respect of Power Stations 2, Alinta Energy issued three separate media releases on 20 April 2012, 9 September 2012 and 14 September 2012 respectively. These are set out at Attachment 5.

It is apparent from these media releases that:

the Northern Power Station was not being closed; Playford B would remain available for operation in circumstances where it was

economic to do so; and Alinta Energy’s decision was based on market conditions and was not being made

because of the price on carbon.

On this information, the relevant factual material was inaccurate.

4 The ‘carbon tax’ being a reference to the Gillard government’s carbon pricing scheme under the Clean Energy Act 2011, which was implemented on 1 July 2012.

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The wording of Code 2.2(a) makes it clear that the Licensee’s obligation is to make reasonable efforts to ensure that factual material is reasonably supportable as being accurate. This requires consideration of the evidence provided by the Licensee as to its efforts at the time the material was broadcast.

The Licensee submitted to the ACMA that the factual material identified by it was sourced from the following:

an article published by The Australian dated 17 October 2012 discussing the closure of Power Station 1;5

an article published by the ABC on 17 October 2012 similarly discussing the closure of Power Station 1;6 and

a press release published by Energy Australia dated 17 October 2012 also referring to the closure of Power Station 1.7

In subsequent submissions to the ACMA, the Licensee submitted that the notion that the carbon tax was responsible for the closure of Power Stations 2 and Power Station 3 was substantiated by the following:

a feature on the ABC’s PM program dated 11 July 2011 discussing the fact that Power Stations 2 were ‘under threat’;8

an article sourced from Adelaide Now (online) dated 18 April 2012 discussing the winding back of Power Stations 2;9 and

a feature on the ABC’s The World Today program dated 4 July 2012 addressing the reasons for the closure of Power Station 3.10

In respect of Power Stations 2, the ACMA notes:

the 11 July 2011 ABC PM story opens with the claim that ‘in South Australia, two power stations, a coal mine and a coal town are under threat from the carbon tax’;

the same report features a comment from the South Australian Chamber of Mines and Energy CEO that ‘certainly the carbon tax is intended to shut down coal-fired power stations. In this case of course it's not just about shutting down a power station but also about shutting down potentially a mine, a rail and an entire town’; and

the Adelaide Now article states that ‘The high-polluting and antiquated 1963-commissioned Playford Power Station will be permanently closed - its fate sealed by the introduction of a carbon tax in July’.

However, the ACMA also notes:

the ABC PM story was some 15 months old by the time the broadcast went to air, and was therefore dated; and

the ABC The World Today article contains no mention of Power Stations 2.

5 http://www.theaustralian.com.au/national-affairs/climate/brown-out-in-coal-power-squeeze/story-e6frg6xf-1226497360617

6 http://www.abc.net.au/local/stories/2012/10/17/3612578.htm7 http://www.energyaustralia.com.au/about-us/media-centre/current-news/changes-to-renewable-

energy-target8 http://www.abc.net.au/pm/content/2011/s3266745.htm9 http://www.adelaidenow.com.au/coal-power-will-only-switch-on-for-summer/story-e6frea6u-

122633209718510 http://www.abc.net.au/worldtoday/content/2012/s3538627.htm

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 7

The ACMA has previously noted that whether efforts have been made to ensure that factual material is reasonably supportable as being accurate will depend on the relevant circumstances at the time of preparing and broadcasting the program.11 While Code 2.2(a) does not impose an absolute or best efforts obligation to ensure factual material is reasonably supportable as being accurate, the material relied on should be commensurate with the nature and context of the subject matter.

The ACMA accepts that, in many (if not most) situations, reference to a current mainstream media source will be indicative of reasonable efforts. However, any assessment of reasonableness must also take account of credible material that throws doubt on the accuracy of such a mainstream media source, where it is practicable and reasonable for the Licensee to make use of such material.

The Licensee has made submissions to the effect that:

it is unhelpful to have reasonable efforts assessed by reference to circumstances rather than practices and procedures;

a requirement to discover and investigate conflicting media releases imposes a burdensome obligation beyond the ’reasonable efforts’ contemplated by Code 2.2(a); and

an approach to ‘reasonable efforts’ that requires substantiation of important issues by reference to more weighty sources than is required for less important issues does not reflect the nature and production of 2GB’s comment and opinion based format.

These submissions can be found below at Attachment 4.

However, the ACMA notes that in other contexts12 the Licensee has relied on a range of sources in addition to mainstream media sources in order to verify factual material in its talk-back programs including media releases, internet searches and primary research. It is self-evident that some sources will carry more weight than others.

In this case, it is noted that the Alinta Energy media release of 20 April 201213 had been issued by the owners of Power Stations 2, to ‘clarify incorrect media reports regarding operations of the Flinders power stations at Port Augusta in South Australia’.

The media release of 9 September 2012,14 issued in the context of a discussion of the Federal Government’s decision to abandon the contract for closure scheme,15 provided confirmation as to the operations of Power Stations 2 before the date of broadcast.

These releases were issued directly by the company that was the subject of the impugned statement made by Mr Jones and focussed directly on the factual matter in question. In addition, the relevant media releases were readily available on the company’s website, stating in unequivocal terms that the carbon tax had had no bearing on its decision to close Power Stations 2. These releases were clearly still relevant at the time the comments were

11 See, for example, Investigations 2540 and 2597, 2614 and 263612 For example, response to Investigation 2597, 2614 and 263613 http://alintaenergy.com.au/Everything-Alinta-Energy/News/Alinta-Energy-clarifies-market-reports14 http://alintaenergy.com.au/Everything-Alinta-Energy/News/Contract-for-Closure15 This being a scheme announced on 10 July 2011 in conjunction with the carbon tax whereby the

Federal Government would offer financial support to close highly emissions-intensive power stations. The scheme was, however, scrapped on 5 September 2012. More information can be found at http://www.ret.gov.au/energy/clean/contract/Pages/ContractforClosure.aspx

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 8

broadcast and contained a media contact number for any member of the public or media to make enquiries if it wished.

In these circumstances, the ACMA considers that the Licensee’s reliance on dated media reports and secondary sources was insufficient to meet the obligations imposed on it by Code 2.2(a).

The ACMA concludes that the Licensee did not use reasonable efforts to ensure that the relevant statement was reasonably supportable as being accurate and consequently breached Code 2.2(a) of the Codes.

Power Station 3 – ‘Delta Energy has closed the Mummorah station in the Hunter Valley’

In respect of Power Station 3, Mr Jones’ statements were challenged by the caller in the Second Segment, and clarified by Mr Jones in the Third Segment.

During the Second Segment, the complainant stated that ‘wholesale demand for energy has been declining for about two and a half to three years’ and that ‘it hasn’t had anything to do with the carbon price yet, and that is why a lot of these power stations are under financial pressure.’

During the Third Segment, the ABC Article, entitled ‘Carbon tax “seals fate” of closing power station’ was read out by Mr Jones:

Reduced demand and Munmorah's ageing infrastructure and high maintenance costs have been cited as reasons for the decision.

But Delta chief executive ... says the carbon tax is also a factor in deciding to bring forward the plant's proposed 2014 decommissioning, with predictions it will further erode its viability.

‘To be honest, Munmorah would have been closing with or without a carbon tax. The carbon tax really just sealed the fate of the power station,’ he said.

Mr Jones’ initial statement must be considered in the context of the three segments together. The ACMA considers that the ordinary, reasonable listener would have understood by the end of the Third Segment that the carbon tax was a contributory, but not primary factor behind the closure of Power Station 3.

The ACMA is satisfied that, in these circumstances, the Licensee did not breach Code 2.2(a) of the Codes in relation to Mr Jones’ statements regarding Power Station 3.

Issue 2: Ensuring that the reporting of factual material was clearly distinguishable from commentary/analysisRelevant ProvisionCode of Practice 2: News and Current Affairs Programs

2.3 In the preparation and presentation of current affairs programs, a licensee must ensure that:

(a) the reporting of factual material is clearly distinguishable from commentary and analysis;

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 9

Complainant’s submissionsExtracts from the complainant’s submissions in relation to this issue can be found at Attachment 3.

Licensee’s submissionsExtracts from the Licensee’s submissions in relation to this issue can be found at Attachment 4.

FindingThe Licensee did not breach Code 2.3(a) of the Codes.

Reasons

The ACMA accepts that in talk-back radio much of what is said will be in the nature of opinion and commentary. Code 2.3(a) requires that where factual material is also reported, that factual material must be clearly distinguishable from the commentary.

Here, the segments complained of included both factual material and statements of opinion. In the ACMA’s view these different types of material would have been apparent to and clearly distinguishable by the ordinary reasonable listener.

In this regard it is noted that, at some points context, language, tone and tenor indicate expressions of opinion by Mr Jones on the impact of the carbon tax on the energy industry in Australia. Examples of this include the following:

‘The carnage is everywhere’; ‘For how many months have I been saying this?’; ‘I suppose this is what the government wanted its carbon tax to achieve’; and ‘This is just... ugh! Don’t start me. An absolute disgrace’.

At other points in the broadcast, as discussed above, context, language tone and tenor indicate factual material.

The ACMA considers that it would have been clear to the audience that Mr Jones’ statements surrounding the factual material were commentary and analysis of the issue. As such, the ACMA is satisfied that the Licensee did not breach Code 2.3(a) of the Codes.

Issue 3: Reasonable efforts made/opportunities given to present significant viewpoints

Relevant ProvisionCode of Practice 2: News and Current Affairs Programs

2.3 In the preparation and presentation of current affairs programs a licensee must ensure that:

...

(b) reasonable efforts are made or reasonable opportunities are given to present significant viewpoints when dealing with controversial issues of public importance, either within the same program or similar programs, while the issue has immediate relevance to the community;

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 10

Complainant’s submissionsThe complainant’s submissions are set out at Attachment 3. His concern is that ‘reasonable efforts were not made to present significant viewpoints when dealing with the controversial issue of public interest.’

Licensee’s submissionsThe Licensee submitted that the subject matter of the broadcast was the closure of power stations and the implications of that, which was not a controversial issue of public importance, and:

In any case, in our view, the complainant himself was provided with a reasonable opportunity to present an alternative viewpoint during the course of his on-air comments and discussion with Mr Jones.

FindingThe Licensee did not breach Code 2.3(b).

ReasonsThe key elements of Code 2.3(b) are as follows.

On a controversial issue of public importance, a licenseeo In the same or similar programs, either –

make reasonable efforts to present significant viewpoints; or give reasonable opportunities for significant viewpoints to be presented by

third parties. It is not enough that relevant efforts and/or opportunities are made or given in respect of

only one significant viewpoint. ‘Significant viewpoints’ means that more than one significant viewpoint must be

presented - it must be an alternative, and it need not be an opposing viewpoint; not all viewpoints must be presented, but the restatement of one viewpoint will not suffice.

This must occur while the issue has immediate relevance to the community.

Whether the efforts made or opportunities given are ‘reasonable’ in any case will depend on its particular facts and circumstances.16

The ACMA has previously noted that Code 2.3(b) does not require balance. Nor does it contemplate that equal time or prominence must be given to each significant viewpoint presented. However, to satisfy the obligation, active steps need to be taken by the licensee. The obligation rests with the licensee and is not simply discharged by opening telephone lines to listeners or interest groups (or by relying on other licensees or national broadcasters to present those alternative viewpoints).17

16 Investigation 254017 Investigations 2597, 2614 & 2636

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Controversial issue

The broadcast dealt broadly with the issue of the impact of the carbon tax and the renewable energy scheme on the energy industry in Australia. For example, in the First Segment, Mr Jones stated the following:

I suppose this is what the government wanted its carbon tax and renewable energy target to achieve. But what are the consequences? Even higher prices and power insecurity. Striking at the heart of our economic strength: cheap energy sources.

Are we looking to a future of brownouts, are we? This is just... ugh! Don’t start me. An absolute disgrace. This is the carbon dioxide tax at work.

The proposal for the introduction of the carbon tax was a controversial issue during the period leading up to the passage through Parliament in November 2011 of the Clean Energy Bill 2011 (Cth) (establishing the carbon pricing mechanism).

The ACMA considers that the carbon tax remained a controversial issue of public importance of immediate relevance to the community at the time of the broadcast. The scheme received media coverage after its implementation in July 2012 and remains a significant matter of ongoing political controversy.

Significant viewpoints

The ACMA has previously noted that a ‘significant viewpoint’ is one capable of materially contributing to listener understanding of the controversial issue and views held about it.18

In this case, a significant viewpoint on the controversial issue was presented by Mr Jones in the First Segment.

The ACMA considers that alternative significant viewpoints were presented in both the Second and Third Segments in relation to the issue.

During the Second Segment, Mr Jones allowed the complainant an opportunity to present his viewpoint clearly and at length:

Complainant – Ah yes Alan, you made a comment this morning that ahh... power stations that closed cos of the carbon tax?Mr Jones – Mmmm.Complainant – Ahhh... well I’m in the energy industry...Mr Jones – Yeah?Complainant - ...and I can say that that’s not the case.

Complainant - The Chief Financial Officer for Munmorah specifically said that the decision was made before the carbon tax was introduced.

Complainant - Let’s just be clear, Munmorah was not closed cos of the carbon tax.

Complainant - That’s been happening for a number of years. It hasn’t had anything to do with the carbon price yet, and that is why a lot of these power stations are under financial pressure. Because there... there is just not the demand for some of these older units!

In this instance, the ACMA is satisfied that the complainant was given a fair opportunity by the Licensee to express his viewpoint sufficiently clearly. In the Third Segment, the Licensee

18 Investigation 2597, 2614 & 2636

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 12

succeeded in presenting an additional viewpoint to that initially expressed by Mr Jones, namely due to his citation of the ABC Article:

Mr Jones - [Delta Energy], announced today the plant will close. This was in July. Reduced demand and Munmorah's ageing infrastructure and high maintenance costs have been cited as reasons for the decision.

But! But. It’s owned by Delta Electricity [complainant’s name], you ready? Delta chief executive [GE] said the carbon tax is also a factor in deciding to bring forward the plant's proposed 2014 decommissioning, with predictions it will further erode its viability. He said, ‘To be honest, Munmorah would have been closing with or without a carbon tax. The carbon tax just sealed the fate of the power station.’

The ACMA considers that by quoting the ABC Article during the Third Segment, as well as allowing the complainant to express an alternative viewpoint during the Second Segment, the Licensee met its obligations under Code 2.3(b). These two items constituted significant viewpoints on the issue that provided counterpoints to Mr Jones’ views.

Accordingly, the Licensee did not breach Code 2.3(b).

Issue 4: Representation of viewpoints expressed to the LicenseeRelevant provisionCode of Practice 2: News and Current Affairs Programs

2.3 In the preparation and presentation of current affairs programs a licensee must ensure that:

...

(c) viewpoints expressed to the licensee for broadcast are not misrepresented and material is not presented in a misleading manner by giving wrong or improper emphasis or by editing out of context.

Complainant’s submissionsExtracts from the Complainant’s submissions are set out at Attachment 3.

Licensee’s submissionsExtracts from the Licensee’s submissions are at Attachment 4.

FindingThe Licensee did not breach Code 2.3(c) of the Codes.

ReasonsThe ACMA does not consider that the Licensee misrepresented viewpoints or presented material in a misleading manner during the three segments.

As noted above, the complainant was given a fair opportunity during the Second Segment to express his views. The ACMA is of the view that Mr Jones allowed the complainant to present his argument in a respectful and fair manner. There is no evidence to suggest that the complainant’s views were edited out of context.

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The ACMA is satisfied that the Licensee did not misrepresent the viewpoint expressed in the ABC Article. Mr Jones quoted the article verbatim and the ACMA does not consider that he gave it a wrong or improper emphasis in doing so.

While Mr Jones did not refer to the age of the power stations in discussing why they had been shut down, in quoting the ABC Article during the Third Segment, the Licensee clarified the situation and did not misrepresent any one perspective in relation to the issue.

Accordingly, the ACMA is satisfied that the Licensee did not breach Code 2.3(c) of the Codes.

Issue 5: Complaints handling

Relevant provisionCode of Practice 5: Complaints

Advice in Writing

5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving a complaint.

Complainant’s submissionsThe complainant submitted to the ACMA on 9 November 2012 that he had sent his complaint to the Licensee via mail on the same date. He attached a copy of his complaint, also dated 9 November 2012, to his correspondence with the ACMA.

On 28 January 2013, he once again wrote to the ACMA advising that the Licensee had not responded to his complaint.

Licensee’s submissionsThe Licensee submitted the following:

The obligation in Code 5.5 is conditional on 2GB’s receipt of a complaint. After making due internal inquiry, we can confirm that 2GB has no record of receipt of [the complainant’s] complaint set out in the letter dated 9 November 2012 provided by [the complainant] as part of his complaint to the ACMA.

The Licensee submitted that it does not have a system which logs letters as they are received by it. Mail is placed in ‘pigeon holes’ and any complaints are distributed to the Managing Director and Program Director who are responsible for dealing with them. The Licensee has advised the ACMA that complaints are then entered into a complaints registration system.19

19 Meeting between 2GB and the ACMA 22 May 3013

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FindingThe ACMA makes no finding as to whether the Licensee breached Code 5.5.

ReasonsThe complainant appears to have taken appropriate steps to send his complaint to the Licensee pursuant to the Codes. The Licensee denies receipt of that complaint. The ACMA has no firm evidence that the Licensee did receive the complaint.

In these circumstances, on this occasion, the ACMA makes no finding on compliance with Code 5.5 of the Codes.

However, the ACMA notes that the Licensee’s current lack of a system to record complaints received by post seems unlikely to foster compliance with Code 5. The ACMA urges the Licensee to review its practices in this regard.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 15

Attachment 1Transcript of the First Segment – 8:12amMr Jones – The carnage is everywhere... The Yallourn power station, a major brown coal power station in Victoria’s Latrobe valley, will today announce that it will scale back electricity production by shutting down one of its four units. Yallourn says the carbon price is driving up operating costs and the government’s renewable energy target is threatening the sustainability of the electricity market. How... for how many months have I been saying this? It says the renewable energy target is suppressing wholesale power prices to uneconomic levels, which will end up costing consumers 53 billion dollars. Yallourn’s decision means that more than 3,000 megawatts of coal-fired power generation capacity has been cut back or closed in recent times.

Queensland’s Stanmore corporation will close two of its production units. Tony Abbott warned all this would happen and has been vilified in the Parliament for it. Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.

I suppose this is what the government wanted its carbon tax and renewable energy target to achieve. But what are the consequences? Even higher prices and power insecurity. Striking at the heart of our economic strength: cheap energy sources.

Are we looking to a future of brownouts, are we? This is just... ugh! Don’t start me. An absolute disgrace. This is the carbon dioxide tax at work.

Transcript of the Second Segment – 8:41amMr Jones – [Complainant’s name], hello.

The Complainant – Ah yes Alan, you made a comment this morning that ahh... power stations that closed cos of the carbon tax?

Mr Jones – Mmmm.

The Complainant – Ahhh... well I’m in the energy industry...

Mr Jones – Yeah?

The Complainant - ...and I can say that that’s not the case.

Mr Jones – Mmmm?

The Complainant – I think you should look at the Australian Energy Market Commission webpage...

Mr Jones – Mmmm?

The Complainant - ...and if you had looked at that, you’ll see that wholesale demand for energy has been declining for about two and a half to three years.

Mr Jones – Mmmm?

The Complainant – You talked about – was it Munmorah you said?

Mr Jones – Munmorah was closed, yes.

The Complainant – Munmorah was closed – it’s a 45 year-old plant...

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 16

Mr Jones – Mmmm?

The Complainant - ...and the Chief Financial Officer for Munmorah specifically said that the decision was made before the carbon tax was introduced.

Mr Jones – Well that’s not what they’re saying at Yallourn.

The Complainant – Ahh, well, I’m quoting, I’m quoting Munmorah...

Mr Jones – Well, I’m quoting Yallourn.

The Complainant – Ahh well, I would say that that’s wrong.

Mr Jones – Well, Yallourn themselves...

The Complainant – Can I ask you where you got that information from?

Mr Jones – I’m just telling you, firstly...

The Complainant – Yeah?

Mr Jones – This is widely circulated today, and if you read all the websites and the newspapers and everywhere today, that is being reported as well, we have talked about it before, I’ve spoken to the people at Yallourn off air in the past, and now they’ve announced that they’ll today say they’ll shut down their units, and they said, their words: ‘the carbon price was driving up operating costs’, there’s no denial of that anywhere...

The Complainant – OK...

Mr Jones – That’s common sense...

The Complainant – OK, so Munmorah, so we can agree that Munmorah...

Mr Jones – No, I said... I didn’t... I said Munmorah had closed.

The Complainant – Munmorah... but you said at the same time as the carbon tax, so we can agree that Munmorah... we can agree that...

Mr Jones – I’m just looking back at my words here. I’ll tell you what my words...

The Complainant – We can agree that Munmorah did not close...

Mr Jones – Just a minute.

The Complainant - ...cos of the carbon tax.

Mr Jones – Just a minute. Just a minute.

The Complainant – Sure.

Mr Jones – I’ll tell you what I said. I said here: ‘Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.’ I didn’t say it was because of the carbon tax. I said, I said, what does this have... ‘what are the consequences for power insecurity?’ I said.

The Complainant – Right. So we can say now that Munmorah – let’s just be clear, Munmorah was not closed cos of the carbon tax.

Mr Jones – Well, the... Munmorah... if you want to say that, it’s old and it had to be shut down...

The Complainant – That’s fine.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 17

Mr Jones – OK. But let’s look at the reality of what the renewable energy target is doing and what the carbon price is doing to electricity costs and electricity production.

The Complainant – These power sta... you’re... you... you have not mentioned, and I think you should, that wholesale... the demand for wholesale power has decreased.

Mr Jones – Well, we hope so! (Laughs). We hope so!

The Complainant – And that’s why... and that’s... that’s been happening for a number of years. It hasn’t had anything to do with the carbon price yet, and that is why a lot of these power stations are under financial pressure. Because there... there is just not the demand for some of these older units!

Mr Jones – Well look, I don’t know what, what agenda you’re driving [complainant’s name]...

The Complainant – No, no, I... my...

Mr Jones – OK, well if you give me... if you give that reference that you’ve given me and I’ll put you back to James, I’m more than happy to... I’m more than...

The Complainant - The Australian...

Mr Jones – Yep, OK, well, I haven’t got a pen here now...

The Complainant – But I’m let me say... but I’m... I’m a little surprised you haven’t checked this, it’s the Australian...

Mr Jones – Ahh, [complainant’s name], you’re a little surprised. If you’ve got some preoccupation with that, please understand that my preoccupation is with a thousand issues that come across my desk, this is but one of them, I’m more than happy to look at that reference, I haven’t read every reference, I’ve read a lot, I can tell you, but I haven’t read every reference. But if you’re trying to suggest that a tax on electricity production is not going to alter the nature of production or the price of what is produced, then I don’t know what textbook you’re reading from.

The Complainant – Hopefully it will. Hopefully it...

Mr Jones – Oh, hope! We’re living on hope, are we? What about the renewable energy target?

The Complainant – I’m just saying it hasn’t yet.

Mr Jones – OK well [complainant’s name], if you’re... since you’re an expert, since you’re an expert, tell me this: what is the cost per kilowatt hour of coal-fired power?

The Complainant – It’s about... ahh, four to five cents a kilowatt hour.

Mr Jones – Hang on... what... a kilowatt hour. The cost of production...

The Complainant – The cost of production, it’s about four to five cents a kilowatt hour.

Mr Jones – Well, you go and do some homework and I’m happy to clarify all that for you, that’s a mile off the pace. It’s fifteen to nine...

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 18

Transcript of the Third Segment - 8:54am

Mr Jones – Errr [complainant’s name], I’ve just asked my people... you’re listening out there, [complainant’s name]? Errr, we’ll share a little bit of information, shall we? This is not from the Mr Jones website [complainant’s name], this is from the ABC website, and this is the story from the 3rd of July about Munmorah. You listening, [complainant’s name]? Got a pen and paper?

The carbon tax has been blamed for the decision to close a coal-fired power station in the Hunter Valley. Munmorah Power Station began operating on the shores of Lake Macquarie 45 years ago, making it one of New South Wales’ oldest coal-fired stations. Its owner, Delta Electricity, announced today the plant will close. This was in July. Reduced demand and Munmorah's ageing infrastructure and high maintenance costs have been cited as reasons for the decision.

But! But. It’s owned by Delta Electricity [complainant’s name], you ready? Delta chief executive said the carbon tax is also a factor in deciding to bring forward the plant's proposed 2014 decommissioning, with predictions it will further erode its viability. He said, ‘To be honest, Munmorah would have been closing with or without a carbon tax. The carbon tax just sealed the fate of the power station’. That’s the Chief Executive ....

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 19

Attachment 2Considerations which the ACMA has regard to in assessing whether or not broadcast material is fact or opinion The primary consideration is whether, according to the natural and ordinary meaning of

the language used and the substantive nature of the message conveyed, the relevant material is presented as a statement of fact or as an expression of opinion. In that regard, the relevant statement must be evaluated in its context, i.e. contextual

indications from the rest of the broadcast (including tenor and tone) are relevant in assessing the meaning conveyed to the ordinary reasonable listener/viewer.

The use of language such as ‘it seems to me’, ‘we consider/think/believe’ tends to indicate that a statement is presented as an opinion. However, a common sense judgment is required as to how the substantive nature of the statement would be understood by the ordinary reasonable listener/viewer, and the form of words introducing the relevant statement is not conclusive.

Factual material will usually be specific, unequivocal and capable of independent verification.

Inferences of a factual nature made from observed facts are usually still characterised as factual material (subject to context); to qualify as an opinion/viewpoint, an inference reasoned from observed facts would usually have to be presented as an inference of a judgmental or contestable kind.

The identity of the person making the statement would not in and of itself determine whether the statement is factual material or opinion, i.e. it is not possible to conclude that because a statement was made by an interviewee, it was necessarily a statement of opinion rather than factual material.

Statements in the nature of prediction as to future events would nearly always be characterised as statements of opinion.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 20

Attachment 3

Complainant’s submissions

The complainant submitted the following to the Licensee:

Code 2.2(a) of the Codes

On the 17th of October at around 8.30 am, Mr Alan Jones read a statement that was accredited to Alinta Energy (the statement) regarding the closure of several coal-fired power stations in N.S.W., South Australia and Victoria. The statement attributed the closure of several power stations to the Carbon Tax and the Renewable Energy Target. Specifically, the statement mentions the Munmorah Power Station in N.S.W, as a power station that closed because of the Carbon Tax and the Renewable Energy Target. This power station has been on stand-by, not producing power, since August 2010. It should be noted that the Carbon Tax did not come into effect until July 2012, almost two years after this power station was placed on stand-by. Also the closure of Munmorah Power Station was widely reported on and the date that Munmorah Power Station stopped producing electricity was also widely reported on.

I refer to clause 2.2 of the code of practice

In the preparation and presentation of current affairs programs, a licensee must use reasonable efforts to ensure that:

(a) factual material is reasonably supportable as being accurate;

and

(b) substantial errors of fact are corrected at the earliest possible opportunity.

My assertion is that the statement as read by Mr Alan Jones on the 17th October pertaining to Munmorah Power Station does not comply with clause 2.2 part (a) as the licensee did not make reasonable efforts to ensure that the material presented can be reasonably supportable as being accurate. Indeed the statement is not reasonably supportable as being accurate.

The statement as read by Mr Alan Jones also mentioned power stations in South Australia closing due to the Carbon Tax and Renewable Energy Target, although no specific power stations were mentioned. There are two coal fired power stations in South Australia, Playford B and the Northern Power Station. Due to lack of demand Playford B is not producing electricity and the Northern Power Station will only be producing electricity for six months of the year in summer.

Again, my assertion is that the statement as read by Mr Alan Jones on the 17th October pertaining to power stations in South Australia does not comply with clause 2.2 part (a) of the code as the licensee did not make reasonable efforts to ensure that the material is reasonably supportable as being accurate. Indeed the statement is not reasonable supportable as being accurate.

Code 2.3(a), 2.3(c) of the Codes

Importantly the statement as read by Mr Alan Jones did not mention that total power consumption in Australia stopped growing in 2009 and has actually decreased since then; this has been a major contributor to closure of some power stations. That details of electricity demand were not included in the statement, as read by Mr Alan Jones, or included later by 2GB

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 21

would leave the average listener with the impression that the Carbon Tax and the Renewable Energy Targets were the principle [sic] reasons or even the only reasons why these power stations were closing. This impression would have been further enhanced by statements by Mr Alan Jones, after the reading of the statement (subsequent statements), that energy security was an issue in Australia.

Although it the responsibility of 2GB to ensure the accuracy of information presented, however even without researching industry and academic journals, the fall in demand for electricity has the subject of many articles in the print media for several months. It might have been expected that any commentator should have been aware of the dramatic change in electrical demand.

My assertion is that the statement, as read by Mr Alan Jones, and the subsequent statements by Mr Alan Jones do not comply with clause 2.3 (a) of the code in that the reporting of factual material was not clearly distinguishable from commentary and analysis.

I further assert that the statement, itself, does not comply with clause 2.3 (c) of the code in that viewpoints expressed to the licensee for broadcast in the statement were misrepresented and material was presented in a misleading manner by giving wrong or improper emphasis. I refer to omission of dates and demand requirements, as outlined above. I also refer to statements made by the management of the Munmorah power station, regarding other factors why the power station was closed (see Part three).

I further assert that the presentation of the statement, combined with the subsequent statements, as made by Mr Alan Jones, do not comply with clause 2.3 (c) of the code in that the material, the statement, was presented in a misleading manner by giving wrong or improper emphasis. Again I refer to the omission of dates and demand requirements, as outlined above. I also refer to statements made by the management of the Munmorah power station...

Code 2.3(b) of the Codes

Clearly the Carbon Tax is a controversial issue which has immediate relevance to the community. Hence linking the closure of the Munmorah Power Station or the closure of any power station to the Carbon Tax is controversial and of relevance to the community. I would further point out that the closure of the Munmorah Power Station has been the subject of much discussion on many radio programs and many articles have been written in the print media about the closure. Indeed the management of Munmorah Power Station, themselves, point to the age of the plant, the high cost of maintenance and low demand as major causes for the closure of the plant. I do not present a complete argue [sic] why the Munmorah Power Station closed and other power stations are not producing; I do provide sufficient information to assert that there are many divergent and significant viewpoints that were not presented. In my opinion any person even remotely aware of the subject would be aware of the controversial nature of the opinions expressed in the statement, as read by Mr Alan Jones and the subsequent statements made by Mr Alan Jones.

My assertion is that the statement, as read by Mr Alan Jones, and the subsequent statements by Mr Alan Jones do not comply with clause 2.3 (b) of the code of practice in that reasonable efforts were not made to present significant viewpoints when dealing with the controversial issue of public interest.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 22

Also on the 17th October, 2012, during his radio program, Mr Alan Jones made several statements regarding the impact of the Renewable Energy Targets on energy security and energy security in general. Again, both these topics are controversial and there are many divergent and knowledgeable opinions that energy security is not an issue in Australia and that the Renewable Energy Target is not a threat to energy security in Australia.

Again my assertion is that the statements made by Mr Alan Jones regarding energy security and the Renewable Energy Target are controversial and don’t comply with clause 2.3 (b) of the code of practice in that reasonable efforts were not made to present significant viewpoints when dealing with the controversial issue of public interest.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 23

Attachment 4Licensee’s SubmissionsCode 2.2(a) of the Codes

On 8 February 2013, the Licensee submitted the following to the ACMA:

… In its Investigation Report 259, 2614 & 2636, the ACMA has made the following findings concerning Code 2.2(a):

It does not impose a best efforts obligation and does not impose an absolute obligation of accuracy; however, material cited as evidence of satisfaction of the obligation should be commensurate with the nature and gravity of the subject matter. (at page 4)

Enclosed with this letter is an audio recording of the segment that is the subject of the complaint. A significant part of the segment includes an on-air discussion between the presenter and the complainant.

We have identified that the following factual material is presented in Mr Jones’ commentary during the opening part of the segment:

The Yallourn Power station, a major brown coal station in Victoria, Latrobe Valley, today announced that it will scale back electricity production by shutting down one of its 4 units.

Yallourn says the carbon price is driving up operating costs and the government renewable energy target is threatening the sustainability of the electricity market.

It says the renewable energy target is suppressing wholesale power prices to uneconomic levels which will end up costing consumers $53 billion.

Yallourn’s decision means that more than 3,000 mega watts of coal fired power generation capacity has been cutback or closed in recent times.

Queensland Stanwell Corporation will close 2 of its production units. Alinta Energy has closed the Munmorah Power Station in the Hunter Valley.

This factual material is sourced from and substantiated by:

1. An article published by The Australian on 17 October 2012;

2. An article published by the Australian Broadcasting Corporation on 17 October 2012; and

3. a press release published by Energy Australia.

These three documents were annexed to the Licensee’s submissions. The Licensee then continued as follows:

During the second half of 2012, at the ACMA’s instigation, 2GB has worked with the ACMA to develop a suitable response to the ACMA’s Code 2.2(a) breach findings in Investigation Reports 2540, 2597, 2614 and 2636. Both 2GB and the ACMA have focused on fact-checking processes implemented in the discharge of the reasonable endeavours obligation. In the course of that review, the ACMA accepted that 2GB could discharge its reasonable efforts obligation through the use of factual material that substantiated by media sources.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 24

On 5 April 2013, the Licensee further submitted the following to the ACMA:

With respect, we suggest that the ACMA’s construction of the Code 2.2(a) requirement to present factual material as accurate is incorrect insofar as you have construed the requirement to extend beyond the actual statements contained in the broadcast so that it also includes the “impressions” arising out of the subject statements.

In this case, the relevant statement of fact in the broadcast is as follows:

Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.

There would appear to be no dispute that this is a factually correct statement.

However, you have also suggested that the requirement for factual accuracy extends beyond this actual statement to an impression formed in the mind of a particular listener (the complainant), being the following impression:

Both the Munmorah station in the Hunter Valley and Alinta Energy’s coal-fired production units were forced to close solely as a result of the Gillard government’s carbon-pricing scheme.

Obviously, impressions are formed in the mind of an individual listener and different listeners will form different impressions of broadcast statements of fact. By way of example, the following are some other impressions that different listeners might form from the statement above having regard to the context of the segment:

The Carbon Tax was not the sole, but the principle, cause in the closure of these production units.

The Carbon Tax was one of several contributing causes to the closure of these production units.

The closure of these production units has occurred in the context of a series of other similarly powered electricity production units – which have followed the introduction of the Carbon Tax.

The obligation in Code 2.2(a) is an obligation only of reasonable efforts and not a best efforts or absolute obligation. Having regard to that important distinction, the obligation does not extend beyond the actual statements in the broadcast itself to the various different impressions that may arise out of the statement in the minds of different part of the audience. Those minds will differ in the “impressions” that they form of the meaning of the statement.

In our view, the various impressions that may arise out of statements of fact such as this statement are more in the nature of opinion than in the nature of fact. The complainant seeks to regulate comment and opinion under Code 2.2(a) by extrapolating his own impressions from the actual statement actually contained in the broadcast.

We note that the complainant does not contest the factual accuracy of the statement itself.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 25

On 12 April 2013, the Licensee further submitted the following to the ACMA:

With respect, we consider that the ACMA has misinterpreted and misapplied Code 2.2 in the context of 2GB’s broadcast on 17 October 2012 of the subject segment.

The ACMA appears to construe the requirement of Code 2.2(a) to require a broadcaster to take reasonable efforts to ensure accuracy of both:

1. statements of fact that are contained in a current affairs program; AND

2. the impressions/inferences/implications that may arise from such statements of fact.

The language of Code 2.2(a) does not expressly or impliedly extend to a requirement for accuracy of secondary facts arising out of the factual statements contained in a broadcast segment. The requirement of Code 2.2(a) relates only to factual “material”. The Macquarie Dictionary definition of material includes the following various alternative definitions:

the substance or substances of which a thing is made or composed

any constituent element of a thing

anything serving as crude or raw matter for working upon or occupation

We consider that these definitions, applied in the context of Code 2.2(a), confine the operation of Code 2.2(a) to the statements of fact that are constituent parts of a segment and not to secondary, derivative and contestable impressions arising out of clear statements of fact.

The statement of fact contained in the subject segment is abundantly clear. It is in the following terms:

EXPRESS STATEMENT OF FACT: Alinta Energy has closed coal-fired production units in South Australia and Delta Energy has closed the Munmorah station in the Hunter Valley.

There is no question of ambiguity or doubt as to the meaning of this statement of fact. Accordingly, it is not necessary to seek new and alternative meanings for this statement.

In the context of a live to air broadcast, we also consider that a requirement to support both the express statements of fact and also implied facts (or facts formed by impression) are beyond the scope of a “reasonable endeavours” obligation and are pitched at the much higher “best endeavours” or absolute obligation levels.

We are not aware of any caselaw that supports the ACMA’s approach on Code 2.2(a). Obviously, we would be very happy to consider such authority and would appreciate the ACMA sharing with us the legal basis for its approach. It may well be that our disagreement with the ACMA can be simply resolved by reference to judicial authority.

In a context in which 2GB disagrees with the ACMA’s approach and construction of Code 2.2(a), you will appreciate that we reserve all rights notwithstanding that we have provided below and by way of the three attachments to this email substantiation for the following statement that the ACMA has implied into the subject segment:

ACMA’S IMPLIED STATEMENT: The Carbon Tax was responsible for the Delta and Alinta Energy power station closures

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 26

In relation to the Delta power station closures, the ACMA’s statement is substantiated by the following extracts from the attached media articles:

ABC News online Future of SA’s power supplies at stake: “Alinta Energy has said it will wind down its brown coal fired Playford Power Station in the northern city of Port Augusta because of the the carbon tax”

adelaidenow online: (1) Workers at the briefings have told The Advertiser the 1985- commissioned Northern Power Station will only operate for six months of the year, when the company can command the best wholesale electricity prices during hot weather and high demand. The high-polluting and antiquated 1963-commissioned Playford Power Station will be permanently closed - its fate sealed by the introduction of a carbon tax in July; (2) Atlanta [sic] had been seeking Federal Government funding to close it because of the introduction of the carbon tax.

In relation to the Alinta Energy power station closures, the ACMA’s statement is substantiated by the following extracts from the attached media article:

1. ABC The World Today online: (1) GREG EVERETT: The decision itself was really about the higher costs and the reducing demand for electricity. Carbon tax was simply the final consideration that put the question beyond doubt. (2) GREG EVERETT: Well the power station was not economic to operate before there was a carbon price. Once you add a carbon price and our inability to recover all of that tax that was just a further burden that put beyond question whether we could operate at some time into the future on a cash positive basis.

On 30 July 2013, the Licensee also submitted the following to the ACMA:

...[In the investigation reasons], the ACMA has:

departed from the agreed approach; and

adopted a different and more burdensome approach to the reasonable endeavours requirement without real regard for the nature of 2GB’s programming format.

The ACMA’s new approach is formulated in the following statements, which are reproduced [in a separate investigation report] (and appear in substantially the same terms in [the current investigation]).

What efforts are reasonable in a given situation will depend on all the relevant circumstances. While the relevant provision does not impose an absolute or best efforts obligation to ensure factual material is reasonably supportable as being accurate, the material relied upon to support the accuracy of a fact should be commensurate with the nature and context of the subject matter.

The ACMA accepts that, in many (if not most) situations, reference to a current mainstream media source will be indicative of reasonable efforts. However, any assessment of reasonableness must also take account of credible material that throws doubt on the accuracy of such a mainstream media source, where it is practicable and reasonable for the licensee to make use of such material.

With respect, the ACMA’s tests are rather vague at best and unhelpful and confusing at worst.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 27

“Whatever the circumstances require” test

In this test, the circumstantial reference suggests that reasonable efforts is determined not by practices and procedures applied routinely in the course of production, but rather, by an independent consideration of “the circumstances” of the factual material to the broadcast on each occasion.

... [T]he ACMA does not provide any express guidance on how the “circumstances” in those particular broadcasts are to be analysed to determine whether additional steps are required above and beyond reliance on mainstream media sources. Rather, after the event and with the benefit of hindsight, the ACMA confirms that the facts published in mainstream media sources and used to substantiate 2GB’s commentary in those cases are inaccurate and so that reasonable endeavours have not been discharged.

In the current iteration of the [report], the ACMA’s approach appears to be as follows:

At the time of the broadcast, media releases were available that appeared to contradict factual material that was contained in mainstream media sources and was used by 2GB’s presenters.

The media releases were credible.

If conflicting and credible media releases are available, the reasonable efforts obligation requires discovery and investigation of such media releases before the presenter can rely on factual material contained in mainstream media sources.

The ACMA does not identify the basis or reason for its view that the mere existence of conflicting credible media releases triggers a reasonable endeavours obligation – as distinct from a best endeavours or absolute obligation – to discover and investigate the conflicting media releases.

In our view, this higher obligation of endeavour is closer to the journalistic method of inquiry and fails to reflect the nature of 2GB’s comment and opinion based format.

Proportionality test

In addition to the “whatever the circumstances require” test, the ACMA also suggests a proportionality requirement whereby the material that is used by the licensee must be commensurate with the nature and context of the subject matter. This test suggests that important issues require substantiation by reference to more weighty sources and that issues of lesser importance can be substantiated by less weighty sources. This test suggests a hierarchy of sources, with some sources afforded higher weight and other sources afforded lesser weight.

While the ACMA proposes this test of proportionality, it does not illustrate in [the report] how the test of proportionality was applied by the ACMA for the relevant broadcasts. The ACMA has not itself provided reasons why the nature and context of material broadcast was so weighty that 2GB was required to discover and investigate conflicting media releases to satisfy the reasonable endeavours obligation.

In our view, this test of proportionality is somewhat artificial and again fails to reflect the nature and production of 2GB’s comment and opinion programming format.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 28

Code 2.3(a) of the Codes

On 3 June 2013, the Licensee submitted the following in relation to Code 2.3(a) of the Codes:

The segment comprises two parts, being:

1. the introductory editorial presented by the presenter, Mr Jones; and

2. the complainant caller’s on-air comments and discussion with Mr Jones.

The presenter sets out factual material and comment/opinion in the introductory editorial. In our view, the factual material is clearly distinguishable from the presenter’s comment and opinion.

This was followed by a transcript of the First Segment, with the portions highlighted that the Licensee considered to have consisted of factual material. On the version viewed by the ACMA, however, these highlighted portions were not visible. Given that the ACMA has found no breach in relation to Code 2.3(a), however, no further clarification from the Licensee on this point was required.

The Licensee then continued as follows:

The factual material is distinguishable from surrounding commentary by reason of content; grammatical structure; and contrast in the presenter’s tone and style.

Code 2.3(b) of the Codes

On 3 June 2013, the Licensee submitted the following in relation to Code 2.3(b) of the Codes:

Code 2.3(b) is concerned with controversial issues of public importance. In our view, the subject matter of the relevant segment is:

Specifically, the closure of coal fired power stations by Yallourn in the Latrobe Valley, Victoria; and

more generally, the implications of the closure of coal fired power stations for power pricing and economic security.

We are not aware that either:

the specific event of Yallourn’s closure of the Latrobe Valley coal fired power stations; or

the general issue concerning the implications of the closure of coal fired power stations,

were controversial issues. We are not aware that this event or the general issue garnered widespread media coverage, or that they generated dispute, debate or contention; or disputation concerning a matter of opinion (see the definition of controversy in the Macquarie Dictionary).

In any case, in our view, the complainant himself was provided with a reasonable opportunity to present an alternative viewpoint during the course of his on-air comments and discussion with Mr Jones.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 29

Code 2.3(c) of the Codes

On 3 June 2013, the Licensee submitted the following in relation to Code 2.3(c) of the Codes:

Other than the presenter’s viewpoint, the only other viewpoint that was presented during the course of the segment was the complainant’s own viewpoint.

The complainant presented his own viewpoint without the aid or assistance of the presenter and of his own volition. To the extent that his viewpoint was misrepresented during the broadcast, he is himself the cause of that misrepresentation.

Code 5.5 of the Codes

On 8 February 2013, the Licensee submitted the following to the ACMA in relation to Code 5.5 of the Codes:

The obligation in Code 5.5 is conditional on 2GB’s receipt of a complaint. After making due internal inquiry, we can confirm that 2GB has no record of receipt of [the complainant’s] complaint set out in the letter dated 9 November 2012 provided by [the complainant] as part of his complaint to the ACMA. Accordingly, Code 5.5 does not apply.

On 16 May 2013, after having been asked to provide details of its complaints-handling procedures, the Licensee submitted the following in relation to Code 5.5 of the Codes:

As far as our mail procedure goes, we don’t have a logging system whereby each letter received or sent is entered into a log book. When mail is received it is placed into a pigeon hole for each employee. We don’t have a huge work force so mail rarely, if ever, is misplaced. Any mail addressed to the Program Director or General Manager are placed in [the Licensee’s Program Director’s] pigeon hole; similarly any that are just addressed to “2GB” are placed in [the Licensee’s Program Director’s] pigeon hole.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 30

Attachment 5The Alinta Energy Media ReleasesThe first media release issued by Alinta Energy, dated 20 April 2012, is as follows:

Alinta Energy clarifies market reports

20/04/2012

Alinta Energy wishes to clarify some incorrect media reports regarding operations of the Flinders power stations at Port Augusta in South Australia.

Alinta Energy wishes to clarify some incorrect media reports regarding operations of the Flinders power stations at Port Augusta in South Australia.

Alinta Energy has notified the market of our intention to only operate the Northern Power Station during the period from October to March for the immediate future. The Playford Power Station is not intended to operate at any time during the year. Both power stations will however remain available for operation if required to ensure energy security.

The Playford Power Station will not be permanently closed. The Playford Power Station will remain available for operation throughout the year, and will be operated in circumstances where it’s economic to do so, including during summer to support the Northern power station. However Alinta Energy still intends to participate in the Federal Government’s contract for closure program for Playford, and is waiting for a decision to be made as part of this process. Alinta Energy continues to assess the economic viability of alternative generation options at the Port Augusta site, including renewables such as solar thermal.

This decision has been made based purely on market conditions as Alinta Energy is not receiving adequate market returns to operate during those months. The decision is not being made because of the price on carbon. During non-operating periods key maintenance and other activities will be conducted to ensure operational reliability during the summer months.

This is not an exercise to cut employee numbers, the arrangement is intended to be transitional and if the market turns-around, and it becomes cost-effective for the stations to return to traditional baseload generation, we will review this arrangement at that time. The reported job losses for 20 people are not correct. No decisions on staffing changes for this new operating regime have been made.

In relation to the reported health concerns at Port Augusta, Alinta Energy is committed to the health and well-being of the Port Augusta community and the local environment. Alinta Energy complies with all the conditions of its licences and is not aware of any evidence that the health concerns reported are in any way connected with its operations.

The second media release issued by Alinta Energy, dated 9 September 2012, is as follows:

Contract for Closure

9/09/2012

Alinta Energy respects the Federal Government’s decision to not proceed with the Contract for Closure Program, clearly the views on commercial asset value were out of alignment

Alinta Energy respects the Federal Government’s decision to not proceed with the Contract for Closure Program, clearly the views on commercial asset value were out of alignment.

In light of today’s announcement Alinta Energy is considering the implications for the Flinders assets in SA and the potential for investment in solar thermal power.

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 31

Northern Power Station will operate as planned for the summer period (October to March) and Playford Power Station “whilst not currently operating” remains available for recall subject to market conditions including the impacts of carbon pricing.

Background

Alinta Energy owns and operates the Flinders assets which comprise two power stations in Port Augusta, SA and the Leigh Creek Coalmine and township. Playford Power Station is a 240MW coal fired station commissioned in 1963 with a mid life refit in 2005 and Northern Power Station is a 540MW coal fired station commissioned in 1985.

The third media release issued by Alinta Energy, dated 14 September 2012, is as follows:20

Northern Power Station return to service

14/09/2012

In April 2012, Alinta Energy notified the market of its intention to only operate the Northern Power Station at Port Augusta during the summer period from October to March. Since April, Alinta Energy has undertaken key maintenance activities at the power station and a major renewal effort at the Leigh Creek coal mine.

In April 2012, Alinta Energy notified the market of its intention to only operate the Northern Power Station at Port Augusta during the summer period from October to March. Since April, Alinta Energy has undertaken key maintenance activities at the power station and a major renewal effort at the Leigh Creek coal mine.

Greg McIntyre, Plant Manager Augusta Power Station said “We are really pleased with the results achieved in removing the Northern Power Station Units from service and conducting a major program of work to ensure their reliability and efficiency upon return to service.

It’s a credit to our employees and contractors to have planned and developed the systems, and then executed the actions in a safe and professional manner. We look forward to starting up operations with Northern Power Station being available for the summer operating period.”

 Northern Power Station will return to service in a staged approach with Unit 2 returning to commercial operation on 19 September 2012. This will be followed by the re-commissioning of Unit 1 by 1 October 2012.

Playford Power Station whilst not currently operating remains available for recall.

20 http://alintaenergy.com.au/Everything-Alinta-Energy/News/Northern-Power-Station-return-to-service

ACMA Investigation Report 2962 – Alan Jones Breakfast Show broadcast by 2GB on17 October 2012 32