The Australian Communications and Media Authority yesterday  ruled against Alan Jones on one of his broadcasts leading up to the 2005 Cronulla riot.

Note the common theme in the media coverage. The Australian tells us that Jones “breached the industry’s code of practice by inciting violence during the Cronulla riots.” The Sydney Morning Herald report from AAP is headlined “Jones broadcast incited violence: ACMA”. This morning’s Age is even more explicit: “Jones ‘incited’ Cronulla violence on air”.

But this isn’t true. ACMA did not make a finding of incitement. Contrary to what The Age’s headline writer thinks, “incited” is not a quote from the ruling.

The code of practice that Jones was found to have breached prohibits material that “is likely to incite, encourage or present for its own sake violence or brutality”, or “likely to incite or perpetuate hatred against or vilify any person or group …”. But those verbs are alternatives (ACMA makes this clear in its detailed report): incitement is just one of the possible breaches, and not what ACMA found against Jones.

Should we care? Is there really that much difference between “inciting”
violence and simply “encouraging” it? ACMA itself sometimes seems to treat the two as synonyms.

But the difference is that “incitement” is a legal term, with a long history of legal interpretation. To incite someone to commit a crime is itself an offence, regardless of whether or not the crime is committed.

If Jones were really guilty of incitement, he should have been charged.

“Encouragement”, however, is more vague, akin to just “urging” or “supporting”. This was the crux of the debate a year or so ago over the Howard Government’s new anti-sedition laws, which make it an offence (among other things) to urge “a group or groups (whether distinguished by race, religion, nationality or political opinion) to use force or violence against another group or other groups (as so distinguished)” (Criminal Code s. 80.2(5))

Toxic though his rantings may be, Alan Jones should not have to face sedition charges, nor is there any likelihood that he will. But the law as it stands puts him at risk, and a less well-connected broadcaster might not escape so readily.

Peter Fray

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