Is ACMA Biased Towards the Left?

Senator ROBERTS: Thank you for appearing again today. On 26 April 2023, you issued a press release about the Sky News program Outsiders for breaches of industry codes. On 20 March 2023, in relation to the ABC, in response to Senator Henderson, you agreed that the ABC breached the codes during their coverage of a community meeting in Alice Springs. You endorsed the ABC Ombudsman’s finding that there were breaches of the code yet published no press release about that, from what we can see. Why does a conservative news service cop a full press release when you conclude they’ve breached the code but when the ABC breaches a code there’s barely a peep from you publicly? 

Ms O’Loughlin: I might need to refer to my colleagues for the details of that circumstance. 

Senator ROBERTS: Sure. 

Ms O’Loughlin: I would have to say that we put out media releases for pretty much every breach that we look at under the Broadcasting Services Act, be it a national or a commercial broadcaster. I can take it on notice. There are certainly circumstances in the last year where we have put out media releases on the ABC. So it is not our practice to discriminate between types of broadcasters. We like to make transparent our decisions about breaches across the board. I might just see whether or not my colleagues have anything to add. 

Ms Chapman: In the instance of the ABC Alice Springs issue, we didn’t undertake a full formal investigation. We fully considered the matter. We looked at the content. We considered the report by the ombudsman at the time. We didn’t find a formal breach in that instance. That was on the basis that the ABC themselves had found a breach. The ABC themselves conceded that there were issues with the broadcast and that there was considerablemedia attention at the time which highlighted the findings that the ABC made. So we didn’t put out a press release because we didn’t make a formal finding. 

Senator ROBERTS: Thank you. 

Ms O’Loughlin: I will add to that. I just found something in my notes. For example, from the investigation we did on the ABC’s Four Corners program called The Big Lie, we did a media release for that on 21 December 2022 because we had found breach findings in that program. 

Senator ROBERTS: Thank you. I accept your answer from before. I refer to your letter, Ms O’Loughlin, to Senator Henderson on 20 March that is file reference BM11801. You mentioned in the second last paragraph the matter conducted by the ABC about the circumstances attaching to this matter, including any changes to its editorial processes. Did the ABC advise of any changes to its editorial processes? 

Ms O’Loughlin: I don’t have the letter in front of me. 

Senator ROBERTS: I’ll read it. 

Ms Chapman: We did seek a response from the ABC, but I think we need to take on notice whether we received a response. 

Senator ROBERTS: I will read the second last paragraph. However, the ACMA has requested that the ABC keep it informed about the outcome of any further internal investigation conducted by the ABC about the circumstances attaching to this matter (including any changes to its editorial processes) and any additional steps that may be taken by the ABC as a result. 

Ms O’Loughlin: Senator, we will take that on notice for you. I don’t have that in my pack. 

Senator ROBERTS: Thank you. What does it do to the trust of a media company when it has obvious bias? 

Ms O’Loughlin: Senator, I don’t think that’s something on which I can express an opinion. I do think in our experiences broadcasters take very seriously their obligations under the various regulatory codes that they are subjected to, which do come to, in most cases, provisions around bias, impartiality and factual accuracy. 

Senator ROBERTS: It would erode trust if it is done often? 

Ms O’Loughlin: That would probably be a matter for the broadcasters to comment on, Senator. 

Senator ROBERTS: Thank you. I will ask some questions here briefly. If they’ve been covered, just tell me so. I’ve checked with Senator Cadell. He hasn’t covered this one. Could you briefly explain the obligation for carriers to allow network switching for Triple Zero calls and why this didn’t happen during the Optus outage? The second part you’ve already discussed at length, so I’m not interested in that. Could you please explain the obligation? 

Ms O’Loughlin: Certainly, Senator. The obligation is usually referred to as the mobile camp-on provisions. That is a globally standardised arrangement. Where emergency call services can’t be delivered by a particular carrier for a particular reason, those networks allow those calls to camp on to their network for them to be delivered to the emergency call service. That’s what— 

Senator ROBERTS: Free automatic switching? 

Ms O’Loughlin: So it’s an automatic transfer of those particular calls going to emergency call services to camp on to another network. If I have that incorrect, my colleague will let me know. 

Senator ROBERTS: She’s got it. Thank you. Are there any fines applicable for carriers failing to allow switching or failing to make switching work for Triple Zero calls? Would Optus be facing that? 

Ms O’Loughlin: I think part of what we’ll be looking at in our investigation is what was the reason, if in fact that was the reason, some emergency calls didn’t get through. As I mentioned earlier, it’s still not very clear. We’re still in information gathering mode about why that didn’t work. I will ask Mr Fenton to go over some of the potential regulatory responses we may have, if we do, in fact, find any breaches. But it is early days. 

Senator ROBERTS: Thank you. 

Mr Fenton: I will clarify again that these are enforcement options available to the ACMA if it does find breaches of the determination in question—the emergency call determination. The ACMA can issue a formal warning. It can issue a remedial direction to take action to comply. It can accept a court enforceable undertaking. There are infringement penalties available currently set at $18,780 per contravention. It is open to the ACMA to apply to the Federal Court for penalties as well. 

Senator ROBERTS: This is an interesting quirk. Does per contravention mean each phone call?  

Mr Fenton: It would depend on the construct of the particular obligation in question. But it can apply to a specific contravention. Once again, it comes back to the actual structure. 

Senator ROBERTS: Yes. I understand. Thank you. Finally, it strikes me that there is the Starlink service, which covers almost everywhere in Australia. It can access the sky, and that’s pretty much everywhere. Would it be a good back-up for text messages and limited voice conversations and emergency calls to fit into that network? 

Ms O’Loughlin: That’s a really interesting question. I think there’s a lot of interest in Starlink and, indeed, other satellite services, such as low earth orbit satellite services, that may be able to provide direct to handset text or, indeed, calls which are now starting to emerge. There is the potential for that to really benefit particularly people in regional or remote areas or areas of Australia that have trouble getting signals. I think the department is commencing to look at that in more depth to see what that potential is. There has been quite a lot of strong interest internationally as well, as you can imagine, from particularly countries who have the same sort of issues we have in trying to get signals into various areas. The United States recently, from my reading, had come to the conclusion that technology was just not quite mature enough at the moment to be a backstop for emergency calls but could be in the future. I think the department is going to be looking at whether that is a potential in the future. We think that’s a really exciting development in the satellite space. 

Senator ROBERTS: Thank you. I must say that I appreciate the direct answers.