01 Jun 2010

What is a complaint under the Commercial Radio Codes of Practice?

by Mary Still, Kate Jordan

The decision in Harbour Radio clarifies the rules on handling complaints against commercial radio licensees, and ACMA's investigatory powers.

Commercial radio licensees must comply with the Commercial Radio Codes of Practice, including in the way in which it handles complaints - but what is a complaint? How specific must the complaint be about an alleged breach of the Commercial Radio Codes of Practice?

The recent Federal Court decision in Harbour Radio Pty Ltd v Australian Communications and Media Authority [2010] FCA 478 gives some answers.

The broadcast, the unhappy listener, and the letter to the radio station

Mr Kalfa was unhappy about allegations made on Radio 2GB (owned by Harbour Radio) about his small business. He wrote a letter to the station responding to the allegations, noting the effect they had upon his business, and asking the station to give its "urgent attention to the matters we have raised with a view to redressing the situation."

He then complained to the Australian Communications and Media Authority (ACMA), saying that 2GB had breached the Commercial Radio Codes of Practice. ACMA then launched an investigation.

What does the Broadcasting Act say about complaints and ACMA investigations?

Under section 148 of the Broadcasting Act, a person can complain to ACMA about the way a commercial radio licensee handled a complaint under the Commercial Radio Codes of Practice when

  • the person has made a complaint to a provider of broadcasting services on a matter relating to program content or compliance with an applicable code of practice
  • the complaint was made in accordance with a relevant code of practice relating to the handling of complaints of that kind (if there is one); and
  • the person has either not received a response within 60 days, or thinks the response is inadequate.

If the complaint meets all those requirements, ACMA must investigate it, unless it is satisfied that the complaint to it is frivolous or vexatious or was not made in good faith.

What is a complaint under the Commercial Radio Codes of Practice?

But what is a complaint? The Commercial Radio Codes of Practice say that "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 section of the code to which the complaint relates, but must adequately identify the material broadcast and the nature of the complaint."

While it was quite clear that Mr Kalfa was not happy, his letter was not a complaint within the meaning of the Codes and Act because it wasn't apparent that he was alleging a breach of the Codes. A complaint here must:

  • allege a breach of the Commercial Radio Codes;
  • identify the alleged character of the breach

The commercial radio licensee is not required to search for, or eliminate, implications that might arise from the terms of a letter, or speculate about the writer's opinion.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.