Federal Court confirms ACMA’s investigative powers

The Federal Court confirmed the ACMA’s power to investigate two broadcasts by 2GB’s Alan Jones.

The decision entrenches the regulator’s right to go beyond investigations relating only the Broadcasting Act or Codes of Practice.

Austereo argued that the ACMA was exceeding its power in the 2DAY FM prank call case, but was ultimately unsuccessful in court. This latest decision is another win for the regulator in this area of law.

Justice Buchanan confirmed that the ACMA has “an independent discretion to commence investigations” under section 170 of the Broadcasting Services Act 1992.

Buchanan 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, Buchanan 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 says 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.”

The two matters in question are related to ACMA investigations and a 2GB challenge to the regulator’s right to investigate. The judge’s ruling means that 2GB cannot challenge the rulings on this point of law.

The first case (NSD 1086/2014) concerned the ACMA’s investigation of statements made by Alan Jones on 24 September 2013, concerning a report of the Intergovernmental Panel on Climate Change (the IPCC).

The ACMA found the licensee breached 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 Alan Jones was not adequate and appropriate in all the circumstances, and so did not absolve that breach. 

The second case (NSD1104/2014) relates to an investigation into a series of statements made by Jones regarding Wagners Investments Pty Ltd in the period from 12 November 2013 to 13 December 2013. The investigation is not yet complete so the ACMA will not be making further comment on that investigation at this time.

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.

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

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