The ABA has completed t he report on its hearin g into 2UE Sydney, and ha s made xx findings and xx recommendations. The ot her invest ig ations that form part of the ABA's commercial radio inquiry, into 6PR Perth, SAD Adelaide and 3AW Melbourne, are continuing.
he ABA has fo und 2 E The ABA has notified 2UE of five times by not properly tion (an organisation repre Sydney breached both its intention to impose two identify ing political matter and senting the major Australian Tthe Broadcasting Serv conditions on 2UE's licence. breached the Commercial Ra banks). ices Act and the commercial In the report of the ABA dio Codes of Practi ce o n 90 On 6 Septembe r 1999, as radio codes of practice as a hearing into 2UE re leased on occasions. The code breaches part of the investigati on, the result of broadcasts by Mr 7 February, th e ABA has comprised 60 breaches of ABA anno unced it would con Alan Jones and Mr.J o hn Laws. foo u nd 2UE breached the Act Code 2 - News and Curre nt duct a hearing into: Affairs and 30 breaches of • the nature and operation of Code 3 - Adve rti sing. Mr Jones' and Mr Laws' agree The othe r in vesti gations that ments; form part of the ABA's com • whether these contracts had mercial radio inquiry, into 6PR had any effect on the conte nt Perth, SAD Adelaid e and 3A W of programs; and Melbourne, are continuing. • whethe r this involved any breaches by 2UE of the condi Background to the tions of its li cence unde r the investigation Broadcasting Services Act, or o f the Commercial Rad io On 15 July 1999, the ABA Codes of Practice. announced that it would in- For the purposes of a hear vestigate a llegati ons that com- ing, the ABA is constituted by mercia l radi o service 2UE a pane l. The panel for this Sydney broadcast comments hearing initiall y comprised ofan editorial nature for which Professor David Flint, ABA a fee or other valu able con- Chairman and Mr Michael side rati on was received by Gordon-Smith. On 8 Novem the licensee or its presenters. ber1999, the panel was recon Terms of reference for the s titu te d fo ll owing th e investigati on were released on Chairman's inability to con- 6 August 1999. tinue w ith the hearing. The The ABA's action fo ll owed pane l the n comprised Mr w ide public di squi et over a l- Gordon-Smith as presiding legations, aired in the ABC TV member, Ms Kerri e Henderson program ·Medi a Watch' on 12 and Mr Ian Robertson. Ju ly 1999, concerning a n The hearing commenced on agreement between 2UE pre- 19 October 1999 and con Michael Go rdon-S mith (I) and Kerrie Henderson, handing senter Mr Jo hn Laws and the eluded on 3 December 1999. down the ABA report on the 2U E heari ng, on 7 February. Australi an Bankers Associa- The fu ll terms of re fere nce for C>
MARCH 2000 3 ABA~Upda te
STATEMENT BY MR GARETH GRAINGER ABA DEPUTY CHAIRMAN
Mr Grainger chaired the affairs commentary cou ld be The ABA has accepted the ABA board meeting that affected by contractual panel's reasoning and decided to impose commit ments that bi nd t he recommendations that conditions on 2UE's licensee or t he presenter, the conditions be placed on 2UE's public should be in formed of licence that are intended to licence after receiving the such arrangements,. ensure that listeners will be report and adopting the made aware by whom or for recommendations of the This is the public interest issue whom they are being persuaded panel that conducted the that lies at the hear t of the hearing into 2UE . commercial radio inquiry, the The ABA has today forwarded first phase of which has been the terms of the conditions to complet ed today with the the Commonwealth Gazette for The airwaves are public property adoption by the ABlA of t he publication . It has informed 2UE and the public is entitled to subpoenas have been issued to recommendations (of t he three of its intention to impose the expect a certain standard from witnesses in the 6PR and SA D person panel hearing evidence in conditions and has given 2U E those w ho are licensed to use matters. Private exam in at ions of relation to 2UE and its on air thirty days in which to provide them. When a radio station is a the 6PR and SAD witnesses presenters. any comment. The ABA popular and influential source of commenced last week. The ABA proposes the conditions come news and commentary, then the hopes to re lease reports on al l As the body charged with into effect on Monday 3 April three investigat ions before the public is entitled to expect a reg ul ation of t he commercial 2000. middle of the year. commensurately higher standard radio industry, the ABA must of conduct. make every effort to address As for the other three At the conclusion of those three these significant public interest investigations proceeding under investigations, t he ABA wi ll The Austral ian public has an issues of openn ess and the banner of the commercial interest in ensuring t hat rad io co nsid er if any action is transparency in re lation to the radio inquiry, into 6PR Perth, services that include news and necessary in respect of each of provision of current affairs in the SAD Adelaide and 3AW current affairs programs provide the three licensees . Depen di ng form of talkback and Melbourne, documents have fa ir and accurate coverage. And on the fi nd ings, the ABA may commentary. been rece ived in re lation to all id er w het he r indust ry w hen information or curre nt also cons three investigations an d wide remedies are warranted.
Background to the investigation
- continued.Jrom, p.1
fa i m ess in news a ncl current Aclvertis ments broadcast by a licensee m ust: Cost of the hearing the investigatio n and the affairs p rograms' . hea ring and fu ll transc ripts o f Clause 2.2(cl) o f the Cod (a) not he p resented as news programs o r other T he ABA's costs in relatio n to the hea ring are ava ilable o n p rovides: programs. the hea ring were approxi the ABA's web site. In the preparat io and mately o ne mill io n dollars. p resentation of c1urrent affa irs U nder sub-sectio n 42 (2) (to programs, a licensee m ust This sum includes legal costs, The Commercial Radio gether w ith Clause 4 o f Sc hed ensu re that: including Counse l and A us Codes of Practice and the u le 2) of the Act, it is a tralian Government So licito r, Broadcasting Services Act (cl) viewr oints ar·e no t conditio n o f all commercial misrepresente d, and costs associated w ith the elec Neither the Commercial Ra radio lice nces that: m aterial is noi t r resented tronic m anagement system , dio Codes o f Practice nor the If a broadcaster broadca sts in a m isleading manner by po litica l matter at the req uest transc ripts and inq uiry room conditio ns imposed o n licen giving wrong o r improrer o f another person . the plus ABA mem bers and staff sees under the Act specifica lly emphas is. by editing out broadca ster m ust. immediately costs. It d oes not incl ucl e costs acid resses comme rcia I a r o f context. o r hy afterv,·ards, ca use the requ ired incurred b y th e parties to the rangements entered into by w ithhold ing r·elevant pa rticulars in relation to the hea ring. T he ABA's appropria prese nters. available fact. , . matter to he announced in a tio n from Parliament for 1999- T he stated purpose o f Code Clause 3. l(a) o f the Code form approved in w ri ting by 2000 is just under $16 mill ion . 2 is 'to p ro mote accuracy and provides: the A l ~A.
4 STATEMENT BY MR MICHAEL GORDON SMITH PRESID ING M EM BER OF TH E PA N EL THAT CON DUCTED THE HEA RING INTO 2UE
The Australian Broadcasting Authority operates under the Broadcasting Service Act 1992. Under t he Act the Authority has the power t o conduct hearings. On 6 September last year, the Authority announced it would hold a hearing in relation to agreements entered into by presenters on Radio 2UE Sydney. The hearing is a part of the w ider inquiry by the Authority into the conduct of a number of talkback radio stations in Australia. The hearing sat for a total of 19 days from October to December last year, and heard evidence from 2 1 witnesses. It was the first hearing of its type held by the Authority since it w as establi shed in 1992. Th e report the Authority is publishing today contains the panel's f indings and recommendations aris ing from the hearing. One of the main issues in the hearing was whether 2UE had complied with a condition of its licence concerning political matter and whether it had complied with the Commercial Radio Codes of The hearing panel: (1-r) Ian Robertson, Michael Gordon Practice as they concern accuracy and fairness in news and current Smith, Kerrie Henderson affairs programs, and the prese ntation of advertisements. This condition would require 2UE to maintain a register of all Political Matter agreements under which a presenter or producer receives valuable Under the Act, it is a condition of holding a commercial consideration, and to notify the ABA of any changes to the regi ster. It broadcasting licence that: would also require prese nters to make an on-air announcement disclosing their commercial agreement with a sponsor on each If a broadcaster broadcasts political matter at the request of occasion where: another person, the broadcaster must, immediately afterwards broadcast requi re d particu lars, including the name of the person • material is broadcast pursuant to an agreement; who authorised the broadcast. • the name or products or services of a sponsor are mentioned; The panel has found fi ve breaches of this condition by 2UE . • an agent, employee or officer of a sponsor is interviewed; or • a presenter expresses an opinion on an issue which directly affects News and Current Affairs Programs the business of a sponsor, or in w hich a sponsor has a direct financial Code 2 of the Commercial Radio Codes of Practice concerns interest accuracy and fairness in news and current affairs programs and The second proposed condition is a condition requiring that requires broadcasters to ensure that re levant avai lable facts are not ad ve rtisements must be clearly distinguishable from other program withheld. matter. The panel has found 60 breaches of t his code by 2UE. In preparing its findings and recommendations the panel has had to consider careful ly two of the major submissions made by Mr Laws and Advertising Mr Jones to the hearing. Clause 3 of the Commercial Ra dio Codes of Practice requires On the issue of w hether his commercial agreements shou ld be broadcasters to ensure that advertisements are not presented as disclosed, Mr Laws subm itted that his arrangements had already been news programs or other programs. adequately disclosed, and that his contractual arrangements were The panel has found 30 breaches of this code by 2UE. w ell known to the public and to his listening audience in particular. C>
The conduct of Mr Alan Jones and Mr John Laws in giving effect to agreements they had made with a range of commercial entities has led to a substantial fai lure by 2UE to comply with the Commercial Radio Codes of Practice and one of t he conditions of its li cence.
The panel has concluded t hat 2UE 's management systems were not adequate to prevent breaches of t he Codes, or the conditions of its licence. The panel has therefore recommended t hat the Australian Broadcasting Authority consider imposing two new conditions on 2UE's licence. The first recommended condition is a condition requiring disc losure of commercial agreements entered into by presenters or program producers, and a compliance program. The assembled media
MARCH 2000 5 ABA~Update
The Australian Broadcasting Authority has accepted the panel's recommendation and has given notice that it proposes to impose two new conditions on 2UE's licence. Those proposed conditions will be gazetted shortly.
The panel is conscious that the hearing has been time consuming and expensive for all involved. However we believe the issues addressed by the hearing to be of importance to Australian broadcasting and to the fair coverage of matters of public interest.
The panel hopes the conditions the Authority proposes to place on 2UE's licence will result in a system of public disclosure that allows those who listen to 2UE's programs to be well informed about any commercial arrangements that affect those programs.
Michael Gordon-Smith
Mr Jones submitted: •that he did not appreciate that his contracts contained provisions relating to on-air conduct; •that his contracts had not affected the content of his 1P rograms; and • that it was not obvious that a commercial arrangement between a presenter and a person mentioned on-air is a 'relevant available fact' within the meaning of the code whenever the presente1r mentions that person on-air.
The panel has not accepted the submissions of Mr Laws. or Mr Jones on these issues. The panel considers it an essential element of fairness in the presentation of programs that in the absence of any explicit disclosure, a listener can assume there to be no comme1rcial arrangement between presenters and persons referred to in those programs. Donald Robertson, ABA Manager Media & PR, hands out We endorse the view put by the Chairman of Radio 2UE Sydney, Mr copies of the report Conde in his memo to 2UE staff of 27 July 1998 that su·ch agreements can give rise to suggestions that an announcer is oblige1d to a third party and to perceptions that the content of broadcasts may be dictated by the commercial imperatives of third parties. As the Communications Law Centre's submission noted, this h1as implications The report, Commercial Radio Inquiry: for the credibi lity of al l views expressed on radio. Report of the Australian Broadcasting In the panel's view, a commercial arrangement between a presenter Authority Hearing into 2UE Sydney, is and a person whose commercial interests are directly affected by the on the ABA web site, broadcast is a fact of sufficient relevance to render misleading any
3. 2 Subject to Clause 3.4, the Lice nsee must broadcast a First Condition: Disclosure Anno uncement at the time of and as part o f the broadcas t o f any material:
Disclosure and Compliance (a) broadcast pursuant to a Commercial Agreement; 1. Definitions (b) in w hich the nam e, o r products or se rvices, of a Spo nsor are mentio ned; In this condition: (c) in w h ich an agent, employee o r officer o f a Sponsor is ABA m ea ns the A ustralian B roadcasting A utho rity. interv iewed ; o r Act m ea ns the Broadcasting Services Act 1992 ( cl) in which a Presenter expresses an opinio n or m akes a Associate of a Presenter or a Producer mea ns any person comment o n an iss ue: (including, w itho ut limitatio n , a corpo ratio n o r a trustee of a ( i) which directly affects the business o f a Sponsor; o r trust) which has , o r purpo rts to have, the right to provide the se rv ices of the Presenter o r Producer to an y person . (ii) in which a Sponsor h as a direct financial interes t. 3.3 If a D isclosure Announcement is made in relatio n to a Majo r Code means a code o f practice for commercial radio Commercial Agreement, then the anno uncement must sta te that broadcasting licensees. the agreement is a majo r commercial agreement. Commercial Agreement mea ns an agreement, arrangement o r 3.4 A Disclosure A nno uncement need no t be broadcast if the understanding, whether committed to w riting o r no t, w hich material broadcast is: imposes obligatio ns on a Presenter o r a Produce r and pursuant to which the Presenter o r Producer o r an Associate o f the (a) p art o f a news bulletin; o r Presenter o r Pro ducer receives any benefit o r valuable (b) an advertisement broadcast pursuant to an agreement consideration o ther than payment fro m the Licensee (other than between the Licensee and the advertise r provided that the an agreement, arrangement o r understand ing between the advertise ment is not presented in a manner w hereby a Presenter o r Pro duce r and an Associate of the Presenter o r reasonable listener would be entitled to assume that the Producer). advertise ment is: Disclosure Announcement mea ns an anno uncem ent referred ( i) th e repo rting of news; o r to in Clause 3. 1. (ii) the express io n of opinion o r ed ito rial comment by the Licensee means Rad io 2UE Sydney Pty Ltd o r an y transferee of Presenter o r the Licensee. the commercial rad io broadcasting licence held by Radio 2UE Sydney Pty Ltd. 4. Register of Commercial Agreements Major Commercial Agreement m ea ns any Commercial Agreement w here the va lue o f th e consideratio n p ayable 4.1 The Licensee must keep a Register of Commercial pursuant to the agreement is greater than $100,000 per annum. Agreements recording the following particulars of each Presenter mea ns the o n-air presenter or compere of a program Commercial Agreement: broadcast by the Licensee. (a) the date o f the Commercial Agreement; Producer means a person res po nsible for the p roductio n o f a (b) the p arties to the Commercial Agreement; program broadcast by the Licensee. (c) the durati o n o f the Commercial Agreement; Register mea ns the Register of Commercial Agreements referred (cl) a brief descriptio n o f the obliga ti o ns of the Presenter o r to in Clause 4. 1. Producer under th e Commercial Agreement; Sponsor m ea ns: (e) the identity o f each person providing consideratio n under the (a) a party to a Commercial Agreement (other than a Presenter o r Commercial Agreement; and Produce r o r an Associate o f a Presenter o r a Producer); Cf) subject to Clause 4.2 , the amo unt or va lue o f the (b) if the party to a Commercial Agreement is a corpo ration , a consideratio n to be provided under the Agreement. related body corpo rate of the party for the purposes of the 4.2 The Register need o nly record the amo unt o r va lue of Corporations Act 1990; o r the consideratio n to be prov ided under a Commercial Agreement (c) if the party to a Commercial Agree ment is a represe ntative as: body, th e o rga nisatio n that it represents. (a) $10,000 o r less per annum; (b) mo re than $10,000 but not mo re than $100,000 per annum; 2. Commencement (c) more than $100,000 but not mo re than $500,000 per annum; or This conditio n commences o n 3 April 2000. (cl ) SS00,000 o r more per annum. 4.3 The Lice nsee must keep th e Register at the sta tio n p remises 3. On-Air Disclosures and must make it ava ilable for inspection free o f charge upo n request by any member of the public during business ho urs. 3.1 A Disclosure A nno uncem ent is a broadcast by a Prese nter 4.4 The Licensee must publish the Register o n an y website [> that a releva nt Commercial Agreem ent exists. o perated by o r o n behalf of the Licensee and must link the Register d irectly to the ho me page of that web site. MARCH 2000 7 ABA~Update
5. Notifications to the ABA Second Condition
5.1 The Licensee must provide to the ABA in w-riting the Paid Advertisements Distinguishable From Other p articulars set o ut in cl ause 4. 1 in relatio n to each Commercial Program Matter Agreement provided to the Licensee by each Prese11ter o r Producer within fourteen (14) cl ays after the Licensee is no tified 1. Definitions o f those p articulars by the Presenter or Produce r. In this conditio n: 6. Presenters and Producers Advertisement m ea ns (a) material broadcast a substantial purpose o f which is to draw 6.1 The Licensee must ensure that each Presen er and p ublic attentio n to , or to pro m o te, an organisa tio n , product Produce r: or se rvice; and (a) provide to the Licensee within 7 cl ays o f any Co1mmercial (b) Consideratio n has been provided b y or o n behalf o f that Agreement being entered into: o rga nisa ti o n or a supplier of that product o r se rv ice to the ( i) a copy o f each Commercial A greem ent to w h1ich the Lice nsee, or to a Presenter o r Producer o r an A ssociate o f a Presenter o r Producer o r an Associate o f a Pre senter o r Prese nter or Producer in relatio n to the broadcasting of that Producer is a party ; o r material.
( ii) if the Commercial A greem ent is no t in writin ~, the Associate of a Presenter o r a Produce r mea ns any person p articulars set o ut in clause 4.1 o f each Comn-:ie rcial includ ing witho ut limitati o n, a corporatio n o r a trustee o f a trust) Agreement. w hich has , or purpo rts to have, the right to provide the se rv ices of the Prese nter o r Producer to any person. (b) complies w ith the o b ligatio ns imposed o n t: he Lice nse e b y the Act, each Code and this conditio n . Con side ratio n mea ns any va luable consideratio n but does no t 6.2 The Licensee must nor engage the serv ices co f an y incl ude considerati o n which consists o f the provisio n, at no Presenter o r Pro ducer unless it is a conditio n o f thatt engagem ent charge, o f a pro duct o r se rvice solely for review. that the Presenter o r Producer complies w ith subclaiuses (a) and Licensee m ean s Radio 2UE Sydney Pry Ltd o r any transferee o f (b) o f Clause 6. 1. the commercial radio broadcasting licence held by Radio 2UE 7. Compliance Program Syd n y Pty Ltd. Presenter mea ns the on-air presenter o r compere o f a program 7.1 The Li censee must ensure that at least twice in the first broadcast by the Licensee. yea r o f this conditio n and at least once every yea r tl erea fter all Producer mea ns a person res po nsible for the productio n o f a staff o f the Lice nsee involved in the productio n o r p)resentatio n program broadcast b y the Licensee . o f materia l broadcast by the Licensee and all Presernters and Produce rs undertake a training program co n ce rn i n ~ the o bligatio ns imposed on the Licensee by the A ct, each Code and 2. Commencement this condition. This condition commences o n 3 April 2000. 7 2 The Licensee must ensure that each trainin i:-S program referred to in Clause 7.1 is conducted by a firm o f lat 'v\ryers w ith 3. Distinguishing Advertisements exp ertise in broadcasting law o r compliance progra1ms and that the firm , provides to the ABA at the conclusio n o f e:ach training Advertise m ents broadcas t by the Licensee must be presented in program , a written repo rt se tting o ut detai ls o f: such a m anner that the reasonab le listener is able to disting uish (a) the training conducted ; and them fro m other program material. (b) the staff o f the Licensee, the Presenters and the !Produce rs w ho undertook the training program. 4. Duration of Condition
8. Duration of Condition This condition w ill cease Lo o p erate on 2 April 2003.
8. 1 This conditio n w ill cease to o perate o n 2 April 2003. ~I
8