Investigation Report No. 2844
File No. / ACMA2012/918Licensee / ARN Communications Pty Ltd
Station / 2UUS (WSFM) Sydney
Type of Service / Commercial radio
Name of Program / NSW Minerals Council advertisement
Date of Broadcast / 27 June 2012
Relevant Legislation / Subclause 4(2) of Schedule 2 to theBroadcasting Services Act 1992
Paragraph 7(1)(j) of Schedule 2 to the Broadcasting Services Act 1992
Date Finalised / 27 July 2012
Decision / No breach of the licence condition set out at paragraph 7(1)(j) of Schedule 2 to the Broadcasting Services Act 1992 (the BSA), which requires compliance with clause 4 of Schedule 2 to the BSA.
The complaint
The complaint is that an advertisement for the Australian mining industry, broadcast on 2UUS on 27 June 2012, was political in nature, but did not carry an approved form of announcement at the end as required by the relevant clause of Schedule 2 to the BSA.
The advertisement
The text of the advertisement was as follows:
This is Ben. And he helps employ everyone in this Baulkham Hills conveyor belt factory. He also employs accountants and environmental experts and all of these Alexandria-based hydraulic engineers.
That’s because Ben is a miner. Which means his hard work is helping to create thousands of jobs for people in Sydney. New South Wales miners. World-class miners.
Music (acoustic guitar) played in the background as these words were spoken.
Assessment
This investigation is based on submissions from the complainant and the licensee and a copy of the broadcast provided to the ACMA by the licensee. Other sources used have been identified where relevant.
Relevant legislation
Schedule 2 to the BSA: Standard conditions
7Conditions of commercial television broadcasting licences
(1)Each commercial television broadcasting licence is subject to the following conditions:
(j)the licensee will comply with the requirements of clauses 3, 3A, 4, 5 and 6.
Given the complaint, the relevant clause is subclause 4(2):
4Identification of certain political matter
(2)If a broadcaster broadcasts political matter at the request of another person, the broadcaster must, immediately afterwards, cause the required particulars in relation to the matter to be announced in a form approved in writing by the ACMA.
Clause 1 provides definitions of ‘person’, ‘political matter’ and ‘required particulars’:
person includes a political party, a corporation and any other association (whether incorporated or unincorporated).
political matter means any political matter, including the policy launch of a political party.
required particulars, in relation to a political matter that is broadcast, means:
(a)if the broadcasting was authorised by a political party:
(i)the name of the political party; and
(ii)the town, city or suburb in which the principal office of the political party is situated; and
(iii)the name of the natural person responsible for giving effect to the authorisation; and
(b)if the broadcasting of the political matter was authorised by a person other than a political party:
(i)the name of the person who authorised the broadcasting of the political matter; and
(ii)the town, city or suburb in which the person lives or, if the person is a corporation or association, in which the principal office of the person is situated; and
(c)the name of every speaker who, either in person or by means of a sound recording device, delivers an address or makes a statement that forms part of that matter.
Complainant’s submission
The complainant submitted that the advertisement was ‘political in nature’ because it ‘promote[d] the “goodness” of the Australian mining industry’ and was not ‘selling jobs, products or services … I believe [the advertisement] should be regarded as political, corporate propaganda (given the recent bad press regarding fracking and Gina Rinehart’s current attempts to take control of Fairfax)’.
Licensee’s submissions
The licensee submitted:
The advertisement in question is on behalf of the NSW Minerals Council Ltd.
… There is absolutely no political message in the commercial – the Council are only advertising the fact that their industry employs a lot of people in NSW and the mining industry in NSW is world class.
The campaign commenced on 21 May this year and this particular commercial has been broadcast from 17 June 2012 (there are seven creative executions in total).
… In our opinion, this is not a political advertisement, the NSW Mineral Council Ltd is a not-for-profit organisation and is an industry body that promotes the whole industry, there is no anti-government or political message in this creative execution.
… We have had no other complaints from listeners regarding the status of this advertisement.
Finding
The licenseecomplied with subclause 4(2) of Part 2 of Schedule 2 to the BSA and therefore did not breach the licence condition at paragraph 7(1)(j) of Schedule 2 to the BSA.
Reasons
It is not in dispute that the material impugned was broadcast without any particulars such as the name and details of the person or party authorising the broadcast (commonly known as the ‘tag’). Nor is it in dispute that the material was broadcast ‘at the request of’ another ‘person’, namely NSW Minerals Council Ltd (NSWMC).
Accordingly, the only issue to be determined is whether the material broadcast was ‘political matter’.
In determining whether material that has been broadcast is political matter, the ACMA has regard to:
- the content of the broadcast;
- the overall presentation of the material including the tone, style, and emphasis;
- the nature and style of any accompanying audio or visual material; and
- the context surrounding the broadcast.
The material was clearly an industry promotion, in line with NSWMC’s objective to ‘ensure the community understands the benefits of a modern, environmentally responsible, minerals industry’.[1]
The broadcast of the material took place in a context which included active political campaigns, on the part of environmental and farming groups, against the expansion of the New South Wales mining industry.[2]
However the material itself did not engage with, or allude to, any specific issue of a political nature raised in these campaigns. Accordingly, on balance, the ACMA has formed the view that the material broadcast did not, in these particular circumstances, constitute ‘political matter’ for purposes of subclause4(2) of Schedule 2 to the BSA.
As such, the licensee did not need to follow the broadcast of the material with the ‘particulars’ required under subclause 4(2) of Schedule 2 to the BSA.
That said, the ACMA notes that the balance was a fine one. Slightly different wording might have made the advertisement ‘political matter’, and a slightly different context might transform into ‘political matter’ an advertisement identical to this one. Given this, licensees may wish to adopt a cautious approach, and ‘tag’ advertisements of this kind.
ACMA Investigation Report 2844 – advertisement broadcast by 2UUS on 27/6/121
[1] accessed 13 July 2012. See Objective 4.
[2] For example, the Nature Conservation Council of NSW, (accessed 13 July 2012) and NSW Farmers Association, (accessed 13 July 2012).