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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 73 ] --

In the Daily Telegraph last week, you read the headline that soaring fees, soaring bank fees, that helped them do it. Fees and commissions alone earned the bank $1.2 billion. It’s a lot of fees, isn’t it. $1.2 billion fees and commissions alone. Wow. Did you by any stretch of the imagination get $1.2 billion of service back from your bank?

The bank also closed 116 branches, so I guess people who live in these 116 suburbs and country towns that lost their branches, they might say that they didn’t get very good service at all, and yet again, we have the head of the bank saying, well good year.

Though it’s going to be tougher to make another big profit next year. Remarkable how they always seem to manage that isn’t it? I mean there’s something you can do about it if you don’t like the bank’s attitude. You can have a talk to RAMS about a home loan, and when you call up RAMS and they come out to see you, they will tell you that RAMS charges no monthly fees. Now that’s very interesting. They don’t charge any monthly fees and yet the bank made $1.2 billion in commissions and fees. $1.2 billion.

RAMS don’t charge any monthly fees, you seem RAMS isn’t a bank. It’s a whole new way of getting a home loan. They looked at the old way of doing things and decided to do it better.

They’re happy you for you to compare the prices and the charges, compare their terms with everybody, compare their attitude too. The way they look after you during the loan process.

You won’t do better, I can tell you, because RAMS aims to give you the best imaginable home loan experience. 1800 069 070, 1800 069 070, that’s who you call, RAMS, that’s if you want a better home loan.

Material Broadcast by Mr Laws

On 13 August 1998 Mr Laws broadcast the following:

I see the Commonwealth Bank has managed to achieve another big profit, over a $1 billion.

She’ll hate them for that too, I suppose. A lot of people will hate them for it.

In the Daily Telegraph last week, you read the headline that soaring fees, soaring bank fees, that helped them do it. Fees and commissions alone earned the bank $1.2 billion. It’s a lot of fees, isn’t it. $1.2 billion fees and commissions alone. Wow. Did you by any stretch of the imagination get $1.2 billion of service back from your bank?

The bank also closed 116 branches, so I guess people who live in these 116 suburbs and country towns that lost their branches, they might say that they didn’t get very good service at all, and yet again, we have the head of the bank saying, well good year.

Though it’s going to be tougher to make another big profit next year. Remarkable how they always seem to manage that isn’t it? I mean there’s something you can do about it if you don’t like the bank’s attitude. You can have a talk to RAMS about a home loan, and when you call up RAMS and they come out to see you, they will tell you that RAMS charges no monthly fees. Now that’s very interesting. They don’t charge any monthly fees and yet the bank made $1.2 billion in commissions and fees. $1.2 billion.

RAMS don’t charge any monthly fees, you seem RAMS isn’t a bank. It’s a whole new way of getting a home loan. They looked at the old way of doing things and decided to do it better.

They’re happy you for you to compare the prices and the charges, compare their terms with everybody, compare their attitude too. The way they look after you during the loan process.

You won’t do better, I can tell you, because RAMS aims to give you the best imaginable home loan experience. 1800 069 070, 1800 069 070, that’s who you call, RAMS, that’s if you want a better home loan.

The Panel’s Finding

For the following reasons the Panel finds that the matter broadcast is an advertisement:

♦ it is calculated or designed to promote RAMS by being mainly concerned with favourably comparing RAMS with the established banks, particularly in relation to bank fees, and by making comments about RAMS that were all positive; and ♦ valuable consideration was provided to Mr Laws by RAMS.

The Panel also notes that in its submission, 2UE considered the broadcast to be an advertisement.

For the following reasons the Panel finds that this advertisement has been presented as an ‘other program’, in this case a current affairs program:

♦ it has the characteristics and content of a current affairs program; and ♦ it appears to be concerned with matters relating to social and economic issues of relevance to the community, namely bank fees, bank closures and the profits earned by banks.

The Panel finds that 2UE breached clause 3.1(a) of the Codes.

Schedule 15: Political matter

LICENCE REQUIREMENTS

Section 42(2)(a) of the Act provides that each commercial radio broadcasting licence is subject to the conditions set out in Part 4 of Schedule 2 to the Act. The conditions set out in Part 4 of Schedule 2 to the Act include a condition that the licensee will comply with clause 4 of Schedule 2 to the Act.1157 Clause 4 of Schedule 2 concerns the broadcasting by the licensee of political matter at the request of another person. Where this occurs, the licensee must ‘immediately afterwards, cause the required particulars in relation to the matter to be announced in a form approved by the ABA’.1158 The ‘required particulars’, where the broadcasting was at the request of a





person other than a political party, are:

♦ the name of the person who authorised the broadcast;

♦ the place where the person lives or, if the person is a corporation or association, in which the principal office of the person is situated; and the name of every speaker.1159 ♦ For the purposes of clause 4, a person authorises the broadcasting of political matter – or

political matter is broadcast at the request of a person – only if the person is responsible for:

♦ approval of the content of the political matter; and the decision to present it for broadcasting.1160 ♦ 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’.

Scope of Political Matter In August 1998 the Australian Broadcasting Authority published Guidelines to assist broadcasters and other persons to determine what is and what is not ‘political matter’ for the purposes of the Act.1161 The Guidelines

The Authority’s Guidelines state:

Clause 8(1)(i) of Schedule 2 to the Act.

Clause 4(2) of Schedule 2 to the Act.

Clause 1 of Schedule 2 to the Act, definition of required particulars, paragraphs (b) and (c).

See clause 4(4) of Schedule 2 to the Act.

2UE.0013.2409-2412 To be political matter, the matter broadcast must, when viewed objectively, be capable of being properly characterised as participation in the political process or an attempt to influence or comment upon that process, the administration of government or those who participate in these activities.

The Guidelines also state that:

Any matter broadcast which advocates a certain point of view with regard to government and its policies, or political parties and their policies, would fall within the definition of political matter regardless of when it is broadcast. However, matter which is simply promoting a product or service would not fall within the definition of political matter merely because it refers to something which is political.

This is consistent with – and is perhaps slightly more confined than – the view that has been taken of what is ‘political’ in the context of the constitutional freedom of political communication: e.g. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 124; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560-561; Brown v Classification Review Board (1998) 82 FCR 225 at 237-238.

Mr Conde circulated the Guidelines within 2UE on 17 August 1998,1162 and copies were given to Mr Jones,1163 and Mr Laws,1164 on the same day. Mr Jones responded on 1 September 1998 that ‘it all seems as clear as mud to me’.1165

Counsel assisting has submitted that:

Much of what is presented by John Laws and Alan Jones on 2UE can properly be described as ‘political matter’. However, clause 4 comes into play only where the political matter can properly be said to be broadcast by 2UE at the request of another person: that is, where another person is responsible for approving the content of the political matter and the decision to present it for broadcasting.

On the evidence before the hearing, there are four cases in which the broadcasting of matter on radio 2UE at the request of an advertiser involved breaches of clause 4. All of them involved material presented by John Laws. Three appear to have involved booked live reads. In none of the cases was there a broadcasting of the required particulars.1166

The Broadcasts Alleged to Breach Clause 4 of Schedule 2 to the Act

The live read advertisement for the Bankers’ Association broadcast on 27 May 1999 is the only episode before the Panel to have occurred after the publication of the Guidelines. The remaining broadcasts occurred prior to the publication of the Guidelines by the Authority in August 1998.

In the context of commenting on a preliminary investigation report by the Authority into a failure to broadcast the required particulars, comment has been made regarding the desirability of using Guidelines as an aid where the broadcast was made prior to the existence of the Guidelines.1167 In that context, it was submitted to the Authority that it was 2UE.0013.2407 2UE.0013.2424 2UE.0013.2425 2UE.0013.2418 Submissions of Counsel Assisting, paragraphs 90-91.

ABA Inquiry into Commercial Television Stations BTQ, QTQ, RTQ, STQ, TNQ & TVQ, entitled ‘Queensland Government Advertisements November 1997 to May 1998’.

‘not open to the Authority to apply Guidelines which at the relevant time did not exist.’1168 The Authority did not agree with this proposition. The Panel also does not agree with this proposition.

While the Guidelines may provide assistance in understanding the requirements of Clause 4(2) of Schedule 2 to the Act, the requirements of Clause 4(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 to determine 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 clause 4 of Schedule 2 to the Act.

The Authority, as an administrative body, is not bound by any of its previous findings or decisions. However, it has acknowledged 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 Clause 4(2) of Schedule 2 to the Act.

In examining the remaining episodes of the broadcast of political matter alleged to contravene Clause 4 of Schedule 2 of the Act, 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.

In a previous investigation, the Authority considered the broadcasts in the light of the Guidelines as well as the previously stated position of the Authority.1169 The Practice of the Authority Prior to the Publication of the Guidelines In conducting investigations into the broadcast of political matter prior to the publication of the Guidelines, the Authority took the view that for a matter to be ‘political matter’ it must, when taken as a whole, deal with an issue that was also a political issue at the time of the broadcast. A political issue was accepted as an issue where the political, media and community debate surrounding the issue was such that it was a prominent issue of public debate.

Radio 2UE‘s Submission 2UE made the following general submissions regarding the allegations that political matter had been broadcast on 2UE at the request of another person without the requisite particulars

also being broadcast:

There are four episodes of political matter broadcasting which are relied on by Counsel Assisting. In relation to three of them (involving the Australian Bankers’ Association, the Australian Trucking Association and the Registered Clubs’ Association) the material was Submission by Freehill, Hollingdale & Page, solicitors.

ABA Inquiry into Commercial Television Stations BTQ, QTQ, RTQ, STQ, TNQ & TVQ, entitled ‘Queensland Government Advertisements November 1997 to May 1998’.

broadcast during paid live read advertising. As a consequence, it is not a phenomenon connected with any of the relevant endorsement agreements.

In relation to those broadcasts, 2UE submits that:

(a) The definition of ‘political matter’ in the Act is circular; see definition in section 1 of schedule 2 of the Act. It is often difficult to tell whether a particular broadcast is in truth ‘political’. The Authority’s guidelines do not really overcome this difficulty. The material broadcast particularised by the Authority in this Inquiry was only in a very general sense ‘political’. It is inappropriate to analyse this requirement by reference to the meaning attached to the words ‘political matter’ arising from the line of cases which considered the possibility of an implied constitutional freedom.



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