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«COMMERCIAL RADIO INQUIRY Report of the Australian Broadcasting Authority Hearing into Radio 2UE Sydney Pty Limited February 2000 Sydney ISBN 0 642 ...»

-- [ Page 15 ] --

we understand that Mr Jones is paid by Optus Vision to promote that company’s services. In those circumstances we would have thought it appropriate that he indicate his relationship with Mr Cousins prior to doing such an interview, or making editorial comment, lest his listeners were inadvertently led to believe that his views were given without the benefit of financial compensation.390 As early as 11 September 1995, therefore, 2UE was aware that the relationship between Mr Jones and Optus was (potentially at least) not what it was thought to be. While the disinterestedness of a complaint from a competitor of Optus might be open to question, the information supplied in the complaint (if true) should have been of some concern. Mr Conde gave evidence that he spoke with Mr Jones in relation to the complaint. Mr Conde’s

evidence was that Mr Jones had:

made the point fairly vigorously that his conduct was not in the slightest bit affected by anything other than his view that what Geoff Cousins was doing was a good thing and he endorsed it and that Foxtel was the competitor and naturally they would seek to raise something like this as an issue.391 Mr Conde gave evidence that Mr Jones also said that ‘my opinions are my opinions’.392 Mr Conde said that he accepted and still accepts Mr Jones’ assurances in this regard.393 Nevertheless, despite Mr Jones’ assurances that ‘his conduct was not in the slightest bit affected by anything other than his view that what Geoff Cousins was doing was a good thing’, 394 2UE did not seek to determine whether ‘anything other’ existed that might have a material bearing on the issue. In particular, 2UE did not ask to see the detail of Mr Jones’ contracts nor did it seek to satisfy itself that Mr Jones had no other contracts or agreements that might breach station policy or the Codes.

While Mr Conde gave evidence that at all relevant times he knew of Mr Jones’ contract with Optus and that he thought it related to work away from 2UE,395 he sent an e-mail to

Mr Harry Miller on 4 September 1998,396 in which he asked:

Am I supposed to know something about some Optus arrangement? … If Alan has some personal endorsement arrangement with Optus, then I refer you to me [sic] Circular Memorandum on that subject in July 1998. Have you advised me of any such Optus arrangement?397 This e-mail came from a CEO who says he had always known of Mr Jones’ Optus arrangement, but thought it related solely to off-air work.398 His explanation was that he thought perhaps there was more to the arrangement than he had previously supposed, or that there was some new Optus arrangement.399 This explanation does not fit the meaning naturally conveyed by the e-mail.

More telling however, is the fact that although Mr Conde claims to be asking for more information, he took no further steps to find out about any new or altered Optus 2UE.0025.0247.

Transcript, Mr Conde p. 1340.

Transcript, Mr Conde p. 1340.

Transcript, p. Mr Conde 1340.

Transcript, p. Mr Conde 1340.

Transcript, p. Mr Conde 1334-1336.

AJ.0001.0053.

AJ.0001.0053.

Transcript, Mr Conde p. 1336.

Transcript, Mr Conde, p. 1427-1430.

arrangement.400 2UE submitted that the last full paragraph of the e-mail may explain why Mr Conde failed to take the matter further: the matter was covered by the memorandum of 27 July 1998,401 which Mr Conde thought Mr Harry Miller had accepted.402 Mr Conde admitted in evidence that, with the benefit of hindsight, he regretted that he had not asked Mr Jones specifically for the details of his agreement with Optus prior to the issue of the memorandum of 27 July 1998.403 Mr Conde also gave evidence, however, that he ‘took comfort’ from Mr Jones’ assurances that he (Mr Jones) was not performing his obligations under the endorsement agreements.404 Findings

–  –  –

CONCLUSIONS

In spite of the warning signs, in spite of the complaint from Foxtel,405 2UE management did nothing effective to implement station policy.

2UE submits that Messrs Laws and Jones are independent contractors, providing their services to 2UE pursuant to their contracts of engagement. 2UE’s submission is that the following features of these contracts reflect the reality that the presenters offer their services

in a seller’s market:

The service company makes available the services of Mr Laws and Mr Jones only to the extent which is necessary for the preparation and presentation of the programs.406 The announcers and their service companies possess artistic control in relation to the programs.407 The announcers and their service companies are required to follow directions and guidelines issued on behalf of 2UE so long as those are reasonable.408 The announcers and their service companies are required to follow relevant laws, codes and guidelines and acknowledge that they receive information from 2UE in relation to same.409 Transcript, Mr Conde, p. 1430.

JL.0003.0506.

Submission, 2UE, para. 86.

Transcript, Mr Conde, p. 1372.

Transcript, Mr Conde, p. 1410.

Transcript, Mr Conde, p. 1339-1340; 2UE.0025.0247.

Laws/2UE contract clause 3.1; Jones/2UE contract clause 40.

Laws/2UE contract clause 5.1(c); Jones/2UE contract clause 6.3.





Laws/2UE contract clause 5.1(d); Jones/2UE contract clause 6.4.

The remuneration is, objectively speaking, very great.410 Rights of termination rest with the announcers and their service companies in respect of breaches by 2UE of relevant obligations, including the obligation to insist only upon compliance with reasonable guidelines and policies.411 2UE submitted that ‘the universe of directions which may be objectively reasonable in an employment context is much diminished when dealing with independent contractors’.412 2UE submits that the terms of the contracts do allow for 2UE to ensure compliance with the broadcasting codes of practice, but that the inquiries suggested by Counsel Assisting during the hearing are ‘more easily said than done’.413 Findings

–  –  –

Laws/2UE contract clause 5.1(o); Jones/2UE contract 6.14.

Laws/2UE contract clauses 1.1, 4.1(a); Jones/2UE contract clauses 5.2, 5.3, 1.1.

Laws/2UE contract – implied clause; Jones/2UE contract clause 8.6(e).

Submission, 2UE, para. 92.

Submission, 2UE, para. 92.

8 2UE Codes Breaches

COMPLIANCE WITH CLAUSE 2.2(D) OF THE COMMERCIAL

RADIO CODES OF PRACTICE

During the hearing, a number of broadcasts were alleged to have breached clause 2.2(d) of the Codes. The Panel has examined 68 broadcasts by Mr Jones in detail (see Schedule 11), and 111 broadcasts by Mr Laws (see Schedule 12).

From the material available to the Panel evidencing the content of a broadcast, in none of the broadcasts alleged to have breached clause 2.2(d) has there been adequate disclosure of the fact of a commercial agreement between Messrs Jones or Laws and a sponsor.

Findings

–  –  –

COMPLIANCE WITH CLAUSE 3.1(A) OF THE COMMERCIAL

RADIO CODES OF PRACTICE

During the hearing, a number of broadcasts were alleged to have breached clause 3.1(a) of the Codes. The Panel has examined 28 broadcasts by Mr Jones in detail (see Schedule 13), and 72 broadcasts by Mr Laws (see Schedule 14).

Findings

–  –  –

9 Political Matter BACKGROUND Section 42(2)(a) of the Act Section 42(2)(a) of the Act provides that each commercial radio broadcasting licence is subject to the conditions set out in Part 4 (‘Commercial Radio Broadcasting Licences’) of Schedule 2 to the Act, which sets out the standard conditions imposed on commercial radio

broadcasting licences. At Part 4, clause 8(1)(i) of Schedule 2 to the Act provides:

–  –  –

Clause 4 of Schedule 2 concerns the broadcasting by the licensee of political matter at the

request of another person. Clause 4 relevantly provides:

–  –  –

The expression ‘political matter’ is broadly defined for the purpose of the clause to mean ‘any political matter, including the policy launch of a political party’.

Guidelines for the Broadcasting of Political Matter In August 1998 the Australian Broadcasting Authority published ‘Guidelines for the Broadcasting of Political Matter’ to assist broadcasters and other persons to determine what is and what is not ‘political matter’ for the purposes of the Act.414Mr Conde circulated the 2UE.0013.2409-2412.

guidelines within 2UE on 17 August 1998415 and copies were given to Mr Jones416 and Mr Laws417 on the same day.

While the guidelines may provide assistance in understanding the requirements of Schedule 2 to the Act, the requirements of Schedule 2 must nevertheless be met. It is the Act that must be interpreted and applied, whether or not the guidelines exist as an aid in interpretation.

The Panel believes it is desirable to use the guidelines to assist in determining the matters before this hearing as they embody the policy of the Authority, and the Authority’s understanding of the legal effect of the provisions of sub-clause 4(2) of Schedule 2 to the Act.

The Authority, as an administrative body, is not bound by any of its previous findings or decisions. It has acknowledged, however, that its previous decisions provided the only published guidance as to what might constitute political matter at the time of broadcast. The Authority has also acknowledged that it was reasonable for licensees to take into consideration previous findings of the Authority in deciding whether or not the broadcast of matter constituted ‘political matter broadcast at the request of another person’ for the purposes of sub-clause 4(2) of Schedule 2 to the Act.

Of the nine broadcasts examined by the Panel in relation to compliance with sub-clause 4(2) of Schedule 2 to the Act, only one (the Bankers’ Association script entitled ‘Replacement Live Read: 27 May 1999’ broadcast on 27 May 1999) was broadcast after the publication of the guidelines. In examining the remaining eight broadcasts, the Panel has therefore considered whether the broadcast would have been categorised as political matter according to the Authority’s stated position before the publication of the guidelines as well as whether the broadcast would have been categorised as political matter under the guidelines.

COMPLIANCE WITH SUB-CLAUSE 4(2) OF SCHEDULE 2 TO THE ACT Nine broadcasts were examined by the Panel in relation to compliance with sub-clause 4(2) of Schedule 2 to the Act. These broadcasts were made on behalf of the Bankers’ Association (one), the Registered Clubs Association of New South Wales (four), the Road Transport Forum (three) and Foxtel Management Pty Limited (one). A summary of the Panel’s conclusions regarding each broadcast is contained below, whereas a detailed discussion of each broadcast can be found in Schedule Five of this report.

Bankers’ Association Script entitled ‘Replacement Live Read: 27 May 1999’, Broadcast on 27 May 1999

The Panel finds that:

♦ The subject matter was inherently political.

2UE.0013.2407.

2UE.0013.2424.

2UE.0013.2425.

♦ The broadcast is a broadcast of political matter for the purposes of subclause 4(2) of Schedule 2 to the Act.

♦ Mr Stewart approved the script of this matter and sent it to Mr Laws and to 2UE, asking that it be broadcast.

♦ The Bankers’ Association was responsible for the approval of the content of the political matter presented to 2UE and Mr Laws for broadcast.

♦ The Bankers’ Association arranged with 2UE for the broadcast of 150 live read advertisements over 40 weeks, and this material was one of those live read advertisements.

♦ Mr Stewart, on behalf of the Bankers’ Association requested that Mr Laws and 2UE broadcast the content of the script provided on 27 May 1999. Mr Stewart was responsible for approval of the content of the political matter and the decision to present it for broadcasting. Thus, the required particulars in relation to this broadcast were required to be announced following the broadcast of this matter.

♦ Neither the live read script, nor the transcript of the broadcast by Mr Laws contains the broadcast of the required particulars, nor do the required particulars appear on the audio tape recording of the broadcast.

♦ The required particulars were not broadcast in relation to this broadcast.

♦ While noting 2UE’s submission that there has been substantial compliance with the requirements, there has not been substantial compliance in this case. Nothing in the broadcast mentions Mr Stewart, the Bankers’ Association or the location of their principal office as required.

Finding

–  –  –

Registered Clubs Association of New South Wales Script Entitled ‘Keep the Money Local’, Broadcast Between 26 May 1997 and 13 June 1997

The Panel finds that:

♦ The subject matter was inherently political.

♦ The issues raised in these scripts were matters of significant media, community and political debate during the period in which the matter was broadcast.

♦ The RCA was responsible for the approval of the content of the political matter presented to Mr Laws and 2UE for broadcast. The RCA requested the broadcast of the content of the scripts provided to 2UE and to Mr Laws. Thus, the required particulars in relation to the broadcasts were required to be announced following the broadcast of these matters.

♦ The live read scripts provided to 2UE and to Mr Laws do not include the required particulars.

♦ While noting 2UE’s submission on this issue, there has not been substantial compliance in this case.

♦ The Rehame summaries record the key phrases of the broadcast, which closely correlate to the phrases in the scripts provided to Mr Laws. There is no indication in the Rehame summaries that the Club Hotline number was read out. There is no indication in the Rehame summaries that any required particulars were broadcast.



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