· Web viewFIVEaa believes that the use of the word ‘bitch’ is inappropriate in most ......

Investigation Report No. 2929

File No. ACMA2012/1693

Licensee Festival City Broadcasters Pty Ltd

Station 5AA Adelaide

Type of Service Commercial Radio

Name of Program Bob Francis

Dates of Broadcasts 17 and 30 August 2012

Relevant Code Clauses 1.3(a), 2.3(d) and 5.5 of the Commercial Radio Australia Codes of Practice 2011.

Date Finalised 15 July 2013Decision No breach of clause 1.3(a) of the Commercial Radio Australia

Codes of Practice 2011 in relation to the 17 August 2012 broadcast;

No breach of clause 2.3(d) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 17 August 2012 broadcast;

No breach of clause 1.3(a) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 30 August 2012 broadcast;

No breach of clause 2.3(d) of the Commercial Radio Australia Codes of Practice 2011 in relation to the 30 August 2012 broadcast; and

Breach of clause 5.5 of the Commercial Radio Australia Codes of Practice 2011.

ACMA Investigation Report – Bob Francis broadcast by 5AA on 17 and 30 August 2012

The complaintOn 5 December 2012, the Australian Communications and Media Authority (the ACMA) received a complaint about material broadcast by Festival City Broadcasters Pty Ltd, the licensee of 5AA Adelaide on the Bob Francis program. It concerned ‘unjustified language’ and ‘privacy issues’ in broadcasts aired on the 17 and 30 August 2012.

The investigation has considered the licensee’s compliance with clauses 1.3(a) [standards of decency], 2.3(d) [privacy] and 5.5 [complaints handing] of the Commercial Radio Australia Codes of Practice & Guidelines 2011 (the Code).

The programBob Francis (the Program) is a talk-back, current affairs program presented by Bob Francis and broadcast on weeknights between 8:00pm and 12:00am on 5AA in Adelaide.

Broadcast of 17 August 2012

On 17 August 2012, following a conversation discussing Wikileaks founder Julian Assange, the presenter, Mr Francis, made the following comment in response to a call from the complainant:

11.19pm: Oh, make up your bloody mind! Goodbye. That’s two wankers in a row! Un-bloody-believable. Make up your mind! Hello [R]...

Subsequently, another caller phoned the station and expressed disappointment that Mr Francis had referred to the complainant as a ‘wanker’. The following exchange ensued:

11.36pm: Mr Francis – How dare you! Why? Shut your mouth! [Caller’s name], I won’t ever allow you to come on again if you start talking like that.

Caller – Well, ban me if you want to...

Mr Francis – Go to hell, see you later again, goodbye. How dare you tell me what I can say to other people! Nothing wrong with calling people a wanker, I can tell you that! Hi [L]...


On 30 August 2012 while the Program was on air, the complainant sent emails to Mr Francis complaining about the absence of talk-back on the Program.

Mr Francis then made the following comments:

Well, [full name of the complainant], I’ll mention your first name and your second name. I thought you were a nice lady to tell you the truth, but because I went off at you the other night for some reason which I can’t remember ‘cause I don’t remember every caller I get, for you to write me a note like you did tonight, you can go to hell [complainant’s name], don’t ever call me again. You’re supposed to be the lovely, nice, polite, sweet lady who always sends cards and do all those sorts of things, how dare you! You bitch! ... You want to talk to me? Talk to me live, don’t send me bloody notes about what you think about the program, you smartarse. Ugh! And tonight was bad enough, me getting into a bad mood with [M] not turning up on time and everything, that really bugs me sometimes...

Transcripts of the broadcasts can be found at Appendix A.

ACMA Investigation Report – Bob Francis broadcast by 5AA on 17 and 30 August 2012 2

AssessmentThe ACMA’s assessment is based on correspondence between the licensee and the complainant, submissions from the licensee to the ACMA and copies of the broadcasts provided by the licensee and sourced from Media Monitors. Other relevant sources used have been identified in the report.

In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary, reasonable’ viewer listener.

Australian courts have considered an ‘ordinary, reasonable’ viewer to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.1

In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn. In assessing the accuracy of factual material which is presented, the ACMA will also consider relevant omissions (if any).

Once this test has been applied to ascertain the meaning of the material broadcast, it is for the ACMA to determine whether there has been a breach of the Code.

Issue 1: Generally accepted standards of decencyRelevant Code Clause

Program Content and Language, including Sex and Sexual Behaviour

1.3 (a) Program content must not offend generally accepted standards of decency (for example, through the use of unjustified language), having regard to the demographic characteristics of the audience of the relevant program.

1.3 (b) For the purposes of determining:

(i) the audience of the relevant program; and

(ii) the demographic characteristics of that audience,

regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the prior 12 months, (or, in the case of any licensee service operating in regional areas, the most recent official ratings surveys for the licensee’s service).

Broadcaster’s submissionsThe licensee’s submissions can be found at Appendix B.

FindingThe ACMA finds that the licensee did not breach clause 1.3(a) of the Code in relation to the broadcasts of the Bob Francis program on 17 and 30 August 2012.

1 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at pp 164–167.


ReasonsGenerally accepted standards of decency

Clause 1.3(a) requires the ACMA to consider the meaning of the phrase ‘generally accepted standards of decency’.

The objects of the Broadcasting Services Act 1992 (the BSA) include the promotion of the availability of a diverse range of radio services to audiences throughout Australia2. Another object is to encourage providers of broadcasting services to respect community standards in the provision of program material.

Determining the current consensus of recognised present day standards of decency is challenging because there is a range of standards within the community and there will always be different views on these matters.

The ACMA acknowledges that such standards are not hard and fast either over time or across all sections of the community. Diverse audiences in Australia will not have everyday tastes and standards in common. The majority of people in the community are likely to accept that material that they find coarse or offensive may not be similarly judged by others.

‘Generally accepted standards of decency’ is a broad concept and is not only defined by material that might be considered ‘indecent’. In determining whether a breach of Code 1.3 has occurred, the ACMA must reflect on whether material, which may not be to everyone’s taste, so offends generally accepted standards that it is inappropriate for broadcast.

Previously, where the ACMA has found breaches of the decency provisions of the code it has reflected on a number of matters, including:

> the subject matter or themes dealt with: for example, care needs to be taken with material that is sexually explicit or extremely sensitive3;

> the tenor or tone of the broadcast: for example, was it light-hearted or threatening; matter-of-fact or salacious4;

> the language used in the broadcast: for example, was it abusive, profane, vulgar or lewd5; and

> the attitudes conveyed: for example, did it show contemptuous disregard for human life or suffering6.

Demographic characteristics of the Program audience

Clause 1.3(a) of the Codes requires the ACMA to have regard (though not sole regard) to the demographic characteristics of the audience of the Program. Pursuant to clause 1.3(b) of the Codes, for the purposes of determining the audience of the relevant program and the demographic characteristics of that audience, regard must be had, in particular, to the results of any official ratings surveys of the licensee’s service in the past 12 months.

The licensee provided the ACMA with Nielsen Survey results for the period 31 July 2011 – 1 September 2012. The Survey does not provide information about the audience of the Program but indicates that the majority of the licensee’s listeners across all of its programs are aged 55 years and over.

2 See section 3(1)(a) of the BSA.3 Refer, for example, ABA Investigation 1270, and ACMA Investigations 1628 and 2266.4 Refer, for example, ACMA Investigation 2751 and 2848.5 Refer, for example, ACMA Investigations 1628, 1717 and 2848.6 Refer, for example, ABA Investigation 1270 and ACMA Investigation 2598 and 2848.


One of the relevant characteristics of the audience of a program would be the likely expectations of that audience. In that regard, it is considered that the Bob Francis audience would be familiar with his presentation style.

However, information about age and the audience’s familiarity with the Bob Francis program does not necessarily indicate attitudes of that group to the material that was broadcast on 17 and 30 August 2012.


On the broadcast of 17 August 2012, the licensee submitted:

Whilst we acknowledge that Bob was frustrated and appeared agitated with [the complainant] and the previous caller, and the use of the word ‘wanker’ is not to everyone’s liking, this kind of reaction to a hot topic is not unusual or unexpected to Bob’s listeners. On the contrary, Bob’s listeners expect and encourage this kind of showmanship and puffery. Notwithstanding this, we do not condone the use of derogatory language, however note that it is part of the show and, when heard in context, we do not believe that it is in breach of Code 1.3.


In relation to the broadcast of 30 August 2012, the licensee submitted:

[After briefly discussing the chain of events in relation [to] the exchange of emails between the licensee and the complainant]... With respect, it appears that [the complainant]... effectively ‘egged’ Bob on, knowing that his response would be heated, that he would strongly disagree with her...... FIVEaa believes that the use of the word ‘bitch’ is inappropriate in most circumstances. There are instances where the word has become part of a culturally acceptable vernacular. .. With respect to this particular circumstance, whilst we feel that [the complainant] did contribute to the situation and provoke Bob, and that this is not a breach of the Codes, Bob’s choice of words and reaction was inappropriate and should not have been broadcast. We have discussed this with Bob and set clear expectations with regard to this kind of scenario moving forward, as well as with respect to the language we consider inappropriate.

The ACMA makes the following observations about the broadcasts of 17 and 30 August 2012:

Mr Francis’s reactions (first to the complainant’s comments and later to her e-mail) were spontaneous and his comments were not calculated or premeditated;

Hot-headed reactions are typical of Mr Francis’s presentation style and would be familiar to his regular listeners;

The term ‘wanker’, while having a crude meaning that would be offensive to some people, is also a colloquialism referring to ‘a foolish or objectionable person’7 and was used only once in the broadcast of 17 August;

The terms ‘bitch’ and ‘smartarse’ were each used only once in the broadcast of 30 August.

In this case, although the remarks made by Mr Francis in each broadcast were to some extent aggressive and distasteful, they were not sustained over the duration of the program and they did not become increasingly crude, aggressive and disrespectful or have a strong cumulative impact. The ACMA finds that the broadcasts did not contain material of the type which is inherently indecent, for example material that was sexually explicit or otherwise

7 See http://www.macquariedictionary.com


extremely sensitive, or seriously disrespectful of a person, or vulgar in its use of language, or which conveyed contemptuous disregard for human life or suffering.

Having regard to general standards of decency and the demographic characteristics of the program, the content broadcast did not contain elements that were so offensive as to breach those standards.

Therefore, the licensee did not breach clause 1.3(a) of the Code in relation to the broadcast of 17 and 30 August 2012.

Issue 2: PrivacyRelevant Code ClauseNews and Current Affairs Programs

2.3 In the preparation and presentation of current affairs programs a licensee must ensure that:

[...]

(d) the licensee does not use material relating to a person’s personal or private affairs, or which invades an individual’s privacy, unless there is a public interest in broadcasting such information.

In assessing a segment’s compliance with clause 2.3(d) of the Code, the ACMA also takes into account the ACMA’s ‘Privacy guidelines for broadcasters, 2011’ (the Privacy Guidelines).

FindingThe licensee did not breach clause 2.3(d) of the Code.

ReasonsUnder the Code, current affairs programs include open-line discussions with listeners.

The ACMA’s Privacy guidelines for broadcasters, December 2011 set out the matters considered by the ACMA in assessing clause 2.3(d) of the Code:

Was a person identifiable from the broadcast material?

Did the broadcast material disclose personal information or intrude upon the person’s seclusion in more than a fleeting way?

If the answer to both of the above questions is yes, then the ACMA will consider:

Was the person’s consent obtained?

Was the broadcast material readily available from the public domain?

Was the invasion of privacy in the public interest?

As is usual in talk-back radio, the complainant’s first name and voice was used in the broadcast of 17 August 2012. Accordingly, she was most likely to be identifiable from the broadcast material. However, other than her name and voice, no other personal information was disclosed. In any event, as a talk-back caller she willingly participated in the broadcast, allowing her name and voice to be aired, and would reasonably expect to be identifiable from the broadcast. Accordingly, the ACMA considers that the complainant’s consent was obtained for the purposes of clause 2.3(d) of the Code.


In the broadcast of 30 August 2012, Mr Francis specifically referred to the complainant by both her first and second names in response to an email she had sent for his attention complaining about his program. The ACMA considers that the complainant was identifiable from the broadcast for the purposes of clause 2.3(d).

However, the broadcast did not reveal any personal information about the complainant, other than her full name, such as her address, her occupation or details of her personal life. The ACMA also does not consider that the broadcast material intruded upon her seclusion.

Additionally the ACMA considers that by emailing Mr Francis, the complainant would have reasonably expected her email to be read out and her name to be disclosed. Accordingly the, the ACMA considers that the complainant’s consent was obtained for the purposes of clause 2.3(d) of the Code.

As such, the ACMA is satisfied that the licensee did not breach clause 2.3(d) of the Code.

Issue 3: Complaints handling

Relevant Code ClausesComplaints

5.1 For the purposes of this Part, a complaint is an assertion... that the licensee has broadcast matter which, in the opinion of the complainant, breaches these Codes. Complaints need not specify the particular section of the Code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint.

Advice in writing

5.5 Written complaints must be conscientiously considered by the licensee and the licensee must use its best endeavours to respond substantively in writing within 30 business days of the receipt of the complaint. If the licensee needs to investigate the complaint or obtain professional advice and a substantive response is not possible within 30 business days, the licensee must, in any event, acknowledge receipt of the complaint within 30 business days and provide a final reply within 45 business days of receiving the complaint.

Broadcaster’s SubmissionsThe licensee’s submissions in relation to this issue can be found at Appendix B.

FindingThe licensee breached clause 5.5 of the Code.

BackgroundFollowing each of the broadcasts of 17 August 2012 and 30 August 2012, the complainant wrote letters of complaint to the licensee. She did not formally assert that the Code had been breached in either letter.

On 20 August 2012, the licensee responded to the complainant, stating (amongst other things) that, ‘whilst we feel the choice of words used by Bob was inappropriate and regretful in this instance, we do not believe that Bob or [FIVEaa] breached the [Code] or any other legal obligations by broadcasting the comments’.


On 5 September 2012, the licensee responded to the complainant’s second complaint, stating, ‘whilst we acknowledge that the comments may not be to everyone’s liking, and we accept that some Fiveaa listeners may not agree with the opinions expressed or the language used, we do not believe that the comments would offend generally accepted standards of decency for the purposes of the Code.’

It is noted that in each instance, the licensee advised the complainant that if she was not satisfied with its response, she could refer her complaint to the ACMA.

On 6 September 2012, the complainant wrote to the licensee again, this time expressly asserting breaches of the Code. This was done to ensure that her complaints would be treated as complaints for the purposes of clause 5.1 of the Code and section 148 of the Broadcasting Services Act 1992.

The complainant referred the matter to the ACMA and after some communications between the parties, the ACMA wrote to the licensee on 12 October 2012 making it clear that the complainant’s letter of 6 September 2012, which included a reference to the breaches of the Code, was the only valid complaint for the purposes of clause 5.1 of the Code;

The ACMA advised the licensee that clause 5.1 sets out the definition of a complaint, the effect of which is that it must include a clear assertion that the station has broadcast matter which, in the opinion of the complainant, breaches a provision or provisions of the Code. The ACMA noted the decision of the Federal Court of Australia in the matter of Harbour Radio Pty Ltd v Australian Communications and Media Authority [2010] FCA 478), in which this requirement was made clear, and attached a copy of that decision. The ACMA advised that consequently, while Fiveaa had provided responses to the complainant’s earlier complaints, as those complaints had not been made in accordance with the Code, the responses could not be regarded as a response to a Code complaint.

Despite this communication, the complainant received no further correspondence from the

licensee in relation to the matter. ReasonsLicensees are required to conscientiously consider and substantively respond to Code complaints.

The Complaint’s communication to the licensee of 6 September 2012 clearly alleged a Code breach: ‘I hereby refer to the “Commercial Radio Australia Codes of Practice 2011”. The dates of the two broadcasts in question were clearly identified, as were the terms that Mr Francis used during those two broadcasts, meeting the criteria set out in clause 5.1 of the Code.

The ACMA notes the licensee’s submission that it had already substantively responded to the issues raised by the complainant. However, the licensee had been made aware by the ACMA that these communications could not be characterised as responses to the Code complaint. This information was given in sufficient time for the licensee to respond within the time frame set out at code 5.5. The licensee’s failure to respond to the complaint of 6 September 2012 (for example, by repeating the substance of its communications of 20 August and 5 September), meant that the complainant was precluded from bringing a complaint to the ACMA on the basis of her dissatisfaction with the licensee’s response as provided at section 148(c)(ii), but had to await the 60 period at section 148(c)(i) of the BSA.

Accordingly, the ACMA finds that the licensee breached clause 5.5 of the Code.


Appendix ATranscripts17 August 2012, approximately 11:19pm

Mr Francis – Hi [complainant’s name].

Caller – Hi Bob, how are you?

Mr Francis - Good thanks.

Caller – Goodness, it’s an interesting program tonight!

Mr Francis – What a wanker!

Caller – Well... ok, everyone to their own opinion [chuckles].

Mr Francis – Yeah...

Caller – Ummm... I was just ringing up really to say I wholeheartedly agree with [the Producer] and his thoughts.

Mr Francis – That’s fine.

Caller – Ok...

Mr Francis – He’s laughing, he thinks it’s hahaha, I gotcha you bastard – bullshit! I still disagree with him.

Caller – Ok...

Mr Francis – Why do you agree with him?

Caller – Well, I think governments have always had their secrets, and ummm, yeah, I really...

Mr Francis - And so if government have got their secrets, we’re allowed to find them and tell the world about them?

Caller – No!

Mr Francis – Well, that’s what he did!

Caller – Oh, ok.

Mr Francis – Oh, now I win, do I?

Caller – Pardon?

Mr Francis – Now I win, do I?

Caller – No.

Mr Francis – Well... you’re just agreeing that...

Caller – I agree with...

Mr Francis - Oh, make up your bloody mind. Goodbye. That’s two wankers in a row! Un-bloody-believable. Make up your mind! Hello [R]...


17 August 2012, approximately 11:36pm

Mr Francis – Hi errr, [caller’s name], whaddya reckon, [caller’s name]?

Caller – Oh, I’m confused.

Mr Francis – [Laughter]. What a dick!

Caller – [Laughter]. Mate, I...

Mr Francis – Do you think Martyn Bryant’s not guilty? They have no evidence against him? What a joke!

Caller – I don’t know, I... [laughter], I’ll leave that...

Mr Francis – Oh, bloody make an opinion, for goodness sake!

Caller – Well, I have an opinion, but the thing is...

Mr Francis –What’s your opinion? You’re scared that I’m gonna say I disagree with you!

Caller - No, no, I’m not...

Mr Francis – Well, what then?

Caller – I’m not scared of what you say, that’s for sure! I’ve got more problems than you.

Mr Francis – Well what are you worried about?

Caller – I’m just... listening tonight, and I listen to your show all the time, I support your show...

Mr Francis – Mmm-hmm?

Caller – I was just a bit concerned... errr, I’ll say it, you’ll probably yell at me I suppose, but whatever...

Mr Francis – Doesn’t matter!

Caller – Mate, everybody’s got their opinion.

Mr Francis – Yes...

Caller – You’ve got your opinion...

Mr Francis – Yes...

Caller – And other people have their opinion too.

Mr Francis – Yes!

Caller – They see these things...

Mr Francis – What’s your bloody point?

Caller – My point is... I was just a bit upset about when [the complainant] called. And... calling her a wanker. That... [the complainant] is a lovely lady...

Mr Francis – How dare you tell me what I can tell other people!

Caller – I will tell you, Bob...

Mr Francis – How dare you! Why? Shut your mouth! [Caller’s name], I won’t ever allow you to come on again if you start talking like that.


Caller – Well, ban me if you want to...

Mr Francis – Go to hell, see you later again, goodbye. How dare you tell me what I can say to other people! Nothing wrong with calling people a wanker, I can tell you that! Hi [caller’s name]...

30 August 2012, approximately 10:07pm

Presenter – Well, [complainant’s full name], I’ll mention your first name and your second name. I thought you were a nice lady to tell you the truth, but because I went off at you the other night for some reason which I can’t remember cos I don’t remember every caller I get, for you to write me a note like you did tonight, you can go to hell [complainant’s name], don’t ever call me again. You’re supposed to be the lovely, nice, polite, sweet lady who always sends cards and do all those sorts of things, how dare you! You bitch! Just on seven and a half minutes past 10 o’clock. 8223 0000. You want to talk to me? Talk to me live, don’t send me bloody notes about what you think about the program, you smartarse. Ugh! And tonight was bad enough, me getting into a bad mood with [M] not turning up on time and everything, that really bugs me sometimes. 8223 0000, let’s talk to people. Errr, hi [caller’s name]...


Appendix BBroadcaster’s SubmissionsThe Licensee provided submissions to the ACMA on 10 January 2013. Relevantly, these included the following:

Code 1.3 – Comments – 17 August 2012 and 30 August 2012

On 15 January 2013, the licensee submitted the following in relation to clause 1.3:

On 17th August 2012, Bob was discussing Julian Assange and the Wikileaks issue. [The Producer] had given an opinion on the issue, which Bob had strongly disagreed with. Bob had also made it clear to listeners that he was in a bad mood that evening because a guest had arrived to his show late.

[The complainant] was put to air and stated that she agreed with [the Producer’s] view of the wikileaks issue (i.e. – that she disagreed with Bob). Bob became agitated at [the Producer] initially, then at [the complainant] after she was unable to answer, when asked by Bob why she felt that way.

Bob ended his call with [the complainant] and expressed frustration at her call and the previous caller.

Whilst we acknowledge that Bob was frustrated and appeared agitated with [the complainant] and the previous caller, and use of the word ‘wanker’ is not to everyone’s liking, this kind of reaction to a hot topic is not unusual or unexpected to Bob’s listeners. On the contrary, Bob’s listeners expect and encourage this kind of showmanship and puffery.

Notwithstanding this, we do not condone the use of derogatory language, however note that it is part of the show and, when heard in context, we do not believe that it is in breach of Code 1.3.

We note that Bob has enjoyed over 70 consecutive number 1 survey results over the past 8-9 years, which is an incredible achievement. His listenership is fiercely loyal and is very familiar with his style of presentation on-air. Listeners have been known to egg Bob or even to complain when he doesn’t have a strong opinion or use strong language with callers. His show has developed a distinct flavour and tone over many years which, we acknowledge, is not to everyone’s taste and liking. However, to Bob’s listeners this is all part of his persona and a reaction they expect to hear and often encourage. Whilst unconventional, to Bob’s listeners this is all part of the show and has been for almost 27 years.

Bob’s listenership is predominantly over 45 years of age.

With respect to the audio from 30 August 2012, [the complainant] had sent an email to Bob questioning the integrity of Bob’s show as a true ‘talkback program’... Understandably, Bob was upset by these comments, as [the complainant] knew he would be.

[The Producer] was reluctant to pass these comments on to Bob. He then indicated that he contacted [the complainant] to confirm that he would pass her comments onto station management. [The Producer] states that [the complainant] indicated that her comments were addressed to Bob, not the management, and therefore wanted them passed on directly to Bob.

With respect, it appears that [the complainant], a regular listener and contributor, effectively ‘egged’ Bob on, knowing that his response would be heated, that he would strongly disagree with her and defend the interactive, ‘talk’ element of his show which it is widely known he is


proud of. Whilst we acknowledge that Bob’s reaction and choice of words was inappropriate and ill-considered, we do not think [sic – sentence left unfinished].

That being said, we have spoken with Bob about this incident in detail and the use of language towards [the complainant]. [The licensee] believes that the use of the word ‘bitch’ is inappropriate in most circumstances. There are instances where this word has become part of a culturally acceptable vernacular and is often broadcast as part of songs or music with no complaints or negative feedback from listeners. With respect to this particular circumstance, whilst we feel that [the complainant] did contribute to the situation and provoke Bob and set clear expectations with regard to this kind of scenario moving forward, as well as with respect to the language we consider inappropriate.

Code 5.5

On 15 January 2013, the licensee submitted the following in relation to clause 5.5:

[The licensee] treated the original complaint made by [the complainant] as a formal complaint under the Codes, and [the licensee] also treated the second complaint made by [the complainant] as a formal complaint under the Code. This is clear from the nature of the response, the references to the Codes in [the licensee’s] response and the reference to referring the complaint to the ACMA should [the complainant] be unhappy with the response(s).

There is no breach of Code 5 here. [The licensee] responded substantively on two separate occasions (which is above what is required under the Code) to the issues raised in [the complainant’s] complaint. The issues were properly addressed within required timeframes. There was nothing in the letter of 6 September 2012 which raised any additional material which had not already been addressed by [the licensee]. [The licensee] met all of its obligations under Code 5. To assert otherwise would be incorrect and is denied strongly by [the licensee]. We respectfully ask the ACMA to use a common sense approach here. The two responses provided by [the licensee] are responses to [the complainant’s] complaints – all three of them.

We understand that the recent Harbour Radio Case has changed the way the ACMA investigates complaints. However, it does not fundamentally change the requirements under Code 5 with respect to the way complaints are responded to.

It appears from the ACMA’s approach to this complaint that [the licensee] should have ‘re-sent’ its responses to [the complainant] (responses she had already received) after she sent her third complaint, as she was advised to do so by the ACMA. We note this for future reference, however we do not think this affects the validity of the first two responses by [the licensee] for the purposes of compliance with Code 5.

Should the ACMA have elected to investigate [the complainant’s] complaints on the ground that she was unsatisfied with [the licensee’s] response, then we understand this. However, if the ACMA has elected to do so on the basis that [the complainant] did not receive a response from [the licensee], then this is incorrect and denied in the strongest terms by [the licensee].

On 10 May 2013, in response to the ACMA’s Preliminary Investigation Report, the licensee submitted the following in relation to clause 5.5:

[The licensee] understands but respectfully disagrees with the ACMA’s position with respect to Code 5.5.

It is disappointing to [the licensee] that a commonsense approach could not be taken her.


To end up with a process whereby a licensee is required to ‘re-send’ complaint responses (which have already been internally investigated, audio located, drafted, processed, logged, approved, sent and then filed) or face a breach of Code 5, is, quite frankly, ridiculous. It represents an additional administrative burden for licensees, gives complainants the ability to manipulate the system and cause extra work for licensees, and does not achieve any positive, constructive outcome that we can see.

[The licensee] clearly treated each of the complainant’s letters as formal complaints for the purposes of Code 5. This is evidenced by the nature of the responses and the referral to the ACMA at the bottom of each response. When the ACMA contacted [the licensee] regarding the ‘third’ complaint (a letter which was almost identical to the previous complaints but which included a specific Codes reference) [the licensee] made it very clear to the ACMA that it considered its previous responses to the issues covered everything set out in the ‘third’ complaint and did not intend to respond to the same issues for a third time.

[The licensee] made it clear that it was more than happy for the ACMA to investigate its two existing complaint responses, which it did, in fact, appear to do.

Notwithstanding the fact that [the licensee] considered the first two complaints to be formal complaints, the fact that information exists at the time a formal complaint (as defined by the ACMA) is made, does not prevent the ACMA from taking into account that information in determining whether a substantive response has been made, especially where that existing information directly addresses the concerns made in the formal complaint.

On at least one occasion in recent years, the ACMA has contacted stations related to the licensee and requested that an informal complaint be ‘treated as a formal complaint’ under the Codes, in order to speed up, or facilitate an investigation. There is precedence within the ACMA for flexibility around this approach. It is in this spirit of cooperation, commonsense dealing and reasonable collaboration that [the licensee] and DMG Radio (Australia) operates.

Again, whilst we understand the ACMA’s position, we feel that a breach finding is inappropriate in the circumstances and strongly ask the ACMA to reconsider its position on this matter.


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