Ordinary, Reasonable Listener Test is not reasonable: Opinion from Peter Saxon

Don’t get me wrong, I think ACMA does a sterling job under the circumstances. Their reasoning is generally sound. But the framework in which they operate is flawed when it comes to anything to do with “contemporary decency standards” or rulings that deal with incitement to hatred’, ‘serious contempt’ or ‘severe ridicule,” and such.

Near the beginning of each document that contains rulings on these types of issues, ACMA quotes the overarching “Ordinary, Reasonable Listener Test” as the basis upon which their deliberations are guided. In my world, only two Reasonable people exist: you, gentle reader, and, of course, me. And I’m not too sure about one of us.

Even if we give the good folk at ACMA the benefit of the doubt and assume that they too are Reasonable (after all, they are also known to read this humble publication from time to time) they could hardly be described as Ordinary. Ordinary people don’t possess their legal and administrative expertise. Note: This article is unlocked.

To define an “Ordinary, Reasonable Listener” ACMA relies on a court ruling (Amalgamated Television Services Pty Limited v Marsden) dating back to 1998 that states it is: “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.”

Sounds fair, but in reality, almost every word, every phrase is open to interpretation, particularly when the Test is applied to a specific circumstance  where an otherwise Reasonable person has a vested interest or a pre-disposed prejudice towards an issue or an individual. For example, my ex-wife considers herself a fair and reasonable person. And perhaps there’s someone living in Portugal who’d agree with her. But I don’t. Is anyone surprised?

If you think I’m being frivolous, here’s a complaint levelled at the Alan Jones Breakfast Show on 2GB that has received little publicity.

The Complainant in this case took offence at Jones’ interview with the Prime Minister when he said “…your name is not Julia but Ju-liar and they are saying that we’ve got a liar running the country.”

The complaint…

“I object to referring to our Prime Minister as a Ju (Jew).”

As ACMA states in its report: The complainant suggests that the alleged actions of hatred, serious contempt and severe ridicule were directed towards the Jewish community as a group by linking ‘Ju’ with ‘liar’.

I canvassed this with a number of Ordinary, Reasonable Jewish friends over the weekend and although most were familiar with Jones’ well-publicised statement, not one connected Ju with Jew without prompting. In fact, they were incredulous that anyone could seriously make such a complaint. The general consensus was that while Alan Jones can be accused of many things, anti-Semitism is not one of them.

ACMA, quite rightly, recorded No Breach against 2GB. But it took them almost a year to produce a report on a complaint that should have been dismissed by a resident ‘Ordinary, Reasonable’ person at ACMA within minutes of them first reading it. Try calling the Police and tell them someone stole your TV, they’ll tell you to suck it up and get over it because they don’t have the resources to investigate crimes that petty.

In my opinion, the Ordinary, Reasonable Test is an oxymoron. The people who complain about Alan Jones are rarely Ordinary listeners – at least not to his show. Nor can those who complain about Kyle Sandilands be classed as Ordinary 2Day listeners. Surely when applied to listeners, the term Ordinary, including some synonyms such as normal, usual, regular, familiar, average, routine and everyday, rely on them being in the majority.

So, when Jones or Sandilands makes repeated comments that the so-called Ordinary listener finds repulsive or objectionable then it would follow that thousands of them would complain and hundreds of thousands would stop listening. But they don’t.

Despite being far and away ACMA’s most prolific sources of complaint between them, Alan Jones owns the over 40s breakfast audience in Sydney, while Kyle Sandilands is number one under 40s. If two million or so each week are happy to continue listening to one or other of these “shock jocks” while a few complain, who, then, is the Ordinary listener? Surely not the complainants.

It stands to reason that Ordinary, Reasonable people in the over 40 age bracket who listen to the likes of Alan Jones are more likely to be outraged by the antics of Kyle Sandilands than the under 40’s, who in turn, would find the ultra-conservative views of Jones objectionable.

All that is happening is that we’re pitting one tribe of Ordinary, Reasonable people against another to figure out which side is the more Ordinary and Reasonable.

I’m not suggesting that there should be no regulator to set a standard for decency and anti-vilification. There should. But for it to work, in my view, a number of things need to happen.

1. Clearer guidelines have to be set that are less ambiguous and open interpretation than the current Ordinary, Reasonable Listener Test.

2. As complainants are perhaps the least likely to be Ordinary, Reasonable Listeners, the regulator should not have to wait for a formal complaint, it should be able to investigate any potential breach they become aware of, whether through their own monitoring or via media reports.

3. Conversely, they should be able to dismiss obviously unreasonable or frivolous claims without going through an exhaustive process.

4. It should also dismiss complaints from people who didn’t actually hear the broadcast they’re complaining about but have become infuriated by a second hand report in other media.

5. Announcers should be made more accountable for their own actions. Slapping a five year licence condition on a station affecting all on air staff for the actions of one is draconian. You watch how much more quickly that one announcer cleans up his or her act if there’s a chance of them having to pay a hefty fine that comes out of their own pocket rather than the station’s.

6. Finally, the regulator needs to ensure that it has the most informed understanding possible of what constitutes community standards in today’s society. In order to do that it needs to have large panel of people representing a wide range of socio-economic groups, education levels and all age groups. As importantly, it needs to canvass the views of the people who actually listen to the station being complained about. And these need be given more weight than non-listener views.

That’s my opinion. I Welcome yours.

Peter Saxon