The Australian Communications and Media Authority notes yesterday’s decisions in the Federal Court regarding the ACMA’s power to investigate certain broadcasts by Harbour Radio Pty Ltd, the licensee for 2GB.
Justice Buchanan confirmed that the ACMA has an independent discretion to commence investigations under section 170 of the Broadcasting Services Act 1992 (the BSA).
His Honour also found that the ACMA has a discretion to investigate matters raised by corporate entities, while noting that complaints under the Commercial Radio Codes of Practice 2013 are confined by the terms of the BSA and the Codes to being made by individuals.
In another aspect of the judgment, His Honour found that when considering whether a purported correction was “adequate and appropriate in all the circumstances” it is open to the ACMA to pay regard to the whole of the immediate context in which the purported correction is offered.
ACMA Chairman, Chris Chapman, said that the decision provides a welcome clarification of important aspects of the ACMA’s powers. ‘The Court’s decision confirms that the ACMA has a broad power to investigate licensees’ compliance with broadcasting rules. The decision also allows for the result that technical deficiencies in the way complaints are made will not necessarily prevent the ACMA from assessing licensees’ compliance with important rules, including rules about accuracy, where it is in the public interest to do so.’
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Media release 22/2015 - 24 April
Harbour Radio Pty Ltd, the licensee of 2GB, commenced two sets of proceedings in the Federal Court challenging decisions made by the ACMA.
The first case (NSD 1086/2014) concerned the ACMA’s investigation of statements made by Mr Alan Jones AO, broadcast by 2GB on 24 September 2013, concerning a report of the Intergovernmental Panel on Climate Change (the IPCC).
The ACMA found the licensee to have breached Code 2.2(a) of the Commercial Radio Codes of Practice 2013, on the basis that the licensee did not use reasonable efforts to ensure that factual material was reasonably supportable as being accurate. The ACMA also found that a purported correction by Mr Jones was not adequate and appropriate in all the circumstances and so did not absolve that breach. The ACMA also found that the licensee did not breach the ‘complaint handling’ requirements in Codes 5.5 and 5.6.
The second case (NSD1104/2014) relates to the ACMA’s as yet incomplete investigation into a series of statements made by Mr Jones regarding Wagners Investments Pty Ltd in the period from 12 November 2013 to 13 December 2013. The ACMA will not be making further comment on that investigation until such time as it is completed.
The Court’s decision primarily relates to the ACMA’s power to commence ‘own motion’ investigations under section 170 of the Broadcasting Services Act 1992 (the BSA).
At the time relevant to these proceedings, the ACMA was under a duty to investigate any complaints made to it in accordance with sections 147 and 148 of the BSA. To trigger the ACMA’s duty to investigate a complaint, the complainant must have first complained to the licensee in accordance with the relevant code of practice, and either received no response, or an inadequate response, from the licensee.
Section 170 is a general discretion to investigate matters that are relevant to the ACMA’s functions and powers, including, as found in these proceedings, matters arising from complaints made under sections 147 and 148 of the BSA.
The BSA has since been amended such that the ACMA now has a discretion as to whether it investigates complaints made to it under sections 147 and 148 of the BSA.