Rudd is right. Australia's media regulators are toothless. A new regime is needed, but unlikely

Co-regulation of the media in Australia is failing. The Australian Communications and Media Authority, the Australian Press Council and (perhaps) the Ad Standards Board are no longer fit for purpose

Welcome to the third week of Unmade, written on what seems like a breezy, pleasant day at Sisters Beach, Tasmania - not that I’ve had a chance to step outside just yet, and as I prepare to hit publish, sunset now isn’t that far away.

We’re now in week three of Unmade, and we’re up to 980 signups. Please do invite a friend or colleague to join us as we head towards the four figure club, and I begin to think about switching on the paid tier.

There’s no musical writing soundtrack today because I’ve been streaming the Senate inquiry into media diversity all day.

The morning session was frustrating. Over the last fortnight or so I’ve been experimenting with a live transcription app called Otter. Opened up on my iPad next to the speaker on my monitor, it’s not always accurate. Here’s a sample of what it tells me Sky News Australia’s CEO Paul Whittaker had to say this morning: “Users are afforded the opportunity to address concerns or challenge the notification in advance of any boobs.” I’m pretty sure he did not say that.

It didn’t help that the audio from the link to Whittaker was terrible. I’m confident the explanation for the problem was not the one offered by committee chair Sarah Hanson-Young when she asked Whittaker to slow down, telling him: “I’m sure you’re probably a bit nervous.” Whittaker is not the sort of pugnacious News Corp executive who does nervous.

Instead, it’s hard to know whether the problem was one of Australia’s biggest media companies having shit broadband, or Parliament having crappy technology. Or maybe Whittaker’s comms team needs to buy him a cheap podcasting microphone. Whichever way, it was deeply ironic given the subject matter in hand.

However, Otter did transcribed one line quite accurately: “These people are hopeless.”

Unfortunately, Otter was picking up a line I spoke out loud in my office. The committee members wasted their opportunity to better understand the world view of the man responsible for making Sky News Australia the fearsome machine that it is today.

It was a point scoring, politicised process where those from the parties hostile to Sky News Australia, and its owner News Corp, appeared to have done little research, so offered mainly naive or uninformed questions, while Coalition senators played up to Whittaker. We spent several minutes in which a Queensland senator complained to the committee that the contribution to society of the controversial drug Invermectin - best known as a horse worming product - had been unfairly maligned.

Ostensibly the reason for Whittaker being invited to speak was around YouTube’s decision to temporarily ban Sky News from its platform over Covid disinformation. It was content that had first been broadcast on air, before being uploaded to YouTube, yet the Australian Communications Media Authority, ACMA, had let it through unchallenged.

Whittaker’s problem with the decision was the enormous power held by the technology behemoth to decide what people saw and heard. The committee’s issue was why the TV regulator had apparently had no problem with the content before YouTube stepped in.

Last before lunch came former PM Kevin Rudd, who called for the ACMA to be abolished and for a Royal Commission to be held to plan for a replacement regulator.

And it turned out that ACMA, not Sky News, was the main meal of the day.

The Senator Kim Carr who came back afterwards was not the mild politician who’d quizzed Whittaker. Carr must have been eating raw meat for lunch.

As ACMA chair Nerida O’Loughlin began to set out how the regulator handles complaints, Carr and Hanson-Young did not try to hide their astonishment.

Yes, the way that ACMA handles complaints is that it passes them along to the broadcaster, who has 60 days to resolve it, O’Loughlin confirmed. The person who made the complaint needs to get in touch with ACMA a second time, after the 60 days is up, if they are still unhappy. Unsurprisingly, hardly anybody does.

Although the ACMA does have the power to kick off its own investigations, it has not done that for a couple of years, O’Loughlin conceded - not since it examined how Australia’s media handled coverage of the Christchurch mosque attack in 2019.

This is because the ACMA works under a framework of co-regulation, explained O’Loughlin. In other words, the commercial media gets to write and enforce its own rules. The ACMA only steps in a long way down the track.

“What do you do?” an incredulous Carr asked.

O’Loughlin rattled off an impressive sounding list. Those spam emails aren’t going to police themselves. But she was also clear: “We do not have a monitoring role.”

So while, YouTube was able to decide immediately that it was not going to carry life-endangering Covid conspiracy from Sky News, the ACMA would wait 60 days before getting involved, Carr and Hanson-Young clarified. Yup, that was indeed the case, confirmed O’Loughlin.

For an organisation which had a budget of $108m a year with staff costs of $59m, it was unimpressive.

But what can you do, O’Loughlin seemed to argue. The system is the system, and other than the extreme power of taking away licences, which just about never happens, the ACMA has pretty much no powers to punish.

She did not come across as particularly interested in getting any new powers either.

The arrangement is typical for the supine approach the authorities take to media and advertising regulation of all types in Australia.

The ad industry gets to set its own rules and then polices itself. The Australian Association of National Advertisers sets the codes and guidelines, and then the Ad Standards Board enforces them.

In the case of advertising, Ad Standards works quite well. It investigates every eligible complaint, and reasonably quickly too. Complaints that are upheld see the ads taken off the air, so long as they run on mainstream media. Ad Standards works fast and is transparent in publishing its findings.

There’s a small hole in the system for rogue operators like Wicked Campers who control their own media, but mostly the system is enforceable.

But the BIG hole is in the setting of the rules in the first place. For instance, any parent who has seen their kids bombarded with ads normalising gambling during a sporting event would be aware that there is a chasm between what the advertising industry considers acceptable and what the public wants.

And for journalism, self regulation is even more shaky.

The Australian Press Council is funded by the media companies and the majority of its 22 members are from within the media industry. In my days with Mumbrella, we were members in the absence of a better alternative.

The APC also lacks any powers beyond stating afterwards whether a particular piece did or did not breach its standards. The publication faces no sanction beyond having to publish the ruling.

At the weekend, when the APC found The Sunday Telegraph columnist Peter Gleeson had breached the rules by using the offensive term “negroes” in an anti Black Lives Matter column, the newspaper published the finding and that was the end of the matter, for instance.

It’s easy to conclude the media regulation in Australia does not work. And it’s also reasonable to assume that any government would be reluctant to take it on, given the influence the media companies hold over voters.

But it has been tried before.

The Convergence Review, called in late 2010, and the Independent Media Inquiry, called in September 2011, both put forward proposals.

Ray Finkelstein’s Independent Media Inquiry, which reported back first, proposed a new government-funded News Media Council. And Glen Boreham’s Convergence Review proposed much tighter regulation of Australia’s biggest 15 media players including through a cross platform News Standards Body.

But the media, most loudly News Corp, campaigned against the proposals. The Labor government, by then caught up in the internal politics of the last months of the Rudd-Gillard-Rudd leadership failed to get the legislation through before losing power to the Coalition’s Tony Abbott.

Yet for the ambitious communications minister, if there is such a thing, there is an inspiring model to look to.

I was writing about media in the UK when Ofcom, the Office of Communications was launched in 2003. A “super-regulator”, it featured an amalgamation of five different regulators.

It was conceived thanks to the actions of the cerebral Secretary of State for Culture Media and Sport Chris Smith. And in its two leaders, chairman David Currie and chief executive Stephen Carter, it had two highly competent administrators. It was an incredibly large, complex creation, but it worked.

Ofcom skilfully navigated and helped set policy around the rapidly changing media environment and won a reputation for delivering results that were in the public interest rather than political fixes.

There’s been little interest in deep reform from the Coalition media ministers, even after the supine Mitch Fifield handed over to the uninspiring Paul Fletcher. Most debate begins and ends with media ownership rules.

And so far there’s been no evidence of that sort of ambition from Labor’s Michelle Rowland, despite the fact that she’s impressive, and understands her brief.

Politics in Australia and the UK have degraded in the 20 years since Ofcom began. Rudd more than anyone knows how hard making significant change to media regulation would be. Co-regulation has not worked for years. But it’s still worth fighting for.

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Tim Burrowes

Proprietor - Unmade