Last week closed with commentators hot under the collar about the ACMA findings on Alan Jones, but precious few having actually read the report, despite a plea from the regulator that commentators do so before shooting from the hip.

A reasonable thing to ask, one might think, but not many will comply partly because the report is so badly written. It is wordy, repetitious, lacking a clear executive summary and in need of a very good sub-editor. As a result, commentators on both sides of the debate have been getting away with nonsense.

Former ABA chair David Flint implied last week that the authority had done a slapdash job, not listening to all the broadcasts. Reading the report reveals that this is rubbish. ACMA considered the broadcasts exhaustively, in context and in total.

Going to the opposite extreme, former Australian Broadcasting Authority board member Michael Gordon-Smith opined that the report was “more than 80 pages of closely argued, carefully footnoted, legal detail…It’s a major piece of scholarly research and analysis.”

This is also nonsense. The report is not “more than 80 pages” but just 39 wordy and repetitious ones. Transcripts of Jones’s broadcasts make up the rest of the page count. Nor is the report particularly scholarly. It adopts that tired old chestnut of media law, the reasonable listener test, without any apparent awareness of the work that has been done to cast doubts on the usefulness of that concept.

At best, the ACMA report could be described as workmanlike. There is nothing in it to justify the fact that it took more than year between ACMA receiving the complaints, and the findings being released. So perhaps it is time to attempt to summarise what the ACMA Report actually said, and how the regulator arrived at its findings.

The test of whether Jones broke the relevant Code of Practice, ACMA says, is not whether he actually incited violence or vilified people on the basis of their ethnicity, but whether the “ordinary reasonable listener” would consider that he had done so.

Having clarified that and trawled the Macquarie Dictionary at length for definitions of words including “vilify” and “ethnicity”, ACMA found that out of the five broadcasts which were the subject of complaint, Jones had overstepped the line in only two – twice for vilifying people on the basis of their ethnicity, and once for inciting violence.

The first broadcast was on 5 December 2005 – the day after a violent incident in which surf lifesavers were bashed. The complaints concerned the following exchange:

Caller: Alan, um, just saw some snippets from the news, Channel 9, of the horrendous bashing…
AJ: …appalling
Caller: …or if you like, gang attack on the beach in Cronulla yesterday. I mean what type of grubs do we have in this … (indistinct)
AJ: What kind of grubs? Well, I’ll tell you what kind of grubs this lot were. This lot were Middle-Eastern grubs.
Caller: There we go.
AJ: And, you’re not allowed to say it, but I’m saying it…

This was not vilification, ACMA said, because the term “grubs” was being used “in the broad sense to ask what sort of people, generally, could be responsible for the attack being discussed.”

The ordinary reasonable listener would understand that it was the behaviour, rather than the ethnicity of the perpetrators, that was under attack.

 

On 6 December, Jones was in conversation with another caller:

Caller: If the police can’t do the job, the next tier is us.
AJ; Yeah, good on you, J…
Caller: Now, my grandfather was an old digger and he used to say to me when we were growing up, ‘Listen, shoot one, the rest will run’.
AJ: [laughing]
Caller: Right?
AJ: …yes [laughing]

But this was okay too, according to ACMA:

On listening to the broadcast, ACMA considers that, on balance, the presenter’s comments…and laughter do not have a tone indicating approval of the comments, but rather would be heard by the ordinary reasonable listener as signalling closure of the conversation and that the closing comments were not to be taken seriously or as an endorsement of such action.

The broadcast that got Jones into most trouble was the next day, on 7 December, when he read a message from a listener containing the words:

My suggestion is to invite the biker gangs to be present at Cronulla Railway station when these Lebanese thugs arrive, the biker gangs have been much maligned but they do a lot of good things – it would be worth the price of admission to watch these cowards scurry back onto the train for the return trip to their lairs.

ACMA thought this overstepped the line:

The suggestion to invite bikers gangs to intimidate Lebanese rail passengers was made in the context of other comments which gave the impression that people of Lebanese background or people of Middle-Eastern background were forming gangs intent on causing harm to “Australians”, had no respect for the law and that existing law enforcement agencies were powerless.

ACMA considered 2GB’s arguments that Jones’s listeners were elderly and unlikely to be incited, and also the lack of evidence that Jones’s comments caused violence, but said it wasn’t necessary to prove a causal link between broadcast and violence:

All that must be demonstrated is that the ordinary reasonable listener would regard the broadcast as likely to (vilify or incite violence).

ACMA also considered the fact that Jones elsewhere in the broadcast had discouraged vigilantism, but said:

ACMA has relied on the knowledge and experience of its members in forming its view that it is unlikely that all of the program’s listeners would…listen to the entire program. Consequently, while the above comments may mitigate the emphasis of the program, it is considered that, weighed against the more proximate comments which invoked fear and endorsed an invitation to violence, they were not sufficient to ameliorate the overriding message.

ACMA concluded that on this day, Jones both vilified people on the basis of their ethnicity, and incited violence.

The next day, 8 December, was the most notorious broadcast in which Jones discussed and read out the text messages that were circulating encouraging vigilante action:

AJ: And the message urges Aussies yesterday to take revenge against Lebs and Wogs. Now, it’s got pretty nasty when you start talking like this. It says, “This Sunday, every Aussie in the Shire get down to North Cronulla to support Leb and Wog bashing day”.

In a discussion with a caller, Jones suggested that the Pacific Islander people should be invited because:

AJ: They don’t take any nonsense…They’re proud to be here. All those Samoans and Fijians, they love being here…Proud to be here. And they say you step out of line look out, and of course cowards always run, don’t they?
Caller: They will run like scalded rats.

ACMA said this was not incitement to violence, because although quoting the text messages was “ill judged” Jones did not endorse them and made clear statements discouraging violence:

The discussion concerning the encouragement of “Pacific Island people” occurred towards the end of the broadcast…it is unclear what Mr Jones was attempting to say or imply.

Therefore it would not be seen as incitement to violence, ACMA said.

But on this same day, ACMA said that Jones did vilify people on the basis of their ethnicity, with a number of comments including the following:

AJ: Yeah, let’s not get too carried away… we don’t have Anglo-Saxon kids out there raping women in Western Sydney. So let’s not get carried away with all this mealy-mouthed talk about there being two sides. I can tell you, because my correspondence here from mums and dads I am inundated, and I don’t hear people complaining about Catholics and Protestants and Anglicans, I’m sorry, but there’s this religious element in all of this and we’ve got to make sure that we welcome people into our community but we welcome them in on certain terms and certain standards and those standards are not being met. So let’s not have this mealy mouth talk about oh well, everyone’s to blame. All across Sydney there is a universal concern that there are gangs, the gangs are of one ethnic composition, and they have one thing in mind.

Lastly, ACMA considered the broadcast of 9 December, in which there was general talk of Muslims taking over Australia and the like. ACMA gave Jones a green light:

ACMA considers that while some of the material may have been capable of giving offence, when considered in the context of the program, it was not so strong as to be likely to vilify or incite or perpetuate hatred.

So what are we to make of all this? I have already given my opinion of the ACMA report elsewhere. There is no evidence here of persecution or “gunning” for Jones. If anything he got off lightly.

ACMA recognised the public interest in the issue being discussed, and in letting Jones off for the “Middle Eastern grubs” comment, ACMA effectively gave a tick to strongly worded commentary. Jones did not act in good faith, they said, because he wasn’t careful and responsible in the way he discussed the issues.

Those who claim the regulator’s tardy and relatively gentle findings are an attack on freedom of speech should remember the well worn fact, none the less true for being a cliché, that freedom brings with it responsibilities.

Doubtless, in other contexts, Jones and his supporters would agree.

Jones and 2GB were found to be in breach of a code of practice devised by the industry. They are using a public asset – the broadcasting spectrum. And nobody is taking away their right to broadcast.

The most that is likely to happen is a demand that they be more careful.