The one agency of media regulation in this country with genuine powers — the Australian Communications Media Authority — seems determined not to use them.

Yesterday it announced its finding that although TCN 9 in Sydney had clearly misled viewers on a matter of major political significance, there was “no substantive breach” of the station’s licence conditions, and there would therefore be no requirement for an apology or any significant sanction.

The material at issue was broadcast during TCN’s live coverage of the first preliminary final of the 2011 rugby league premiership last September. The main commentators were Ray Warren and Phil Gould. After singing the praises of the Manly club for its community work, Warren went on:

“The ongoing financial assistance of registered clubs across Australia ensure this, and many other worthwhile programs, continue. But they are under threat from the new untested technology the federal government plans to introduce. Funding from clubs is the lifeblood of many community programs and initiatives that we all enjoy. So for more information go to wontworkwillhurt.com.au”

At which point a graphic with the address of that anti-pokies reform website was helpfully flashed on the screen. Warren — who has publicly acknowledged his serious gambling addiction — then cued his co-commentator to ram home the message. Gould, who is employed by the Penrith Leagues Club, was happy to oblige:

“Yes, the proposed mandatory precommitment that they’ve put forward is a rubbish policy. It won’t work. It won’t solve the problem they say they’re going to target, and it will do irreparable damage to the hospitality industry. It won’t work, and it will hurt. You’re 100% right. I’ve never seen a more stupid policy in all my life.”

There was no disclosure that this blatant politicking had been hatched with Clubs Australia, the lobby group that represents an industry founded on poker machine gambling, and that established the “wontworkwillhurt” website.

Not surprisingly, ACMA soon found itself having to investigate eight complaints about the broadcast, including one from Senators Andrew Wilkie and Nick Xenophon, who have more than a passing interest in the politics of pokies.

Nine months later, in its toothless yet infinite wisdom, ACMA found that the Warren/Gould performance did not constitute the broadcast of “political matter”, even though Labor’s pokies reform proposals were among the most prominent and widely debated political issues at the time.

How did they get TCN off the hook? First, let’s be clear about the governing law. The act requires the broadcast of “any political matter” to be accompanied by an announcement confirming the name of the person who authorised the broadcast and where they live. Or, if that person is a corporation or association, the location of its principal office.

Meanwhile, ACMA’s investigation confirmed that the on-air announcement had come after extended exchanges between TCN executives and the clubs, and that the words spoken had been handed to Warren as a script to be read out at an appropriate moment during the telecast.

Smoking gun? Hell no. TCN argued that it didn’t have to include the “required particulars” acknowledging political matter because it had made the decision to broadcast the anti-pokies reform material all on its own, based on their view that the proposed legislation “might harm the ongoing viability of the NRL clubs”. ACMA, noting that the footy wasn’t a current affairs program, agreed.

In other words, Nine can script a blatantly political announcement, hand that to sports commentators to recite during a high-rating live telecast, falsely assert that those comments were purely the views of its commentators, later concede (in the face of plentiful evidence) that the whole thing had actually been arranged with the clubs industry — and get away scot free.

(The authority also found that as Nine had not been paid to broadcast the material, it was not a ‘commercial’ and therefore didn’t have to be distinguishable from other program material as required by the Commercial Television Industry Code of Practice 2010.)

As now seems to be the practice with ACMA, the tone of its published finding hinted at faint regret that the act did not allow it to make a sterner response. It observed that the situation is “anomalous” and that it now proposes to raise the matter with the networks during the next review of Free TV Australia’s codes of practice.

That’s all terribly civilised, but in a climate of increasing concern about our unregulated media is it acceptable for the government regulator to keep hiding behind the black letter law? Fine distinctions found within the Broadcasting Act don’t inspire any public faith in the authority’s resolve to police the self-interested excesses of commercial networks.

ACMA surely has an obligation, on behalf of the viewers who were so plainly duped, to make findings based on a fair and reasonable view of the evidence — and the courage to then fight the network lawyers if they were foolish enough to appeal.

Exhibit 1 in that case might be clause 1.16 in the industry’s own code of practice:

“A commercial, community service announcement, program promotion or station promotion must be readily distinguishable by viewers from program material.”

And exhibit 2 could be clause 1.21:

“If a licensee enters into a commercial arrangement in relation to a factual program, and the third party’s products or services are endorsed or featured in the program, the licensee must disclose the existence of that commercial arrangement.”

The massive undisclosed “commercial arrangement” here is the lucrative TV rights contract the Nine network has with the rugby league. That deal is now being renegotiated. Without its popular league coverage, Nine’s future in Sydney is bleak.

Which is, of course, why it sucked up to the clubs over pokies in the first place.

Peter Fray

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