ASIC toothless tiger

The Australian has today continued to be its own greatest source of news. Following the announcement yesterday that GetUp deputy chair Carla McGrath had been appointed as a public member of the Australian Press Council, the Oz decided not only was it in a strop, but that strop was front-page news — and check the talent they managed to include: The Australian‘s editor-in-chief  Paul Whittaker and a News Corp spokesperson.

 

So, the national broadsheet versus the print media’s regulator. What a fight we must have on our hands. What’s the next move? How will the iron fist of the Australian Press Council punish this brazen insolence? Well, about that …

Normally, breaking rules can be a terrible business, with terrible consequences. But if you’re lucky enough to work in an industry where the local watchdog is all “watch” and no “dog”, well, you can pretty much forget about consequences all together.  

Here are just a few of the least threatening watchdogs across Australian industries:

Australian Press Council

This is not the first time the Oz has unleashed its ire upon the APC. Back in 2014 it undertook a sustained attack on the body and then-chairman Julian Disney. The Press Council handles complaints regarding the print industry in Australia. It has no powers to fine or impose any real penalty on the press, aside from issuing an adjudication, which must be published with “due prominence” by the publication it concerns — as happened in recent cases involving The Daily Mail and Queensland’s The Sunday Mail. So the Press Council can hold your paper or website to account.

I mean, unless you work for The West Australian, who decided they didn’t want to play anymore back in 2012 and withdrew from their APC membership. Yes — for the APC to be able to impose even that meagre punishment, a publication has to decide to be a member. Only publications that opt into Press Council membership (and provide it with funding) are subject to their rules (which, to be fair, the vast majority of publications in Australia, including Crikey, are): the people the Press Council can reprimand are the very people who fill its coffers. Plus, you can, as Fairfax and New Corp both have, just refuse to publish an adjudication.

The APC has undergone some changes in previous years, getting more funding from its members and bringing about specific standards on reporting suicide, domestic violence and and contacting patients. It also changed its rules so members had to give four years’ notice of their intention to leave. Of course, if you can just ignore the decisions they make, why would you bother?

Australian Communications and Media Authority

On the ACMA website is a list of all the investigations and breaches it issues against television and radio broadcasters. These investigations come about when it receives a complaint, whether it’s asserting that reporting is biased, unfair, factually inaccurate, or likely to provoke intense dislike for certain groups, among other issues. Once they’ve investigated and established a breach, they can … well … we’ll let them explain, via the “responding to breaches” section that you will find at the bottom of their every press release regarding a breach:

“Where there has been a breach of a code of practice, the ACMA may:

  • agree to accept measures offered by the broadcaster to improve compliance (these measures can include educating staff or changing procedures to improve compliance with the rule(s))
  • agree to accept an enforceable undertaking offered by the broadcaster for the purpose of securing future compliance with the rule(s)
    impose an additional licence condition.
  • The ACMA cannot “fine” or “prosecute” a broadcaster for breaching a code, or direct it to do any particular thing (such as broadcast a report of the ACMA’s findings).” (emphasis added)

So, ACMA can agree to accept a broadcasters’ promise that they will do something to put a breach right, or they can be, well, not angry, but definitely disappointed.

It can also impose an additional license condition. This has happened twice — both times because of Kyle Sandilands — and resulted in the sections of the Commercial Radio Codes of Practice 2011 that had been breached becoming the mandatory conditions for a broadcaster (in this instance, 2DAY FM) holding on to its license. ACMA can revoke a broadcasters license in very serious cases, but so far it never has.

Fair Work Commission (and workplace regulators in general)

As former prosecutor Commonwealth Director of Public Prosecutions noted Robert Corr noted in Crikey on Wednesday, the Fair Work Ombudsman’s reliance on “enforceable undertakings” rather than prosecution means employers can get away with flagrant and persistent wage theft and never face criminal charges. This is also true for the shrinking number of employers covered by the state government — during my own time with the Department of Commerce in WA, inspectors (who investigated underpayments) would talk darkly of the employers who had “underpayment funds”  — using the money they saved underpaying their entire workforce to quickly and quietly pay anyone who came forward with a claim to avoid any further scrutiny. They were never taken to court.

But this extends to more areas of the workplace than just pay. For example, bullying — if you can prove that you’re being bullied (very difficult in itself) and that there is a risk it will continue, the most the Fair Work Commission (the tribunal to FWO’s investigator) can do is issue a “stop bullying” order. They can’t award damages, nor impose fines. And if an employee has been fired, or left the business, then the risk of ongoing bullying is considered finished, and the commission can’t even make an order. Businesses can be fined by the workplace safety regulators for bullying issues (in really serious cases, usually when the bullying leads to death, this can attract big fines) but an individual employee can’t bring a complaint, the regulator has to decide to investigate.

Further, the state-based regulators who enforce employment of children laws have surprisingly meagre ammunition when tackling child exploitation in the work place — in most states, breaches of child employment laws result in fines between $7500 and $12,900. In WA, it’s much higher (up to $120,000) but in practice, the fines are mostly modest: KFC was found to have breached this legislation in over 150 separate instances back in 2012. It was fined $30,000.

Australian Securities and Investments Commission

ASIC has long been derided as the ultimate “toothless tiger”. In 2014 they were the subject of a scathing Senate inquiry report that grew out of the scandal around a group of Commonwealth Bank financial advisers who were found to have given inappropriate advice to (and thus ruined) many of their customers. At the time, the committee found ASIC was “too slow to act, lacks transparency and is too trusting of the big end of town”. A media release accompanying the report concluded: “This inquiry has been a wake-up call for ASIC. The committee looks forward to seeing how ASIC changes as a result.”

Crikey‘s Bernard Keane described a regulator who found regulating “all too hard“. ABC business editor Ian Verrender went a step further: “even describing ASIC as a regulator is stretching things. The truth is, it hasn’t regulated anything for years.” He concluded that ASIC should be scrapped and replaced by a “real regulator”. 

There were repeated calls for a Royal Commission into the banking sector at this time, but this hasn’t occurred — who needs it, the government has argued, when we have ASIC?