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94/1999 13
October
Further
directions in 2UE hearing
On 12
October 1999, the Australian Broadcasting
Authority held a second hearing conference to
make directions in relation to its upcoming
hearing re: 2UE, John Laws and Alan Jones.
The
directions made by the Professor David Flint, ABA
Chairman, are attached. They:
- provide
the names of additional parties who have
been given leave to participate in the
hearing;
- direct
those wishing documents provided to the
ABA to be deemed confidential to make
submissions on why they think they should
be;
- direct
that any person summonsed to appear at
the hearing may provide a statement of
evidence;
- direct
that on 19 October 1999, the ABA will
deal with questions of how confidential
documents and information are to be dealt
with in the hearing; and
- direct
that Counsel Assisting the ABA addresses
the hearing with an opening on 20 October
1999.
The
ABA has provided a number of persons with a
notice to appear before the ABA to give evidence
in relation to the subject matter of the 2UE
hearing. A full list is included in the
backgrounder to this news release. It should be
noted that these are the people that the ABA has
decided to summon, contrary to press reports that
parties have made that decision. Parties have not
yet indicated to the ABA who they might seek to
call.
Preliminary
indications from counsel assisting the ABA
indicate that the witnesses are likely to be
called in the following order:
1.
Witnesses from the advertisers;
2. John Laws;
3. Alan Jones;
4. 2UE witnesses.
Within
the witnesses from the advertisers it is proposed
to call the witnesses from the Australian Bankers
Association first and then other witnesses in an
order yet to be determined.
The
ABA has recently widened the terms of reference
of the hearing to include consideration of
whether the conduct of the presenters, in giving
effect to their agreements, has lead to political
matter being put to air without it being
‘tagged’ as required by the Broadcasting
Services Act 1992. A copy of the revised
terms of reference is
below.
"This
is just another aspect of considering the effects
of editorial material put to air in the context
of the requirements of the Broadcasting Services
Act," said Professor Flint. "This
matter is already covered by the terms of
reference of the ABA’s broader inquiry, but
it is convenient that it be considered in the
public hearing."
At
yesterday’s hearing, after considering
submissions from the parties, Professor Flint
ruled that television and radio broadcasters
would not be permitted to record or broadcast the
opening statements or witness testimony at the
hearing. He left open the possibility of
broadcasters recording or broadcasting the
closing addresses. The ABA’s reasons are
included in the backgrounder.
As
public seating is limited in the hearing room, on
the 10th floor, 80 William Street, Sydney, the
ABA will use an accreditation scheme for
journalists who wish to cover the hearing.
Journalists who wish cover the hearing should
inform the ABA in writing by 5 pm on Friday
15 October to ensure a seat. The ABA’s
fax number is (02) 9334 7799. A copy of the
ground rules for media coverage of the hearing is
attached. Television broadcasters will be
permitted to record establishment shots in the
hearing room from 9.50 – 10.10 am on
Wednesday 20 October, before the opening
address by Counsel Assisting the ABA.
Go to
the transcript of
yesterday’s hearing and other public
documents
relevant to the ABA’s inquiry and hearing.
BACKGROUNDER
The
directions made on 12 October were as follows:
Broadcasting
Services Act 1992
Australian Broadcasting Authority
Hearing re 2UE, JOHN LAWS and ALAN JONES
DIRECTIONS made on 12 OCTOBER 1999
1. In
addition to those granted leave by the Authority
on 20 September 1999 as affected participants or
public interest participants the following are
granted leave to participate in the hearing:
(a)
State Bank Limited and Foxtel Management Pty Ltd
as affected participants;
(b) RAMS Home Loans Pty Limited and the
Australian Hotels Association as affected
participants but limited in their participation
to making written submissions at the conclusion
of the evidence.
(c) Communications Law Centre and the Media
Entertainment and Arts Alliance have leave to
participate as public interest participants by
making submissions at the conclusion of the
evidence.
2.
Direct that if any person seeks that an order be
made pursuant to section 189 of the Broadcasting
Services Act in respect of any document or part
thereof referred to in the index to the bundle of
evidence to be adduced by the Authority ('the
Tender Bundle'), then that person is to serve on
the General Counsel of the Authority on or before
10.00 am on 18 October 1999 any submissions and
evidence in support of such an order dealing
specifically with the following matters:
(a)
documents or part thereof in relation to which an
order is sought;
(b) the terms of any proposed order;
(c) an outline of the basis upon which such an
order should be made; and
(d) the harm that the person considers it would
sustain if the document or part thereof was made
public.
3.
Direct that the General Counsel to the Authority
forthwith notify persons who have provided
documents referred to in the Tender Bundle but
are not participants in the hearing of their
right to make an application under direction 2.
4.
Direct that any person summonsed to appear at the
hearing may provide a statement of evidence as
soon as reasonably possible, and copies of any
such statement be made available forthwith to
relevant affected participants.
5.
Direct that the hearing commence on 19 October
1999 at 10:00 a.m.
6.
Direct that any participant who wishes to raise
any issue concerning the conduct of the hearing
should give notice in writing and an outline of
propositions by 4:00 p.m. on 15 October 1999 and
direct that the issues so raised be dealt with on
19 October 1999.
7.
Direct that on 19 October 1999 at 10:00 a.m. the
Authority will deal with questions arising under
directions 2 and 6 and direct that Counsel
assisting address the Authority with an opening
on 20 October 1999.
Witnesses
The
ABA has provided the following persons with a
notice to appear before the ABA to give evidence
in relation to the subject matter of the 2UE
hearing:
John
Laws
Alan Jones
John Conde - 2UE
Tony Moltzen - 2UE
Ann Wild - Registered Clubs Association of NSW
Tom Mockridge - FOXTEL
Gary Williams - NRMA
Colin Bold - Colonial State Bank
Neil Gamble - Star City
Tony Aveling - Australian Bankers Association
Chris Stewart - Australian Bankers Association
Mike Edmonds - Australian Trucking Association
Bernard Shirley - Qantas
Max Suich - Cable and Wireless Optus
Preliminary
indications from counsel assisting the ABA
indicate that the witnesses are likely to be
called in the following order:
1.
witnesses from the advertisers
2. John Laws
3. Alan Jones
4. 2UE witnesses
Within
the witnesses from the advertisers it is proposed
to call the witnesses from the Australian Bankers
Association first and then other witnesses in an
order yet to be determined.
COMMERCIAL
RADIO INQUIRY
MEDIA
RULES FOR PUBLIC HEARING
Television
and radio
- Television
cameras will be permitted in the hearing
room to obtain establishment shots from
9.50 - 10.10 a.m. on Wednesday 20
October, and must leave the floor
immediately afterwards. The ABA has
reserved its decision on whether
television cameras and radio audio
recording equipment will be allowed to
film and record closing addresses.
- No
television cameras or radio audio
recording equipment will be permitted on
the 10th floor of 80 William St at any
other time during the hearing.
Transcripts
- Transcripts
will be available to members of the media
by 6.00 p.m. on same day on payment of a
fee yet to be determined and payable in
advance. Otherwise transcripts will be
available on the ABA web site and in the
media room during the morning of the
following day.
Still
photographers
- Still
photographers will only be permitted in
the hearing room for 5 minutes each day
before start of proceedings. No cameras
permitted on the 10th floor of 80 William
St at any other time during the hearing.
Journalists
and artists
- The
ABA will use an accreditation scheme for
journalists who wish to cover the
hearing. Journalists who wish cover the
hearing should inform the ABA in writing
by 5 pm on Friday 15 October to
ensure a seat. The ABA's fax number is
(02) 9334 7799. Accredited journalists
and artists will be permitted in the
hearing room at all times, except as
directed by the ABA panel. An area will
be reserved for journalists and artists.
Journalists will be permitted to bring
hand-held recording devices into the
hearing room, but these are not to be
placed on the bar table or elsewhere in
the hearing room. Mobile phones must be
turned off in the hearing room.
Suppression
of testimony
- The
ABA panel may direct that a document,
part of a document or portion of a
testimony be suppressed.
Media
room
- A
media room will be available on the 10th
floor of 80 William Street. No phones
will be provided. Journalists will be
expected to bring own mobile phones.
Transcripts in hard copy form will be
made available in media room during the
morning of the following day.
Closed
circuit television
- To
reduce the amount of traffic in and out
of the hearing room, the ABA is
considering the possibility of a single
camera closed circuit television system
in the hearing room providing a video and
audio feed to monitors, one placed in the
public area outside the court room and
another in the media room. The ABA may
make a video recording from this system
strictly for its own purposes.
Extract
from transcript of hearing re: televising of
proceedings
THE
CHAIRMAN: At the last hearing I advised the
parties that the Authority had received requests
for televising proceedings. I invited
submissions. It was argued that it was in the
public interest that the public have access to
these proceedings - indeed we hold the
proceedings in public. At the same time, the
Authority is aware that the public interest also
requires the Authority to be fair to those
involved. Most submissions in the first round
were opposed to the televising of the
proceedings, particularly testimony by witnesses.
I think the reasons given were the potential for
intimidation, what I would call inducement to
Thespianism, the control of confidential and
irrelevant material, and the need for reporting
to be fair and balanced. Frankly, I doubt that
discreetly placed cameras have an intimidating
affect on witnesses, particularly in an age where
video recording is commonplace. And it seemed
that if we allowed for an appropriate delay and
arranged for adequate control to ensure that
confidential and irrelevant material did not
escape, that would be sufficient. As to
Thespianism, I would have thought that the
combined effect of the Bar and the presiding
member would be sufficient to curb any excesses.
The problem, as I saw it, was really that the
reporting be fair and balanced. An unguarded
moment or an ambiguous admission is often
balanced in a hearing on further examination. The
panel and the members of the public who are
present during proceedings have that opportunity
to hear balanced testimony. The difficulty the
Authority found was that the broadcasts of short
extracts which might be deemed newsworthy without
context and without any balancing testimony could
be potentially unfair to witnesses, at times
extremely unfair and prejudicial. Had there been
a wish, say, on cable, to broadcast a delayed,
uninterrupted and continuous transmission with a
proscription against the re-broadcast of
extracts, there would have been, I think, scope
for the development of a fair analogy with the
public access which we already allow in the court
room. It is not feasible for the panel to clear
extracts of testimony because this would
necessarily involve consultation with the parties
and with counsel which would soon develop into a
parallel hearing. Apart from establishment shots
of the opening of the hearing, the only
outstanding matter is about the televising of the
opening and closing addresses.
...
In
the light of what has been put to me, and the
danger of that prejudice of that sort of material
being broadcast, it seems proper that I should
direct that the opening address - and I
understand there will only be one - not be
broadcast, but I propose to leave open the
question of televising the closing addresses.
TERMS
OF REFERENCE FOR THE HEARING BY THE ABA UNDER
DIVISION 3 OF
PART 13 OF THE BROADCASTING SERVICES ACT 1992
WHEREAS
the Broadcasting Services Act 1992 (the
Act):
- includes
within its objects
- to
encourage providers of commercial
broadcasting services to be responsive to
the need for fair and accurate coverage
of matters of public interest; and
- to
encourage providers of broadcasting
services to respect community standards
in the provision of program material;
- charges
the Australian Broadcasting Authority
with the responsibility for monitoring
the broadcasting industry; and
- confers
on the Australian Broadcasting Authority
a range of functions and powers that are
to be used by the Australian Broadcasting
Authority in a manner that, in its
opinion, will produce regulatory
arrangements that are stable and
predictable and deal effectively with
breaches of the rules established by the
Act;
AND
WHEREAS:
- Radio
2UE Sydney Pty Ltd ('the licensee') holds
a commercial radio broadcasting licence
granted under the Act last renewed on 23
August 1996;
- John
Laws and Alan Jones are presenters on
Radio 2UE;
- on
20 July 1999 the Australian Broadcasting
Authority commenced an Investigation
under Division 2 of Part 13 of the Act
into matters relating to agreements,
arrangements or understandings entered
into by or on behalf of the licensee,
John Laws or any other presenter on Radio
2UE; and
- on
6 August 1999 the Australian Broadcasting
Authority widened the terms of the
investigation to include matters relating
to agreements with certain presenters on
Radio 6PR Perth and Radio 5AD and 5DN
Adelaide;
TAKE
NOTICE that for the purposes of the performance
of its functions:
- to
suspend and cancel licences and to take
other enforcement action under the Act;
- to
collect fees payable in respect of
licences;
- to
monitor compliance with codes of
practice;
- to
develop program standards relating to
broadcasting in Australia; and
- to
monitor, and report to the Minister on,
the operation of the Act;
the
Australian Broadcasting Authority will conduct a
Hearing under Division 3 of Part 13 of the Act
for the purpose of making findings in relation to
the following matters:
John
Laws
- What
were the circumstances in which
agreements (including contracts,
arrangements or understandings) were made
between John Laws (and/or persons or
corporations acting for him or related to
him) and the following corporations or
associations (and/or persons or
corporations acting for them or related
to them):
- Australian
Bankers' Association;
- Australian
Record Industry Association Ltd;
- Australian
Trucking Association;
- Cable
and Wireless Optus Limited;
- Foxtel
Management Pty Limited;
- NRMA
Ltd;
- Qantas
Airways Limited;
- RAMS
Home Loans Pty Ltd;
- Registered
Clubs Association of New South Wales;
- Sony
Music Entertainment (Australia) Limited;
- Star
City Limited;
('the
Laws agreements')?
- What
were the full terms of the Laws
agreements?
- What
was the extent of the licensee's
knowledge of the Laws agreements and the
implementation of the Laws agreements?
- What
was the effect of any conduct of John
Laws in giving effect to the Laws
agreements on the content of programs
broadcast by the licensee in the period
between 5 October 1992 and 20 July 1999?
- Has
any conduct of John Laws in giving effect
to the Laws agreements led to any failure
by the licensee to comply with the
standard of conduct required by
Commercial Radio Code of Practice Code 2
'News and current affairs programs'?
- Has
any conduct of John Laws in giving effect
to the Laws agreements led to any failure
by the licensee to comply with the
standard of conduct required by
Commercial Radio Code of Practice Code 3
'Advertising'?
- (a)
Has any conduct of John Laws in giving
effect to the Laws agreements led to any
failure by the licensee to comply with
the requirements of clause 4 of Schedule
2 to the Act through the broadcasting by
the licensee of "political matter at
the request of another person"
without the licensee:
a.broadcasting
the particulars required under subclause
4(2); and
b. keeping the records required under
subclause 4(3)?
- What
consideration was paid to:
- John
Laws (or persons or corporations
associated with him) pursuant to the Laws
agreements;
- the
licensee pursuant to the Laws agreements?
Alan
Jones
- What
were the circumstances in which
agreements (including contracts,
arrangements or understandings) were made
between Alan Jones (and/or persons or
corporations acting for him or related to
him) and the following corporations or
associations (and/or persons or
corporations acting for them or related
to them):
- Cable
and Wireless Optus Limited;
- Colonial
State Bank;
- Qantas
Airways Limited;
- Sony
Music Entertainment (Australia) Limited;
- Warner
Music Australia Pty Ltd.
('the
Jones agreements')?
- What
were the full terms of the Jones
agreements?
- What
was the extent of the licensee's
knowledge of the Jones agreements and the
implementation of the Jones agreements?
- What
was the effect of any conduct of Alan
Jones in giving effect to the Jones
agreements on the content of programs
broadcast by the licensee in the period
between 5 October 1992 and 20 July 1999?
- Has
any conduct of Alan Jones in giving
effect to the Jones agreements led to any
failure by the licensee to comply with
the standard of conduct required by
Commercial Radio Code of Practice Code 2
'News and current affairs programs'?
- Has
any conduct of Alan Jones in giving
effect to the Jones agreements led to any
failure by the licensee to comply with
the standard of conduct required by
Commercial Radio Code of Practice Code 3
'Advertising'?
(a)
Has any conduct of Alan Jones in giving
effect to the Jones agreements led to any
failure by the licensee to comply with
the requirements of clause 4 of Schedule
2 to the Act through the broadcasting by
the licensee of "political matter at
the request of another person"
without the licensee:
(b)
broadcasting the particulars required
under subclause 4(2); and(b) keeping the
records required under subclause 4(3)?
- What
consideration was paid to:
- Alan
Jones (or persons or corporations
associated with him) pursuant to the
Jones agreements;
- the
licensee pursuant to the Jones
agreements?
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