Australian Broadcasting Corporation Submission
Proposed Reforms to the
Broadcasting Regulatory Powers of the
Australian Communications and Media Authority
(Department of Communications, Information and the Arts)
December 2005
ABC Comments on the Issues Paper on Proposed Reforms to the Broadcasting Regulatory Powers of the ACMA
The Australian Broadcasting Corporation (ABC) welcomes the opportunity to comment on the Department’s Issues Paper Proposed Reforms to the Broadcasting Regulatory Powers of the Australian Communications and Media Authority.
The majority of the proposed changes to the enforcement powers of the Australian Communications and Media Authority (ACMA) do not apply to the ABC as a public broadcaster. The Corporation will thus restrict its comments to the one section of the Issues Paper that does affect the ABC, namely section 4, which deals with a proposal to give the ACMA power to require the broadcast of on-air statements of investigation findings.
The ABC believes that this proposed power should not apply to national broadcasters, as it is unnecessary and potentially in conflict with the Australian Broadcasting Corporation Act 1983 (“ABC Act”).
The ABC is already subject to a regime under which the ACMA is able to recommend actions—
including on-air announcements—as a result of its investigations. In addition, matters investigated by the ACMA will usually have already been subject to the Corporation’s multi- tiered complaints process, which includes an Independent Complaints Review Panel (ICRP).
The Corporation notes that the matters considered in the Issues Paper substantially reflect the recommendations of the report Reform of the Broadcasting Regulator’s Enforcement Powers, which was prepared for the former Australian Broadcasting Authority (ABA) in the wake of the “Cash for Comment” inquiry by Professor Ian Ramsay of Melbourne University. However, in relation to the power to order the broadcast of on-air statements, the Issues Paper does not completely adopt Professor Ramsay’s recommendations, as it omits his recommendation that the power not apply to the national broadcasters.1 The ABC agrees with the professor’s reasoning in relation to this question and strongly encourages the Government to adopt his recommendation fully.
The ABC has previously made a submission to the Department on this issue when it was raised in the 2001 Discussion Paper Final Report of the Australian Broadcasting Authority’s Commercial Radio Inquiry: Proposed Options for Legislative Reform and Related Issues. Then, as now, the ABC argued against providing the regulator with the power to require the broadcast of on-air statements of ACMA findings.
1 Ian Ramsay. Reform of the Australian Broadcasting Authority’s Enforcement Powers: Report to the Australian Broadcasting Authority. September 2004. Sydney: ACMA, p.123.
The ABC Act, under which the Corporation is constituted, contains a number of provisions that ensure its editorial independence. Among their duties, the ABC Board are required “to maintain the independence and integrity of the Corporation”.2 Further, the capacity of the Government of the day to direct the output of the ABC is explicitly limited under section 78, which sets out the specific circumstances under which the Minister may direct the Corporation in the national interest to broadcast particular matters, and which states at subsection 78(6) that “[e]xcept as provided by this section, or as expressly provided by a provision of another Act, the
Corporation is not subject to direction by or on behalf of the Government of the Commonwealth”.
The ABC’s independence carries with it substantial responsibilities in terms of transparency and public accountability. In particular, the Corporation is answerable to the Parliament and thus the people of Australia through a variety of mechanisms, including detailed Annual Reports, Senate Estimates hearings and external review by the Australian National Audit Office.
In addition, the ABC has an effective, multi-tiered complaints-handling process to deal with concerns expressed by members of the public about its programming, and publishes the results of those contacts on a quarterly basis. The complaints-handling process includes the possibility of scrutiny by the ICRP and has a range of remedies at its disposal, including on-air corrections.
The Broadcasting Services Act 1992 (“BSA”), which provides the basis for the ACMA’s role as broadcasting regulator, includes a specific category of “national broadcasters” that applies to the ABC and SBS in recognition of their enabling legislation, editorial independence and
accountability to the Parliament.
The way in which national broadcasters’ codes of practice are handled under the BSA is indicative of this difference. The ABC Board is required to furnish the ACMA with an ABC Code of Practice,3 and the ACMA is required to investigate reported breaches of that Code.4 If the ACMA finds that the ABC has breached its Code, the Authority is entitled to recommend a course of action to remedy the breach, including the broadcast of on-air statements.5 Consistent with the ABC’s editorial independence, however, the ACMA has no power to compel the Corporation to take the recommended course of action. Instead, if the ABC does not do so, the
2 Australian Broadcasting Corporation Act 1983, s. 8(1)(b).
3 Australian Broadcasting Corporation Act 1983, s.8(1)(e).
4 Broadcasting Services Act 1992, s.151.
5 Broadcasting Services Act 1992, s.152.
ACMA may inform the Minister, who is in turn obliged to report the matter to the Parliament—
the body to which the ABC is accountable.6
The ABC believes that the current system works well. It simultaneously provides for ACMA investigations of alleged breaches of the ABC’s Code of Practice, while reflecting the
Corporation’s editorial independence and accountability to the Parliament.
In practice, the ABC has invariably accepted the regulator’s recommendations. Indeed, it is frequently the case that, as a result of the ABC’s existing, multi-tiered complaints-handling process and Editorial Policies in relation to corrections of inaccurate information, that the recommended action has already been taken.
In light of the effective operation of the existing system set out in the BSA and potential conflict with the ABC Act, the ABC strongly believes that any proposed additional power to require the broadcast of on-air statements of investigation findings granted to the ACMA should not apply to national broadcasters.
6 Broadcasting Services Act 1992, s.153.
