Notice of Intention to Impose an Additional Condition on Commercial Radio Broadcasting Licence No. 4103

Overview

The Broadcasting Services Act 1992 (BSA) was enacted to regulate broadcasting services in Australia, ensuring they comply with certain standards and codes of practice to protect the public from offensive content. The Act was introduced to address the need for a regulatory framework that could oversee the broadcasting industry, ensuring it operates within the bounds of community standards and legal requirements. The BSA is administered by the Australian Communications and Media Authority (ACMA), which was established to enforce compliance with broadcasting standards and to protect the public interest. The policy objective behind the Act is to maintain a broadcasting system that is both free and fair, whilst also safeguarding the community from potentially harmful or offensive content. In relation to the specific notice of intention to impose an additional condition on a commercial radio broadcasting licence, the ACMA has identified a need to impose stricter compliance measures on certain content broadcasted by the Licensee, Commonwealth Broadcasting Corporation Pty Ltd. The proposed additional condition aims to ensure that the "Kyle & Jackie O Show" or any other show hosted by or featuring Kyle Sandilands and/or Jacqueline Henderson does not broadcast content that is highly offensive to an ordinary reasonable listener or which contains explicit sexual references. The ACMA also requires the Licensee to commission an independent audit of its Governance Framework and to implement any recommended improvements to ensure compliance with the BSA and the relevant codes of practice. This action is taken to uphold community standards and ensure the proper regulation of broadcasting services in Australia.

Scope and Application

The Broadcasting Services Act 1992 (BSA) applies to all broadcasting services in Australia, including both commercial and community radio and television broadcasters, as well as subscription television services. The Act establishes the framework for the regulation of these services, ensuring they comply with certain standards and codes of practice. Specifically, the Act applies to entities holding broadcasting licences, such as the Commonwealth Broadcasting Corporation Pty Ltd, which holds the commercial radio broadcasting licence number 4103. The geographic reach of the Act is national, applying across the Commonwealth of Australia. The Act also extends its application through subordinate instruments such as codes of practice, including the Commercial Radio Australia Code of Practice 2017, which sets out standards for content broadcast by commercial radio services. The BSA does not explicitly state exclusions or exemptions, but the conditions imposed on licences can vary based on the nature and content of the broadcasts. The proposed additional condition on licence number 4103 specifically addresses content broadcast by the Kyle & Jackie O Show, requiring compliance with certain provisions of the Code and mandating an independent audit of the Licensee's Governance Framework.

Key Provisions

The Australian Communications and Media Authority (ACMA) has announced its intention to impose an additional condition on the commercial radio broadcasting licence held by Commonwealth Broadcasting Corporation Pty Ltd, pursuant to the Broadcasting Services Act 1992 (BSA) (sections 43(2)(a)). Specifically, the proposed condition pertains to 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 condition is intended to be in effect for a period of 5 years from the date it comes into effect. In terms of the main provisions, the proposed condition mandates that the Licensee must comply with clause 2.2 of the Commercial Radio Australia Code of Practice 2017 (as revised in 2018), or any equivalent provision in any replacement code registered by the ACMA under section 123 of the BSA. Additionally, the Licensee must ensure that the Program does not broadcast content that is highly offensive to an ordinary reasonable listener or which contains strong and explicit Sexual References. It is important to note that a single reference within the Program can constitute a Sexual Reference, and does not need to be recurring throughout the Program. The ACMA also imposes obligations on the Licensee, including the requirement to commission an independent audit of the Governance Framework by a compliance expert. This audit must be completed no later than 6 months after the date the licence condition comes into effect, and the auditor’s report must be provided to both the Licensee and the ACMA within 7 days of the audit’s completion. Furthermore, if the auditor recommends improvements to the Governance Framework, these must be implemented by the Licensee no later than 3 months after the receipt of the auditor’s report. Should the Licensee fail to comply with the proposed condition, there are potential consequences, both civil and criminal, as outlined in the Broadcasting Services Act 1992. The exact nature and severity of these consequences would depend on the specific circumstances of the breach, and the discretion of the relevant authorities. However, it is clear that non-compliance with the Act can result in serious repercussions for the Licensee, including fines and potential revocation of the broadcasting licence.