The Press Council considered whether its Standards of Practice were breached by an article published in the Herald Sun headed “Top cop claims Director of Public Prosecutions knocked back police requests to prosecute racists”, 21 October 2023 online and “Police: DPP set racism high bar”, 22 October 2023 in print.
The article reported on a Press Conference by Victoria Deputy Police Commissioner Neil Paterson. The article reported that “Victoria’s Director of Public Prosecutions (DPP) has repeatedly knocked back police requests to prosecute racists for breaches of the state’s racial vilification laws, police have confirmed”. The article went on to report that “Deputy Commissioner Neil Paterson … defended the force from allegations police were not properly enforcing the Racial and Religious Tolerance Act.”
The article referred to Mr Paterson as saying that “racial vilification was a ‘complex offence’ to investigate and prosecute, and police regularly sent briefs of evidence to the DPP”. The article quoted Mr Paterson as saying “We’ve got many examples of us taking action and referring those matters to the Director of Public Prosecutions for a decision on whether there is sufficient evidence to prosecute”. The article also referred to Mr Paterson as saying that the “DPP had advised the ‘threshold’ for launching prosecutions was ‘high’”.
The article went on to report that the “cases the DPP has refused to prosecute include a rally at which members of the Nationalist Socialist Network performed Nazi salutes and made offensive statements”. The article said that “Mr Paterson’s defence of Victoria Police followed criticism from the Jewish community” that “the force had used the laws to prosecute anti-Muslim racists, but not similar attacks on the Jewish community”.
The complainant said that it was inaccurate and misleading to report that Victoria Police “regularly” provides racial and religious vilification briefs to the DPP for consideration and to also report that the DPP had advised Victoria Police that the threshold for prosecution is “high”. The complainant also said that it was inaccurate and misleading to report that Victoria Police “regularly sent briefs of evidence to the DPP” and omit to report Mr Paterson as saying that “there’s very few charges in any year where we consider a charge under the Racial and Religious Tolerance Act to put a matter before the Director of Public Prosecutions.”
The complainant said the result was an article which conveyed the unmistakable inference that there was a fundamental disagreement or difference of opinion between Victoria Police and the DPP regarding the prosecution of racial and religious vilification offences.
The complainant also said that it had not been given a reasonable opportunity to reply to the content of the article before publication because the publication had not contacted the DPP through its designated media email address or media staff. The complainant said that the publication had been in contact with several DPP media staff in relation to other enquiries and the personal phone numbers and email addresses were known to the publication.
In response, the publication said that its reporting was fair and accurate. The publication said that racial vilification is a rare and somewhat novel offence and in that context it was entirely reasonable to report that Victoria Police “regularly” sends briefs to the DPP in circumstances where the Deputy Commissioner had stated “we’ve got many examples of us taking action and referring those matters to the Director of Prosecutions”.
The publication said that in relation to the comments that the DPP had been advised that the “threshold” for launching prosecutions was “high”, is not intended to be a summary of the precise and obscure minutia of the test applied by the DPP. In support of this comment, the publication referred to the Deputy Commissioner’s statement that “The threshold is high under that legislation”.
In relation to contacting the DPP for comment, the publication said it made two unanswered calls to the DPP’s switchboard at approximately 5pm on Saturday, 21 October 2023. The publication also noted that the DPP did not have an out of hours contact number.
Conclusion
The Council’s Standards of Practice require publications to take reasonable steps to ensure that factual material in news material is accurate and not misleading (General Principle 1), and is presented with reasonable fairness and balance, (General Principle 3). If the material is significantly inaccurate or misleading, or unfair or unbalanced, publications must take reasonable steps to provide adequate remedial action or an opportunity for a response to be published if that is reasonably necessary to address a possible breach (General Principles 2 and 4).
In considering the complaint, the Council had regard to a video recording and transcript of the Press Conference against the content of the news article. The Council notes that Mr Paterson stated that the Racial and Religious Tolerance Act was complex legislation and that “the threshold is high under that legislation.” He also stated that the offence under the Act was “a complex offence that requires certain elements to be present before police will take action and put a Brief of Evidence together for consideration by the Director of Public Prosecutions.”
Accordingly, the Council considers that Mr Paterson was stating that it was the legislation that set a “high bar” on prosecution and not the DPP. In relation to this, he stated that whether or not an incident leads to a prosecution “rises and falls on the circumstances of any particular matter” and “on the evidence that’s available, the particular behaviour that’s been exhibited.” While the Council acknowledges that Mr Patterson did say that Victoria Police had “recently put Briefs of Evidence to the Director for a decision, and we’ve had that come back that there is insufficient evidence in other similar sorts of examples of this offence occurring” the Council is satisfied that he did not say that the DPP had advised that the threshold for launching prosecutions was "high” or that the DPP had “repeatedly knocked back requests” to prosecute matters.
The Council also notes that Mr Paterson stated that “there’s very few charges in any year where we consider a charge under the Racial and Religious Tolerance Act to put a matter before the Director of Public Prosecutions. It doesn’t happen very often because the circumstances that give rise to a charge doesn’t happen very often.” Accordingly, the Council considers it was misleading to report that Victoria Police “regularly sent briefs of evidence to the DPP”, without providing the broader context of Mr Paterson’s statement.
The Council notes that in the absence of Mr Paterson’s comments that there are “very few charges” that are put before the DPP, along with the headlines and the opening paragraph, the article misleadingly and unfairly suggest that there was a disagreement between Victoria Police and the DPP in relation to the prosecution of the Act. The Council is satisfied that on the material before it, that the comments by Mr Paterson concerned the complexity of the Act. Accordingly, the Council finds a breach of General Principle 1.
The Council notes the attempts the publication says it took to contact the complainant for comment. However, in the context of reporting on a matter of significant public interest, the Council is not satisfied that two calls to a switchboard late on Saturday afternoon constitutes reasonable steps. Accordingly, the Council finds a breach of General Principle 3.
As to corrective or remedial action, the Council considers the article is significantly misleading. The Council also notes that after the article was published, the complainant contacted the publication to raise its concerns with the article and seek a correction. The Council notes that on the information before it, the publication has not offered the complainant with an opportunity for a subsequent reply. Accordingly, the Council concludes that General Principles 2 and 4 were breached.
Relevant Council Standards
This Adjudication applies the following General Principles of the Council:
Publications must take reasonable steps to:
- Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion.
- Provide a correction or other adequate remedial action if published material is significantly inaccurate or misleading.
- Ensure that factual material is presented with reasonable fairness and balance, and that writers’ expressions of opinion are not based on significantly inaccurate factual material or omission of key facts.
- Ensure that where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach of General Principle 3.