Who can I complain to about the Sandilands rape segment?

Not the regulator, yet. We have a “co-regulatory” broadcasting regime. Under the Broadcasting Services Act, you’ll have to complain about the segment to the licensee, 2Day FM, first. If they don’t reply within 60 days, or you don’t like their reply if you get it before then — and one suspects you won’t — THEN you can complain to ACMA.

Alternatively you can ask Stephen Conroy to direct ACMA to investigate the matter immediately, which he has the power to do.

What can I complain about, specifically?

This is a program content matter, unless some clever lawyer can construct another offence out of interrogating a minor on-air. That means any breach will be of the radio industry’s code of practice, not things like licence conditions, which are more serious. And the presenters involved face no repercussions. Only the licensees are regulated under the Act, not the actual people involved.

What can ACMA do?

If it is satisfied the complaint is a serious one, ACMA can investigate. It can call witnesses, demand documents, conduct hearings, call for submissions, and punish those who don’t comply.

If it finds a breach, ACMA can’t do much, although more than it used to be able to. It has the option of imposing an industry standard rather than a code of practice if it decides the code is a total failure — very unlikely here — and breaches of the industry standard come with penalties. But that won’t capture this week’s behaviour, only future behaviour. It can also seek an enforceable undertaking from the licensee that it will do certain things or make sure it won’t recur — but again, that will only deal with future issues.

Why does ACMA take so long?

Before ACMA publishes the findings of its investigation, it must give people affected by the report a reasonable chance to comment, not longer than 30 days. A licensee can also conceivably string the investigation process out for months by not cooperating quickly, and using up all the time allowed by natural justice before it responds. And it can always litigate the outcome in the Administrative Appeals Tribunal anyway.

ACMA investigations typically take several months. In 2007-08 it concluded 78% of investigations within six months.

What could speed up the process?

The faster the process, the poorer it will be and the more danger there is that it could be used for censorship purposes. Remember we’re dealing here with government regulation of the media, so everything you do has potential free speech implications. But the current process is structured to encourage licensees to drag out investigations. They know politicians, and regulators who have to jump when politicians yell, are motivated by headlines, and headlines will always go away if you wait long enough.

Restructuring the process to encourage rapid cooperation with investigations might speed things up. What if licensees had to take the relevant presenters off-air until the investigation was completed? That would encourage them to move like lightning to provide tapes, give their side of the story and respond rapidly to draft reports. This could be done via enforceable undertakings or a change to the industry code of practice right now: licensees could undertake that, if ACMA was satisfied the complaint was worth investigating, the likes of Sandilands and Jackie O would be off-air until ACMA published its report. Never happen though.

So what should I do?

Switch off, if you’re stupid enough to listen in the first place. Tell companies that advertise on the show you’re boycotting their products. Complain in the language that will always get the attention of broadcasters: money.

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Peter Fray

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