20 June 2012


In Harbour Radio Pty Ltd v Australian Communications & Media Authority [2012] FCA 614 the Federal Court of Australia (Griffiths J) has found against Sydney radio station 2GB in its challenge to a new commercial broadcasting industry Standard on advertising disclosures.

The new Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard under subs 125(1) of the Broadcasting Services Act 1992 (Cth) replaces the 2000 industry standard that sat alongside the 2011 Commercial Radio Codes of Practice and that introduced requirements for on-air disclosure of the existence of commercial agreements between presenters of radio current affairs programs and their sponsors.

The 2012 Standard is aimed at encouraging broadcast licensees to
be responsive to the need for a fair and accurate coverage of matters of public interest by requiring disclosure of commercial agreements or other arrangements having the potential to affect content of current affairs programs.
That follows more than two decades of behaviour such as 'cash for comments', noted in previous posts of this blog and elegantly characterised by Griffiths J as resulting in a perception that "industry self-regulation was not ... operating to provide appropriate community safeguards in relation to, among other things, accuracy and fairness in current affairs programs".

Harbour Radio and Macquarie Radio Network (Harbour's parent) referred to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), s 39B(1A)(c) of the Judiciary Act 1903(Cth) and s 23 of the Federal Court of Australia Act 1976 (Cth) in challenging the Standard as a decision by ACMA, the national broadcast and telecommunications regulator.

Earlier this year in Harbour Radio Pty Limited v Australian Communications and Media Authority [2012] FCA 439 they had been unsuccessful in an application to stay the commencement of the 2012 Standard.

In the current case the Plaintiffs argued that -
a) the decision was made in excess of the jurisdiction conferred on ACMA by s 125(1) of the Broadcasting Services Act, including on the basis that the 2012 Standard was made in circumstances where relevant jurisdictional facts did not exist. They claimed in particular that ACMA acted without “convincing evidence” that a registered industry code of practice was not operating to provide appropriate community standards;
b) neither s 125 nor any other provision of that Act conferred jurisdiction on ACMA to make a standard such as the 2012 Standard which "burdens communications on political and governmental matters" and is "not reasonably appropriate and adapted to serve any legitimate and relevant purpose"
c) the decision to make the 2012 Standard was not reasonably or rationally proportionate to the community safeguards it sought to protect; and;
d) ACMA’s decision was so unreasonable that no reasonable person could so exercise the power.
The Court found that the Standard was not made in excess of jurisdiction nor was the standard unreasonable. The Standard does not impose obligations contrary to the constitutional implied freedom of political communication about government or political matters.