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‘Natural justice’ and ACMA: why the broadcast regulator takes so long to rule

John Laws has been smacked on the knuckles — 10 months late. So why does Australia’s broadcasting regulator take so long to rule? Crikey investigates the often painful process.

In March 2013, radio host John Laws asked a women who had been sexually abused when she was six whether it had been her fault.

The question landed the broadcaster in front of the Australian Communications and Media Authority, which found him not guilty of breaching the Commercial Radio Australia Codes of Practice and Guidelines (Laws’ comments and line of questioning were deemed “a clumsy attempt to show empathy and support”). It took 10 months to come to this conclusion — the ruling was only released in mid-January this year.

ACMA receives thousands of complaints every year, but only around 200 (10%) of those are best addressed through an investigation. The regulator has an internal KPI to process complaints within six months, and Jennifer McNeill, general manager of content, customer and citizen at ACMA, told Crikey that more than 90% of ACMA’s investigations were completed within this time. The average investigation in 2012-13 was completed in 3.1 months, which is two weeks or so quicker than the average two years ago.

But the Laws case (and plenty of others) shows ACMA sometimes takes far longer. The Australian’s editor-in-chief Chris Mitchell — who says he’ll refer Media Watch “straight to ACMA” for supposedly breaching the ABC’s broadcasting rules — could be waiting some time for recompense.

Here’s what happens when someone objects to a broadcast.

Firstly, they must complain within 30 days to the offending media proprietor, stating what section of the relevant broadcast standards code they believe has been breached (there are separate codes for commercial television, commercial radio, community broadcasting, subscription television and the ABC). The broadcaster then has 60 days to reply. This means it could be three months before the complaint even goes to ACMA. The Oz’s complaint has already been responded to by the ABC, so News Corp’s lawyers sent it off to ACMA today.

That means ACMA can begin its investigation. After receiving a complaint, ACMA asks the broadcaster for a copy of the broadcast in question and gives the broadcaster a chance to respond to the complaint and to offer any evidence in its defense. If ACMA at this stage believes a breach may have occurred, it conducts an investigation leading to an initial ruling — to which the broadcaster again has the opportunity to respond. There’s then a final decision, which whoever is adversely affected (usually the broadcaster, but sometimes staff in the broadcaster or the person who filed the complaint) is again allowed to respond. Taking all this into account, ACMA then makes a final decision on publication of the ruling — sometimes it’s published in part, sometimes in full, and sometimes not at all.

The system is slowed at all points by a concern for “natural justice” — that is, procedural fairness for all parties, including the right to appeal and respond to criticism.

This is open to abuse. If a media proprietor has an interest in delaying a ruling, it can take its time getting back to ACMA with a response, slowing the whole process down. If the time taken to give a response is unreasonable, ACMA can choose to move ahead without one. But there is no statutory limit on the amount of time ACMA can take investigating a complaint, ACMA chair Chris Chapman told a Senate estimates hearing yesterday.

Other factors can also hold up rulings. McNeill says that the more complex the issue raised, the longer it typically takes. “Where a broadcaster seeks to contest the ACMA’s findings in court the investigation may not be completed until all of the court process is complete, which may take many months, and perhaps even years,” she added.

Is this acceptable? University of Canberra Professor Matthew Ricketson — who helped write the Ray Finkelstein-led review into media regulation in 2012 —  told Crikey that even six months was a long time for a complaint to wind its way through. And he can think of complaints that have taken far longer than that.

The problem is that the media is a fast business. This is a slow outcome for a fast business. By the time you issue the ruling, nine out of 10 people have forgotten what the original issue was about in the first place,” he said.

The Finkelstein review considered the issue and concluded ACMA was “slow and cumbersome”. Its proposed New Media Council — a one-stop shop for complaints on media reporting — sought to speed up the ruling process and give the media watchdog the power to impose binding rulings. But the review’s recommendations were pilloried in the press for not giving all those concerned natural justice and the opportunity to appeal. Now, they are largely forgotten.

ACMA is caught at the other end of that, Ricketson said: “But what they’re trying to do is make sure everyone gets full natural justice.”

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    sebster
    Posted Friday, 28 February 2014 at 2:13 pm | Permalink

    Wow. What an hilariously absurd letter from Kelly Hazell Quill Lawyers. Quite the comedy routine, Justin Quill.

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