KIIS FM and the underwhelming undertaking

Reports in the last few days about Kyle Sandilands’ action against KIIS FM were of great interest to media watchers. And they were perhaps alarming for ACMA, the media regulator.

Citing documents filed in the Federal Court, The Australian reported Sandilands’ claim that he “generally performed the role of the dominant and abrasive personality who was deliberately outrageous and often offensive”. The newspaper noted that, under the terms of the deal, “the network took full responsibility for everything Sandilands said over the airwaves”. Meanwhile, news.com.au reported Sandilands saying that he had never been warned by the network, ARN, about his conduct towards co-host, Jacqueline Henderson aka Jackie O.

All this is topical for reasons that go beyond the spoils of a record-breaking contract to present The Kyle and Jackie O Show. As we’ve discussed in a previous newsletter, KIIS has been on the hook since October for repeated breaches of the decency rule in the Commercial Radio Code of Practice. Last week, ACMA announced it has imposed a sweeping licence condition that requires compliance with the code and prohibits the radio station from broadcasting in this program – or any others involving Sandilands or Henderson – “content which is highly offensive or which contains strong and explicit Sexual References [a defined term] by the standards of an ordinary reasonable listener”.  

Distinguishing the role of the presenter from that of the radio station is important here because broadcasting regulation does not target presenters: it imposes obligations on radio stations (i.e., the companies that hold the broadcasting licences) which then use contractual arrangements to get presenters to act in a way that complies with broadcasting rules. Just as it was for John Laws and 2UE in the disclosure of commercial agreements, so it is with Sandilands, Henderson, and ARN. Except, of course, that 2UE ended up paying a civil penalty of $360,000 for its failure to restrain its presenter, whereas ARN may well escape all enforcement obligations. Why the difference? The Laws program breached a program standard developed by ACMA, whereas The Kyle and Jackie O Show breached a rule in the code of practice. That rule says program content must not offend against “generally accepted standards of decency”. 

As I noted in October, there’s not much ACMA can do about a breach of a code rule: it can impose an additional licence condition, as it has done now, or it can accept an enforceable undertaking, if one is offered by the licensee. The pointy end of the enforcement pyramid, where civil penalties are imposed by the Federal Court, can be reached if a licensee breaches an enforceable undertaking. But an extra step is required for breach of an additional licence condition – ACMA must have issued a remedial direction in response to a breach of a licence condition which was itself imposed in response to a breach of the code of practice, with the remedial direction being contravened in a third set of breaches.

All of this might explain why, back in 2023, after KIIS FM breached the decency rule for content broadcast in The Kyle and Jackie O Show in 2021, ACMA accepted an enforceable undertaking instead of imposing an additional licence condition. It’s easy to apply hindsight, but that decision isn’t looking so good now. The enforceable undertaking only required KIIS to implement various compliance and reporting measures, not to comply with the decency rule itself. As KIIS employed a second back-up censor, conducted code training and implemented other compliance measures – though in practice, all failed to prevent further breaches of the code – there was no breach of the undertaking.

This could tell us something about the nature of these undertakings – at least as ACMA has used them. Do they bring about sustained behavioural change in high-risk environments? ACMA’s enforcement guidelines for the BSA explain that it takes “a risk-based approach to compliance and enforcement”, and that one of the discretionary factors it must consider when accepting an undertaking is whether “the terms of the undertaking will achieve an effective outcome for those who may have been disadvantaged by the misconduct (if any)”. Looking back, it seems that the risks of further breaches were high, and a compliance program alone was unlikely to serve community expectations around broadcasting standards. Could the undertaking not have included a requirement to comply with the code? And if ARN was not willing to offer such an undertaking, was it reasonable for ACMA to accept it? 

There’s also another pathway which could have led ACMA to the Federal Court for a civil penalty order right now. It could all have been different had ACMA imposed a licence condition back in 2020 when the same program was responsible for breaches of the same code rule by the same licensee. ACMA appears to have given the licensee a break because the program had just moved from Today FM to KIIS FM. But the risks must have been apparent event then. If a licence condition had been used at that point, a remedial direction could then have been issued in response to the 2023 breaches and a civil penalty sought for the 2024 breaches.

As it happens, we’re left with the great irony that this litany of investigations and enforcement actions could all be pointless with the departure from KIIS FM of The Kyle and Jackie Show. Let’s at least take away from it a recognition of the need to rethink the range of tools we give the regulator and the ways in which they can be effectively deployed. 

REFERENCES

Article in The Australian: https://www.theaustralian.com.au/business/media/full-details-of-kyle-sandilands-100m-deal-with-arn-laid-bare-as-explosive-legal-battle-erupts/news-story/6050c17142c3fe2dbab5080af9fc9a9a  

News.com.au article: https://www.news.com.au/entertainment/celebrity-life/no-warnings-why-kyle-sandilands-was-so-shocked-by-arn-terminating-his-contract/news-story/24e31cfdf42476e1a01cd6d9a5b91bf5  

Previous CMT newsletter article: https://www.uts.edu.au/news/2025/10/Everybody_is_cross_about_KIIS  

ACMA announcement about licence condition: https://www.acma.gov.au/articles/2026-03/new-broadcasting-rules-kyle-jackie-o-show-licensees  

ACMA enforcement guidelines: https://www.legislation.gov.au/F2021L01123/latest/text