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Investigation Report 3055File No. ACMA2013/865

Licensee 2Day FM Sydney Pty Ltd

Station 2DAY

Type of Service Commercial Radio

Name of Program The Dan & Maz Show

Date of Broadcast 28 March 2013

Relevant Code Clauses 1.1(e) and 5.4 of the Commercial Radio Australia Codes of Practice and Guidelines 2011.

Date Finalised 24 July 2013

Decision No breach of clauses 1.1(e) and 5.4 of the Commercial Radio Australia Codes of Practice and Guidelines 2011.

ACMA Investigation Report – The Dan & Maz Show broadcast by 2DAY on 28/3/13

The complaintOn 9 May 2013 the Australian Communications and Media Authority (the ACMA) received a complaint about a segment of The Dan & Maz Show broadcast on 28 March 2013 by the licensee of 2DAY, 2Day FM Sydney Pty Ltd.

The complaint is that the segment contained ‘discriminatory content about people with a gluten allergy saying it wasn’t a real thing’. The complainant also raised issues about the handling of his complaint by the licensee.

The complaint was referred to the ACMA for investigation, and has been considered against clauses 1.1(e) [proscribed matter] and 5.4 [telephone advice] of the Commercial Radio Australia Codes of Practice and Guidelines September 2011 (the Codes).

The programThe Dan & Maz Show is broadcast on weekdays between 6pm and 8pm and is presented by Dan Debuf (Dan) and Maz Compton (Maz). Dan is described on the station website as ‘the self-proclaimed eccentric radio & TV broadcaster who puts the Dan in The Dan And Maz Show’.1

In the segment of 28 March 2013, Dan discussed his dislike of shops and shopping generally, and made remarks about a gluten free shop which he referred to as a ‘metaphor for the shopping industry as a whole’ and referred to the recent increase in the incidence of Coeliac disease.

A transcript of the segment is at Attachment A.

AssessmentThe investigation is based on submissions provided by the complainant and the licensee, and a copy of the broadcast provided to the ACMA by the licensee. Other sources have been identified where relevant.

Ordinary, reasonable listenerIn assessing content against the Codes, the ACMA considers the meaning conveyed by the relevant material broadcast. This is assessed according to the understanding of an ‘ordinary, reasonable’ listener. That is, what message the ordinary, reasonable listener would have understood was being conveyed by the material that was broadcast.

Australian courts have considered an ‘ordinary, reasonable' reader (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 affairs2.

1 www.2dayfm.com.au/shows/the-dan-maz-show/the-team/ 2 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 164–167 (references omitted).

ACMA Investigation Report –The Dan & Maz Show broadcast by 2DAY on 28/3/13 2

http://www.2dayfm.com.au/shows/the-dan-maz-show/the-team/

The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone and inferences that may be drawn.

Once this test has been applied to ascertain the meaning of the broadcast material, it is for the ACMA to determine whether the material has breached the Codes.

Issue 1: Proscribed matterCode Clause

1.1(e) A licensee must not broadcast a program which, in all of the circumstances, is likely to incite hatred against, or serious contempt for, or severe ridicule of, any person or group of persons because of ... disability....

The principles applied by the ACMA in assessing content against the obligation in clause 1.1(e) of the Codes are set out at Attachment B.

Complainant’s submissionsThe complainant’s submissions are set out at Attachment C.

Licensee’s submissionsThe licensee’s submissions are set out at Attachment D.

FindingThe licensee did not breach clause 1.1(e) of the Codes.

ReasonsIn order for a breach of clause 1.1(e) of the Codes to have occurred, the ACMA must be satisfied that the relevant comments:

1. identified a person or group of persons with an attribute referred to in clause 1.1(e) of the Codes; and

2. were, in all of the circumstances, likely to incite hatred against, serious contempt for, or severe ridicule of, the person or group of persons because of the relevant attribute.

Relevant person or group of persons

Based on its assessment of the broadcast and the complaint, the ACMA considers that the relevant person or group is those who suffer from Coeliac disease.

Relevant attribute

Clause 1.1(e) refers to a number of attributes, the most relevant in this case, ‘disability’. The Macquarie Dictionary (Fifth Edition) provides the following relevant definitions:

‘disability’

1. lack of competent power, strength, or physical or mental ability; incapacity.

2. a particular physical or mental weakness or incapacity.

3. Law lack of legal capacity.


‘Coeliac disease’

a congenital disorder characterised by diarrhoea due to intolerance of the bowels to gluten

The ACMA considers that under these definitions, people who suffer from Coeliac disease may be described as having a disability.3

It is noted that Dan made reference to people who suffer Coeliac disease as follows:

Ah now Coeliac supply shop automatically is a bit of a red flag for me. That’s for people who are like ‘I don’t eat gluten. I can’t eat gluten’ [puts on feminine voice].

[F]or centuries people have been eating gluten, you can’t eat gluten now? That’s just a thing that’s happened with humanity? Why for decades haven’t we been dropping dead because of the gluten plague that is sweeping the nation! We built whole societies on wheat and agriculture but ‘I can’t eat gluten, yeah, sorry, no gluten, I’ve got to go to the Coeliac supply store’.

I can eat bread, sucked in Coeliacs. Anyway, and it’s delicious, and I don’t have to pay an extra dollar fifty for my pizza.

An ordinary reasonable listener would have taken it that the presenter made a generalisation that Coeliac disease is unfounded or trivial, and that its sufferers feign their illness.

The ACMA is satisfied that the comments contained elements of ridicule and contempt towards people who suffer from Coeliac disease because of their disability. However, having regard to all of the circumstances of the segment, the ACMA considers that it was not in breach of clause 1.1(e) of the Codes.

This is because the Codes set a high threshold for the likely effect of prohibited material; the definitions of ‘serious’ and ‘severe’ (Attachment B) contemplate that it arouses in the audience very strong reactions of hatred, contempt or ridicule towards the relevant group. It is not sufficient that the program induce a mild or moderate reaction. Further, the material must include something more than the use of words that merely convey contempt or ridicule towards the group. There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others.

The ACMA makes the following observations about the circumstances in which the comments were expressed:

The tone was jocular and light-hearted, and was presented in the context of light entertainment.

The comments were histrionic and exaggerated and would not have been understood as a literal attack on people who suffer Coeliac disease or as a call to action against them.

It was apparent that Dan was not well-informed on the topic, as his co-presenter on occasion corrected his misuse of the term gluten instead of gluten free.

3 The ACMA has also had regard to information on the Australian Institute of Health and Welfare regarding disabilities associated with chronic diseases - http://www.aihw.gov.au/disability-associated-with-chronic-diseases/


http://www.aihw.gov.au/disability-associated-with-chronic-diseases/

http://www.aihw.gov.au/disability-associated-with-chronic-diseases/

The focus of the segment was not Coeliac disease but the reasons for Dan’s aversion to shops and shopping. In this regard, other examples were used including those of store owners trying to sign customers up to their database.

The audience of the program would understand and be familiar with Dan’s irreverent presentation style. Dan’s co-presenter’s earlier statement to Dan that ‘you hate society’ suggests that it is not uncommon for Dan to be critical when discussing social issues.

There was nothing in the segment that would be understood as ‘stirring up’, inviting or stimulating listeners to act against people who suffer from Coeliac disease because of their disability.

The ACMA is satisfied that the segment, in all of the circumstances, was not likely to incite hatred against, serious contempt or severe ridicule against people with Coeliac disease because of their disability.

Accordingly, the licensee did not breach clause 1.1(e) of the Codes.

Issue 2: Telephone adviceCode Clause

5.1 For the purposes of this Part, a complaint is an assertion:

(a) made in writing by letter or fax by a person who signs the letter or fax and provides his or her name and address or, where the licensee has technological capacity, by an online electronic complaint form in which identifying information of the complainant is required.

(b) to a licensee or a person at the radio station concerned who is acting with the apparent authority of the licensee;

That the licensee has broadcast matter which, in the opinion of the complainant, breaches these codes. Complaints need not specify the particular section of the Code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.

...

5.4 Listeners who telephone a station alleging a breach of the Codes, and who wish to make a complaint, will be asked to make the complaint in writing, in accordance with the provisions of clause 5.1.

...

5.7 If a complaint is made more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged to comply with this Code of Practice 5.

Complainant’s submissionsThe complainant’s submissions are set out at Attachment B.

Licensee’s submissionsThe licensee’s submissions are set out at Attachment C.


FindingThe licensee did not breach clause 5.4 of the Codes.

ReasonsUnder clause 5.4, if a complainant rings the station and:

1. wishes to make a complaint; and

2. alleges a breach of the Codes

then the licensee is required to ask the complainant to make the complaint in writing, in accordance with the provisions of 5.1.

Under clause 5.1, a ‘complaint’ is an assertion that the licensee has broadcast matter which, in the opinion of the complainant, breaches these Codes, and is made:

1. in writing by letter or fax by a person who signs the letter or fax and provides his or her name and address or, where the licensee has technological capacity, by an online electronic complaint form in which identifying information of the complainant is required;

2. to the licensee or a person at the radio station concerned who is acting with the apparent authority of the licensee.

The ACMA has been provided with two versions of events, several aspects of which are consistent with each other. Neither the complainant nor the licensee dispute that:

1. The complainant wrote an email to the station requesting that somebody call him back in relation to a broadcast;

2. The complainant did not receive a call, and so phoned the station to follow up;

3. During that call, the complainant stated that he was following up on a ‘complaint’ that he had made, which he stated was made ‘via the website’. The receptionist advised the complainant to wait 30 days (while the licensee has submitted that the receptionist does not recollect the call, it accepts the complainant’s version).

4. When 30 days had expired, the complainant again phoned the station.

5. The complainant was advised:

a. that his original contact with the station was not a valid complaint (as it was via email); and

b. to resubmit his complaint via a relevant link on the website.

The ACMA is satisfied that the licensee did not breach the Codes in relation to both phone calls.

In relation to the first phone call, the complainant has submitted that he did not assert a breach of the Codes, but rather was ‘following up on a complaint’ already made via the website. The complainant was advised he must wait for 30 days for a response. The licensee has submitted that the receptionist who took the call does not recollect this conversation. Nevertheless, it submits that on the complainant’s account, the receptionist would likely have


assumed that a valid complaint had already been made. The ACMA accepts this submission which is not inconsistent with the complainant’s.

In relation to the second phone call, the complainant states that while he was advised to re-submit his complaint via the electronic complaints form, ‘at no point was I advised of the correct button to click’. The licensee has said ‘according to [the Executive Assistant to the General Manager], the complete Codes process was explained to the complainant’. Clause 5.1 requires a licensee to advise a complainant, among other things, that he or she must assert that the licensee had broadcast matter which, in the opinion of the complainant, breaches the Codes. Provided it did this, specifics about the relevant button to click, while helpful, is not mandatory.

Nevertheless, given the misunderstanding of the nature of the original complaint (the first phone call) the complaint was made out of time, and therefore ‘stale’ pursuant to clause 5.7 of the Codes. Clause 5.7 in circumstances where a complaint is made ‘more than 30 days after the broadcast of the material on which the complaint is based, the licensee is not obliged comply with this Code of Practice 5’.

On balance, having regard to the above circumstances, the ACMA is not satisfied that there has been a breach of the Codes. While the breakdown in communication in this situation is regrettable, the ACMA is concludes that the licensee did not breach clause 5.4 of the Codes.


Attachment A

Transcript – Dan and Maz Show – 28/3/13P1: Hey Maz...

P2: Hi Dan.

P1: You love a shop don’t you.

P2: I LOVE SHOPPINGGGGG!!!!

P1: Yeah, ‘cause you’re a woman and chicks be crazy for shoppin!

P2: I love shopping. I actually really thoroughly enjoy going to the shops, and buying clothes.

P1: Percentage of...

P2: And shoes, and handbags, and ...

P1: [chuckles]. Okay, alright

P2: ...accessories, and jewellery.

P1: Sit down babe you are about to faint. Um, percentage of your time, your awake hours, that you spend shopping? And that includes ...

P2: On a weekly basis?

P1: Yeah. That includes, you know, um...

P2: I would go for a stroll around the shops for a couple of hours...

P1: Nooo.

P2: ...every week.

P1: No no. That includes when you are at your desk going on all your internet shops.

P2: OH!!! ninety eight percent.

P1 & P3: [laugh audibly]

P2: That’s how I prep for this show!!! The iconic.com.au! No I really do. I do spend a lot of time looking at those websites when I am meant to be ... the show.

P1: It’s no secret um, I don’t like shops. I hate shops.

P2: [chuckles] you don’t like society.

P1: Yeah, but I hate having to go out and like ask a person for something, and being like, oh hey I’m at your shop, can I put your clothes on in a small room and oh’. And they go ‘oh you look so good in that!’ I’m thinking ‘I obviously don’t. So you are obviously a liar so you are obviously just trying to up sell me so I’m just going to leave. I hate going into shops and I hate... and this, this woman.

[Name of store owner], who doesn’t want her surname published, I don’t know if you’ve heard this article. But she has said - she runs a Coeliac supply shop in Coorparoo. Ah now Coeliac supply shop


automatically is a bit of a red flag for me. That’s for people who are like ‘I don’t eat gluten. I can’t eat gluten’ (puts on feminine voice).

P3: But Coeliac’s...

P2: Gluten intolerant.

P1: ‘I can’t eat gluten’. I’m like, for centuries people have been eating gluten, you can’t eat gluten now? That’s just a thing that’s happened with humanity? Why for decades haven’t we been dropping dead because of the gluten plague that‘s sweeping the nation! We built whole societies on wheat and agriculture but ‘I can’t eat gluten, yeah, sorry, no gluten, I’ve got to go to the Coeliac supply store’. So, people go to the Coeliac supply store in Coorparoo where Georgina works. But here’s the thing. And I think that this is a bit of a metaphor for the shopping industry as a whole.

She says that if you come into her gluten supply store or whatever the hell it is.

P3: Right.

P2: It would be gluten-free supplies.

P1: Right, ‘cause people are coming in and they’re just going, what?

P2: And there’d be gluten-free supplies.

P1: Yeah, okay. Alright, whatever, I don’t care.

P2: She’s not supplying gluten.

P1: I can eat bread, sucked in Coeliacs. Anyway, and it’s delicious, and I don’t have to pay an extra dollar fifty for my pizza.

P2 & P3: [laughter]

P1: She says that people are coming in chatting to her about gluten things.

P2: Gluten-FREE things!

P1: Getting all the info, and then just walking out and not buying anything. So she said you have to pay five bucks to get in the store.

P2: Just to browse?!

P1: Five dollar entry fee to get into her amazing apparently wonderful cave of gluten treasures. Apparently it’s like Aladdin for Coeliac’s inside there. You have to pay, just to get in, to Coeliac supplies. And then, if you ‘choose’ to buy something, you get your five dollars back. It’s basically the world’s crappiest theme park.

P3 & P2: [giggle].

P1: To go inside her gluten store and see her gluten treasures, you have to pay five bucks. And I say, this is a metaphor for the whole world of shops. Because this is why people are going to the internet. Because shops, are crap.

P3 & P2: laugh

P1: Shops are the worst. You know, you go into a clothing shop – ‘hey bro. Hey man. You wanna buy some drop crotched jeans? You wanna buy a V-necked shirt and a Fedora hat? You going to Stereos?’ It’s like, ‘I just want some sunglasses. I just want some sunglasses. Get away from me!’. You go to JB


HiFi – ‘Hey man you wanna buy a TV? No I just want to look at the Mac Books and touch them. That’s all I want to do!’

Oh this is the worst one though. And this is what I’ve noticed lately. Everyone wants you to join their club. Every shop you go into...

P2: Like the mailing list?

P1: Oh it’s so ...bloody annoying.

P3: Sumo society for Sumo salad now.

P1: Oh, all I want to do, all I want to do is buy one thing, take it, give you my money, I WANT TO GIVE YOU MY MONEY, and get out. ‘Oh yeah, so can I have your post code?’ ‘No!’. ‘I kinda go yeah alright there’s my post code’, ‘yeah, and um, have you been here before, are you already part of our database?’ NOOOO! I DON’T CARE - I was literally in a store, all I wanted to buy was one thing of soap. That was it. I was like ‘I want the soap, that’s all I want, just that thing of soap, give it to me’. ‘Ah, do you want to be part of our database?’ I said ‘Can I just not be part of your database, can I not give you any of my information, just give you my money, take the soap, and never talk to you again.’

And this woman, she looked so sad. It was like ‘you don’t want to be in the database? Why don’t you want our mail and our ten per cent off coupons and our other things?’.

P2: [giggles]

P1: I said ‘I just want to get the hell out of here’.

P2: You do not want to be a part of the body shop club [laughs].

P3: [Laughs audibly]

P1: Well, I JUST WANT TO SMELL NICE WITHOUT BEING PESTERED. IS THAT TOO MUCH TO ASK?!

P3: The Dan and Maz Show, across Australia.


Attachment BInterpretation of clause 1.1(e) of the Codes

The ACMA adopts the general approach set out below, when assessing whether broadcast material breaches clause 1.1(e) of the Codes.

‘In all of the circumstances, is likely to’

Use of the words, ‘in all of the circumstances, is likely to’ imposes an objective test4 and implies a real and not remote possibility; something which is probable.5

‘Incite hatred against, serious contempt for or severe ridicule of’

When a statute or code uses words which it does not define, it is usually appropriate to apply whichever of the ordinary English language meanings are most appropriate to the context in which the words are used in the statute or code.

The Macquarie Dictionary (online edition) includes the following definitions:

Incite verb to urge on; stimulate or prompt to action.

Hatred noun the feeling of someone who hates; intense dislike; detestation.

Serious adj 1. of grave or solemn disposition or character.

Contempt noun1. the act of scorning or despising.

2. the feeling with which one regards anything considered mean, vile, or worthless.

Severe verb 1. harsh; harshly extreme.

Ridicule noun 1. words or action intended to excite contemptuous laughter at a person or thing; derision.

Incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group. There is no need to establish that there was a specific intention to incite or to prove that anyone was actually incited.6 However, the material must include something more than the use of words that merely convey hatred, serious contempt or severe ridicule towards a person. ‘There must be something more than an expression of opinion, something that is positively stimulatory of that reaction in others’.7

4 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at p.12.5 Re Vulcan Australian Pty Ltd v Controller-General of Customs (1994) 34 ALD 773 at p.778-779.6 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23-29].7 Trad v Jones & anor. (No. 3) [2009] NSWADT 318 at [161].


‘Because of’

The incitement of serious contempt or severe ridicule must occur on a basis specified in clause 1.1(e) of the Codes, including disability of the person or group of persons. This means there must be a causal connection between the relevant basis, such as disability of the person or group of persons, and the feelings of contempt or ridicule that are likely to be incited by the broadcast material.8

8 Kazak v John Fairfax Publications Limited at [72].


Attachment CComplainant’s submissions

The complainant submitted to the ACMA with respect to the broadcast:

On Thursday 28th March 2013 “The Dan and Maz Show” broadcast on “The Segment” Dan’s experience about a gluten free store charging members of the public a fee to enter its premises.

He then went on to make some discriminatory and ignorant comments about people with a gluten allergy saying it wasn’t a real thing.

Upon hearing this on the date I send an email to “2DayFM” via their website complaining about the Segment. I rang up a week and a half later to follow up on my email- the station receptionist informed me they did not have to respond till 30 days after the complaint. After 30 days had passed I rang up again and they had “Lost” my initial email and said it was my fault for not making it an official complaint via the website and that the email function on the site was for “feedback”.

After this I made an official complaint and very soon afterwards received a written response back from [name of General Manager].

He expressed his regret at the situation but said that Dan was observing the number of people claiming to have a gluten allergy, not those who do have one. This was NOT what was said and I contacted him directly saying this was not what was stated and was not good enough, and that I wanted Dan to make a public apology on his show regarding the incident. [Name of General Manager] said they would not do that so I asked for a copy of the Segment to ensure any complaints I made from here on were accurate as it has now been over a month since I heard the segment.

He refused to provide one, I also tried to download the podcast which is on the website but that has mysteriously become “unavailable” whereas every other one for both the day prior and after are.

[...]

If Dan had said the same thing about people with Cancer there would have been an outrage, yet because he made fun of a serious but uncommon disease (one which my partner suffers from) he was able to get away with it. Also the fact that Southern Cross Australia has essentially covered up this broadcast by not providing the audio and “losing" my initial email also questions how ethical they are being.

In accordance with [clause 1.1(e) of the Codes], The Dan and Maz show has clearly violated by ignorantly making fun of a group of people who suffer from a serious medical condition which can lead to even more serious conditions such as stomach cancer.

...

The complainant submitted to the ACMA with respect to clause 5.4 of the Codes:

The first time I rang was on Thursday 12th April in the morning- 8:06am Perth Time [...]I rang the 2DayFM reception on (02) 9375 1041 and spoke to a woman on reception (name unknown).


I said I was following up on a complaint I sent via the website on 28th March and was told that they will respond to me within 30 days. I made a note to contact 30 days from when I sent my complaint.

The second time I rang was Monday 29th April at 10:34am Perth Time [...] I contacted the reception again on the same number and inquired why I had not received a response yet. The woman on the reception (Name unknown) asked how I made my complaint, I explained via the website and she then told me that the station is only required to reply to complaints made via the “Complaint” link and that anything provided via the website is just “feedback”. I expressed my upset and was told I could speak to a manger ... and she would ring me back.

She rang me back (no record on my phone bill as it only records outgoing calls) and after speaking to [the Manager] she explained that if I wanted to make a complaint I would have to go via the link on the website- I was also told I would not have to wait 30 days for a response and that this would be seen to immediately.

When I got onto the website there were 2 options- at no point was I told that I would need to select either “Breach of Code” or “General Complaint”. I assumed since I was complaining I just select general complaint. I also saw that given it had now been over 30 days since the initial broadcast, it would not let me select the date it was broadcast on (I made a note in my comments).

Once I received the written response and spoke to [General Manager] I was forced to escalate this matter to you, however had I been informed properly from 2Day FM, I would have made this complaint earlier and made it an official breach of code complaint.

In the first phone call, due to it being so brief, no mention of a breach was mentioned, only that I had made a complaint. In the second phone call however, I had stated that the reason for my complaint involved discriminatory content about people with a gluten allergy. Upon my conversation with both [the Manager] and [the General Manager] this was very clearly stipulated.

At no point did any person mention that my complaint would need to contain an explicit assertion that 2DAY FM had broadcast matter which I felt had breached the code- Only after my call with [General Manager] (in May) did he say if I was not happy I could complain further and that the Codes of Practice were on the website. As I mentioned before as well, at no point did they tell me I would need to click “Breach of Commercial Radio Australia Codes of Practice” button and not the “general complaint” button.


Attachment DLicensee’s submissions

In relation to clause 1.1(e) of the Codes, the licensee responded to the complainant as follows:

The Segment included our announcer Dan’s account of his experience with a gluten free store that had been charging members of the public a fee to enter its premises.

I sincerely regret that the Segment has caused you concern, especially considering that your partner has coeliac disease. I apologise for any unease caused to both you and your partner. Please be assured that it was certainly not our intention to appear to be insensitive or ignorant towards those who have coeliac disease or are gluten intolerant.

As a company we understand and acknowledge the seriousness of coeliac disease and that people who have coeliac disease do not have a choice in the diet they must follow. In fact, Dan’s comments were intended to observe the growing number of people who claim to have a gluten intolerance with no medical basis. He did not intend to make any comment on the validity of genuine medical conditions requirement a gluten free diet. In order that Dan fully understands the impact gluten can have on certain individuals, we have encouraged him to read materials from coeliac Australia to educate himself on coeliac disease.

As a radio station, we are constantly mindful of our obligations to act in accordance with community standards and to broadcast content responsibly. Your correspondence has been given due consideration and has been treated seriously. I have also sent your correspondence to our Content Director and his team for their careful review, and your comments will be taken into account when planning future content.

...

In relation to clause 5.4 of the Codes, the licensee provided the following submission to the ACMA:

We note that Clause 5.4 of the Codes stipulates that listeners who telephone a station alleging a breach of the Codes should be advised to submit such complaint in writing in accordance with Clause 5.1 of the Codes. We submit that the Complainant was so advised and accordingly that the Licensee complied with Clause 5.4 of the Codes.

We say as follows in support of this submission:

The First Call

a) The Complainant claims that he first contacted the Licensee by telephone on 12 April 2013 (“First Call”).

b) By his own account, the Complainant claims as follows in respect of the First Call:

i. That during the First Call, the Complainant had a “brief” exchange with the Licensee’s receptionist, during which the Complainant advised that the purpose of his call was to follow up a “complaint” allegedly submitted via the Licensee’s website on 28 March 2013;

ii. That during the First Call the Complainant made “no mention of a breach” of the Codes; and


iii. That in the course of the First Call the Complainant was told that, “[the Licensee] would respond to [him] in 30 days”.

c) We advise that the Licensee’s receptionist, [Name of Receptionist], does not recollect the First Call, no doubt as a result of the brevity thereof. Notwithstanding the same, we do not dispute the Complainant’s account of the First Call, and note that [Name of Receptionist] would no doubt have felt it unnecessary to advise the Complainant to submit his “complaint” in writing given that:

i. The Complainant indicated that he had already submitted a “complaint” via the Licensee’s website;

ii. The Complainant indicated that the purpose of his call was to follow up on his written “complaint”, rather than make a complaint, and

iii. The purpose of the First Call was not to allege a breach of the Codes.

d) The full context of the First Call, as noted at (c) above, clearly indicates that the Licensee did not breach Clause 5.4 of the Codes in not advising the Complainant to make a complaint in accordance with Clause 5.1 during the First Call.

e) It has subsequently been established that in communicating his concerns to the Licensee, the Complainant did not use the online “Codes” complaint form as required and as found at the following address:

http://www.austereo-static.com.au/dcds/cracomplaint/2dayfm/complaintform.html

f) Alternatively, the Complainant sought to make his concerns known to the Licensee by means of sending an email to the Licensee via the ‘general enquiry’ form at: http://www.2dayfm.com.au/contact/

g) As a result of the Complainant’s failure to make a complaint with Clause 5.1 of the Codes, his email was considered general feedback rather than a formal complaint (and shall hereafter be referred to “the Feedback”).

The Second Call

(a) The Complainant claims that he telephoned the Licensee again on 29 April 2013 (the “Second Call”).

(b) The Complainant claims that the purpose of the Second Call was to enquire as to why he had not yet received a response to the Feedback.

(c) The Licensee’s receptionist, [Name of Receptionist] has the following recollection of the Second Call:

i. That the Complainant called to follow up the status of the Feedback.

ii. That [the Receptionist] enquired as to whether the Complainant had submitted his “complaint” in writing, which the Complainant claimed he had done.

iii. That at some point in the conversation, the Complainant was alerted to the fact that he may not have submitted the Feedback through the appropriate online electronic “Codes” complaint form.

iv. That the Complainant noted that more than 30 days had elapsed since the broadcast of the Segment.


http://www.2dayfm.com.au/contact/


v. That to enable the Complainant to be further advised, [Name of Receptionist] then transferred the Second Call to [Executive Assistant to General Manager]. As [Name of Executive Assistant] was not available at the time of his call, the Complainant left a voicemail message.

(d) As a result of the foregoing, we submit that the Licensee did not breach Clause 5.4 of the Codes, and say further that:

i. While it is the responsibility of a Licensee to ensure that a caller understands the necessity of recording a complaint in writing, it is not the responsibility of the Licensee to ensure that the Complainant uses the appropriate online mechanism to do so;

ii. That the Licensee’s website makes it abundantly clear to listeners that Codes complaints must be submitted through the online “Codes” complaint form at http://www.austereo-static.com.au/dcds/cracomplaint/2dayfm/complaintform.html.

iii. That the Licensee was not required to advise the Complainant to make a “fresh” written complaint during the Second Call, as more than 30 days elapsed since the Segment was broadcast.

The Return Call

(a) The Complainant acknowledges that [Executive Assistant] telephoned the Complainant on 29 April 2013, the same day that he had left a voicemail message for her. [Executive Assistant] explained to the Complainant how to make an official complaint in writing in accordance with the provisions of Clause 5.1 of the Codes. We submit that the Licensee was not obliged to so this, given that more than 30 days had passed since the broadcast of the Segment.

(b) Even if the Licensee were in fact compelled to act in accordance with Clause 5.4, we submit that the Licensee fully discharged its duty when [Executive Assistant] telephoned the Complainant to explain how to make a valid complaint. [Executive Assistant] also advised that the Licensee would promptly respond to a complaint submitted in accordance with the Codes, despite the fact that any such complaint would relate to a broadcast that was more than 30 days old.

Subsequent Activity

The Complainant submitted a complaint via the Licensee’s online “Codes” complaint form on 30 April 2013, to which the Licensee responded on 2 May 2013. The Complainant claims that he was not told he would have to select between “Breach of Code” or “General Complaint”. As previously foreshadowed, it is our submission that this point is made clear by the Licensee’s website. Further, although the Complainant selected “General Complaint” when submitting a complaint on 30 April 2013, the Licensee did in fact prepare a substantive response to the Complaint.

Concluding Remarks

In conclusion, we submit that the Licensee’s handling of the Complainant’s Feedback did not breach Clause 5.4 of the Codes for the following reasons:

(a) The Complainant’s phone calls to the Licensee did not allege a breach of the Codes so Clause 5.4 did not apply;

(b) As the purpose of the Complainant’s phone calls to the Licensee was not to make a complaint, but to follow up the status of the Feedback, Clause 5.4 did not apply;



(c) The Complaint was made more than 30 days after broadcast of the Segment, such that it became stale and Clause 5.7 applied, and the Licensee was not obliged to comply with Clause 5 of the Codes;

(d) As soon as the Licensee was alerted to the fact that the Complainant had not used the online electronic ‘Codes’ complaint form, the Licensee advised the Complainant how to make a complaint in writing and in accordance with the provisions of Clause 5.1 as required by Clause 5.4 and;

(e) Although it was not required to do so, the Licensee substantively responded to the complaint although at that point it related to a stale complaint under Clause 5.7.

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