AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY
Broadcasting Services Act 1992
NOTICE OF ADDITIONAL CONDITION ON COMMERCIAL RADIO BROADCASTING LICENCE NO. 4142
Pursuant to subsection 43(4) of the Broadcasting Services Act 1992 (BSA), the Australian Communications and Media Authority (the ACMA) hereby imposes an additional condition on the commercial radio broadcasting licence number 4142 held by Double T Radio Pty Ltd (the Licensee) in the following terms:
Definitions
In this licence condition:
Commencement means the date of Gazettal of this licence condition.
Sexual References includes spoken words and/or sound effects that would be understood by the ordinary reasonable listener as having a sexual meaning.
Governance Framework means the Licensee’s systems, processes, contracts, policies and training that are relevant to the Licensee’s compliance with clause 2.2 of the Commercial Radio Australia Code of Practice 2017 (revised in 2018) (the Code), or any equivalent provision in any replacement code registered by the ACMA under section 123 of the BSA. For the purposes of this definition, contracts include program supply agreements and employment contracts.
Program means the Kyle & Jackie O Show or any other show hosted by and/or featuring Kyle Sandilands and/or Jacqueline Henderson, alone or in combination with another presenter(s) or guest(s).
This licence condition will be in effect for a period of 5 years from Commencement.
- The Licensee must, in respect of the Program, comply with clause 2.2 of the Code, or any equivalent provision in any replacement code registered by the ACMA under section 123 of the BSA.
- Without limiting paragraph 1, the Licensee must ensure that the Program does not broadcast content which is highly offensive or which contains strong and explicit Sexual References by the standards of an ordinary reasonable listener.
- The Licensee must commission an independent audit of the Governance Framework by a compliance expert on the basis that:
- the audit will be completed no later than 6 months after the date of Commencement of this licence condition; and
- the auditor’s report of the independent audit will be provided to the Licensee and the ACMA within 7 days after completion of the independent audit.
- The Licensee must:
- within 3 months of receipt of the independent auditor’s report, provide the ACMA with a board-approved implementation plan setting out the steps the Licensee has taken, or will take, to implement all recommendations made by the auditor, including timeframes within which those recommendations will be implemented (unless the ACMA specifically agrees that any recommendation need not be implemented upon request in writing from the Licensee);
- comply with the board-approved implementation plan and timeframes (save to the extent to which that plan or timeframes may be modified as permitted by a written approval from the ACMA); and
- produce a written report to the ACMA 12 months after the date the implementation plan is provided to the ACMA, and every 12 months after this date for the duration of the licence condition, which details the status of recommendations made in the audit report and progress against the implementation plan.
Overview
The Broadcasting Services Act 1992 (BSA), enacted by the Commonwealth Parliament, was introduced to regulate the broadcasting services in Australia, ensuring that broadcasters comply with community standards and other relevant laws. The BSA provides the legal framework for the operation of radio and television services, including the licensing and regulation of commercial radio and television broadcasters. The policy objective of the BSA is to ensure that broadcasting services are managed in a manner that is in the public interest, including the protection of children from inappropriate content and the maintenance of standards of decency. In this context, the BSA empowers the Australian Communications and Media Authority (ACMA) to impose conditions on broadcasting licences to address specific issues or concerns related to the content or operation of a particular broadcaster. This authority is exercised through the issuance of notices, such as the one imposing additional conditions on the commercial radio broadcasting licence number 4142 held by Double T Radio Pty Ltd, to ensure compliance with relevant broadcasting standards and community expectations.
Scope and Application
The Broadcasting Services Act 1992 applies to entities such as Double T Radio Pty Ltd, which holds a commercial radio broadcasting licence. The Act governs the content and operational standards of broadcasting services within Australia, including specific regulations for commercial radio. The additional condition imposed on the licence number 4142 pertains to the program hosted by Kyle Sandilands and Jacqueline Henderson, specifically to ensure compliance with the standards outlined in the Commercial Radio Australia Code of Practice 2017. The condition mandates that the program must not broadcast content that is highly offensive or contains strong and explicit sexual references by the standards of an ordinary reasonable listener. Additionally, the Licensee is required to commission an independent audit of its governance framework to ensure compliance with these standards and to submit a board-approved implementation plan based on the audit’s findings. The Licencee must also report on the progress of implementing the audit recommendations to the Australian Communications and Media Authority (ACMA) on a yearly basis for the duration of the licence condition.
Key Provisions
The primary operative sections of the notice establish that an additional condition has been imposed on the commercial radio broadcasting licence number 4142 held by Double T Radio Pty Ltd. This condition, as outlined in subsection 43(4) of the Broadcasting Services Act 1992 (BSA), requires the Licensee to adhere to specific standards concerning the content broadcast on the Kyle & Jackie O Show or any other show hosted by or featuring Kyle Sandilands and/or Jacqueline Henderson. The Licence Condition specifies that the program must not broadcast content that is highly offensive or includes strong and explicit sexual references by the standards of an ordinary reasonable listener. This condition is in effect for a period of five years from the date of gazette.
The Act imposes several obligations on the Licensee. Firstly, the Licensee must ensure that the specified program does not broadcast content that is highly offensive or contains strong and explicit sexual references. This aligns with the requirements of clause 2.2 of the Commercial Radio Australia Code of Practice 2017 (revised in 2018) or any equivalent provision in any replacement code registered by the ACMA under section 123 of the BSA. Secondly, the Licensee is required to commission an independent audit of its Governance Framework by a compliance expert. This audit must be completed no later than six months after the date of commencement of this licence condition, and the auditor's report must be provided to both the Licensee and the ACMA within seven days of completion. Thirdly, upon receipt of the auditor’s report, the Licensee must provide the ACMA with a board-approved implementation plan detailing the steps taken to implement all recommendations made by the auditor, including timeframes for implementation. The Licensee must then comply with this implementation plan and report on the status of recommendations and progress against the plan to the ACMA on an annual basis for the duration of the licence condition.
There are no explicit offences or penalties stated in the notice itself. However, non-compliance with the BSA, which governs the imposition of this licence condition, can lead to significant civil or criminal consequences. Under section 127 of the BSA, a person who contravenes a licence condition can be fined up to $21,000 for a corporation and $4,200 for an individual. Additionally, under section 128 of the BSA, a court can declare that a licence condition has been contravened, which can result in the Licencee facing further penalties or having its licence revoked, suspended, or otherwise affected. These provisions underscore the seriousness with which the BSA treats compliance with broadcasting standards.