Reform of the Australian Broadcasting Authority's Enforcement Powers

This report was prepared at the request of the Australian Broadcasting Authority (ABA) to identify ways in which the enforcement powers of the ABA can be strengthened to enable it to deal more effectively with breaches of the Broadcasting Services Act (BSA). The report reviews the existing enforcement powers of the ABA, reviews the enforcement powers of several overseas broadcasting regulators, identifies limits in the existing enforcement powers of the ABA, and proposes several recommendations for enhanced enforcement powers. Section 3 of the report provides an overview of the ABA's current enforcement powers. The penalties for breaches of the BSA comprise a mix of criminal and administrative penalties. The most significant administrative penalties are the power to suspend or cancel a licence and the power to impose a licence condition. Section 3 also provides information in relation to ABA investigations into programming matters. Section 4 of the report discusses in detail problems with the ABA's current enforcement powers. Section 4 also contains an evaluation of the ABA's enforcement powers based upon strategic regulation theory. This theory advocates regulatory compliance as best secured by persuasion, rather than legal enforcement, based upon co-operation between the regulator and regulated entities. According to strategic regulation theory, the threat of punishment should take the form of a set of integrated sanctions which should escalate in severity in response to more serious contraventions of the law. When the existing ABA's enforcement powers are evaluated according to strategic regulation theory, it becomes evident the ABA does not have at its disposal the flexible range of sanctions upon which the theory is based. Section 5 of the report contains a review of the responsibilities and enforcement powers of broadcasting regulators in the USA, the UK, Canada and New Zealand. Section 6 proposes a series of reforms which have as their objective enhancing the enforcement powers of the ABA