The Australian Communications and Media Authority notes the following matters, having regard to recent public speculation about these events and the ACMA’s regulatory role.
The ACMA’s primary roles in broadcasting regulation are content and audience-focussed. For that reason its main potential interest in these events will be in material that is actually broadcast.
All commercial television broadcasting licensees must comply with Commercial Television Industry Code of Practice 2015 (the Code). The Code includes obligations as to accuracy and fairness (clause 3.3) and privacy (clause 3.5) in current affairs programs
The Code provisions do not generally regulate the way in which a current affairs program is prepared unless, as is possible in some limited circumstances, the preparation of material informs compliance of what has been broadcast.
The ACMA is, ultimately, responsible for enforcing the Code.
If and when Channel Nine broadcasts a program about these events, the ACMA will be able to consider any viewer complaints about Chanel Nine’s compliance with the Code or move to investigate Code compliance of its own volition.
In the event that the ACMA identifies non-compliance with the Code, it can:
- agree to measures offered by the broadcasting licensee to improve Code compliance in the future (such as changes to procedures and staff education)
- accept an undertaking, enforceable in the Federal Court, from the broadcasting licensee to take specified steps - again for the purpose of securing future compliance with the Code
- impose an additional licence condition.
It cannot fine or prosecute a licensee in relation to a Code breach or direct the licensee to take any particular action.
In addition to its Code-related role, the ACMA enforces compliance with standard licence conditions—several of which have been the subject of media comment and speculation.
- Paragraph 7(1)(h) of Schedule 2 to the Broadcasting Services Act (BSA) provides that a licensee will not use its broadcasting service in the commission of an offence against another Act or a law of a State or Territory in Australia. This licence condition contemplates a direct connection between the use of the broadcasting service and the relevant offence. So, where a licensee commits an offence that does not involve the ‘use’ of its broadcasting service the condition will not be breached. The licence condition concerns offences against Australian law only.
- Paragraph 7(2)(b) of Schedule 2 to the BSA provides a separate licence condition requiring a licensee to remain suitable. A licensee remains suitable unless the ACMA is satisfied that allowing the licensee to continue to provide a broadcasting service would lead to a significant risk of a breach of its licence conditions, an offence against the BSA or the breach of a civil penalty provision under the BSA. Subsection 41(3) of the BSA specifies that in deciding whether such a risk exists, the ACMA is to have regard to: the business record of the licensee and its controllers; the record of the licensee and its controllers in situations requiring trust and candour; and whether the licensee or its controllers have been convicted of an offence against the BSA or ordered to pay a civil penalty under the BSA.
- There is no separate ‘fit and proper person’ test in the BSA.
The ACMA monitors the compliance of all licensees with these licence conditions on an ongoing basis.
Finally, the ACMA notes that its regulatory relationship is with broadcasting licensees rather than with individual journalists, content producers or corporate officers. Such individuals are, like all Australians, subject to civil and criminal laws in the usual way. They may also be subject to specific professional or ethical standards: for example, the Code of Ethics of the Australian Journalists’ Association Section of the Media, Entertainment & Arts Alliance.
More information about the ACMA’s role regulating television content can be found here.
13 May 2016