The broadcasting industry regulator is not known for its punchy prose, but buried in its investigation report into the scandalous Kyle and Jackie O Show imbroglio, the Australian Communications and Media Authority basically tells Radio station 2Day FM not to take it for a fool.

Readers will recall the affair. In July this year Kyle and Jackie O broadcast a segment in which a 14-year-old girl was attached to a lie detector and quizzed about her sex life by her mother. She stated she had been raped at the age of 12.

Yesterday, ACMA released its report on the affair, and announced that it would seek to impose additional conditions on 2Day FM’s licence.

Any number of things could be said about this. There is the sheer horror of the transcript of the show, which still packs a punch even buried amid ACMA’s legalistic prose:

Mum: OK, have you had sex?

The girl: I’ve already told you the story of this. And don’t look at me and smile because it’s not funny. Oh, OK, um … I got raped when I was 12 years old.

Extended silence

Kyle Sandilands: Right, and is that, is that the only experience you’ve had?

Mum: I only found out about that a couple of months ago; yes I knew about that.

The girl: And yet you still ask me the question.

At this point Jackie O intervened to bring the segment to an end and offer the family counselling, which is really the height of hypocrisy. It was abundantly clear before the segment began that the plan was to quiz the girl about her sex life, and that the girl was “scared” and did not want to participate. Counselling and sorrow? Give us a break.

Now many of us would not be too dismayed to see 2Day FM’s licence cancelled for this, but the truth is that the result would be endless appeals through administrative tribunals. ACMA is a weak regulator when it comes to ethical standards.

But the thing that takes my breath away is the hide of the radio station. 2Day FM claimed to ACMA that the incident was an “inadvertent” breach of the relevant codes.

“This has caused us great concern here at 2Day FM and we have undertaken a thorough review and implemented substantial enhancements to internal procedures to ensure that nothing similar happens again … the broadcast was only intended to be slightly controversial. No one at 2DAY FM was aware of the traumatic circumstances the teenager had faced in her past and we would never have allowed the teenager’s mother to ask if the teenager had had sex had we been aware of those circumstances.”

What weasel words. And ACMA’s response is the administrative law equivalent of bullshit.

The problem, ACMA says, was not the lack of awareness of the rape, and not Kyle ’s thoughtless comment immediately after the revelation, but the fact that such a segment could take place at all.

“The real essence of the problem here was not the presenters or their comments in the segment, but that such a segment could occur at all. Ultimately this was the responsibility of the licensee’s management.”

The result of all this is that 2Day FM has an additional clause inserted into its licence to the effect that when children are on air, their interests must be put first, and they must not be exploited. What have we come to when it is necessary to say such things in a licence condition?

And what have we come to when, despite the community outrage about the incident, 2Day FM has not suffered at all in the ratings. We all know that there will be people inside the station who are taking that as some kind of vindication.

Only when there is a real risk of losing a licence for this sort of conduct will broadcasters such as 2Day FM take their responsibilities seriously. We need law reform to give the regulator more teeth.  A broadcasting licence is a valuable thing — a licence to use the public asset of the broadcasting spectrum. It brings with it responsibilities. Everyone agrees to that in principle, but the practice is another thing entirely.

At least for once ACMA has been comparatively speedy in issuing its report. It has taken less than  six months, compared to two years  in an equally nasty case recently in which all three of our commercial television stations were found to have inaccurately and irresponsibly reported on Sudanese crime.

Six months is still too long, in my view. ACMA would say in its defence that the dictates of administrative law require so much to-ing and fro-ing and avoidance of the possibility of appeal that it is hard to move more quickly.

So there is need for law reform in this area, but there is also more ACMA could do.

The media release ACMA put out yesterday was headlined:

“ACMA finds 2Day’s Kyle and Jackie O Show breached the commercial radio codes and proposes to impose a licence condition”.

Well, hold the front page.

It’s not hard to think of some punchier ways to get the point across.

In a weak regulatory regime, public profile and naming and shaming is everything. ACMA could do much more to lift its profile, and thus the effectiveness of its rebukes. Clearly, we need it to do so.

Peter Fray

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