John Laws says he is not surprised the ABA will not proceed with any prosecution of 2UE for standards’ breaches.
The Authority had received advice from the Commonwealth Director of Public Prosecutions (DPP) that, on the evidence available, there would be no reasonable prospect of a conviction.
The DPP says the matter will not be approved for prosecution in relation to breaches of the commercial radio disclosure standard because the burden of proof in criminal cases is much higher than in civil cases.
“For a successful prosecution in this case, it would have to be proven that Radio 2UE engaged in the conduct with the requisite criminal intention,” says Acting ABA chief, Lyn Maddock.
Laws says: “I just think it got out of control. It certainly felt like there was a vendetta going on and I think they were trying to embarrass me as much as they could.”
Southern Cross General Manager, Graham Mott, has told radioinfo that he is, “Pleased with the decision, but not pleased with having all this negative publicity hanging over 2UE since December last year”.
“We were always confident of winning the case because it all hinged on ‘intent’. Since it was obvious that over the period being monitored, Lawsie had disclosed thousands of times and failed to disclose properly on only a handful of occasions, it was clear that his ‘intention’ was to disclose”.
Maddock believes: “This outcome highlights how difficult it is for the ABA to impose appropriate sanctions when it finds breaches of licence conditions and program standards.
“The only civil law based remedies available to the ABA are imposition of further licence conditions (which must not be punitive), or suspension or cancellation of the broadcaster’s licence. The ABA has imposed a stringent monitoring condition on Radio 2UE, but would always be extremely reluctant to deprive the public of a popular service by suspending or cancelling the broadcaster’s licence.
“The present case demonstrates the forensic difficulty of mounting a criminal prosecution under the existing law. However, the ABA has not ruled out the option of seeking criminal prosecutions in the future.”
The ABA is working on a proposal to government to expand the range of civil law sanctions, which might be appropriate for dealing with these kinds of breaches. The ABA plans to provide the proposal to government within the next six months.
Communications Law Centre Director, Derek Wilding, is unhappy with the decision not to prosecute, saying it provides no incentive for media organisations to follow the ABA’s regulations.
“The ABA has been backed into a corner in a sense and it’s quite true it doesn’t have a sufficient range of remedies available.
“The only solution is amendments to the Broadcasting Services Act and that’s something that’s required by Parliament, not the ABA.”