The High Court of Australia has found that the Australian Communications and Media Authority (ACMA) has the power to decide if a broadcaster has committed a criminal offence and therefore breach its licence conditions.
The ruling is the latest legal development following the Southern Cross Austereo's (SCA) 2Day FM station's “royal prank call” to the London hospital where the Duchess of Cambridge was being treated for morning sickness in 2012.
In its ruling the High Court found: “It is the authority's function to monitor and regulate broadcasting services throughout Australia. There is no incongruity in empowering the authority to take administrative enforcement action against a licensee who uses the broadcasting service in the commission of an offence, whether the offence is against commonwealth, state or territory law.”
The High Court also noted that: “In determining that a licensee has breached the... licence condition, as a preliminary to taking enforcement action, the authority is not adjudging and punishing criminal guilt...”
It went on to find that “the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven.”
In response SCA head of marketing and communication Nikki Clarkson released a statement calling the ruling “a serious defect in Australian broadcasting law”.
“It is wrong for the broadcasting regulator to be able to itself decide whether a commercial television or radio broadcaster is guilty of committing an offence against any Australian state, territory or commonwealth law including laws where the ACMA has no expertise, experience or jurisdiction,” Clarkson said.
“SCA will join with other broadcasters in seeking to have the law changed as a matter of urgency.”
Clarkson also said that the NSW State Police and the Australian Federal Police concluded their investigations into the prank call late last week finding it did not breach the NSW Surveillance Devices Act, the Commonwealth Telecommunications Interception Act or any other law.
Radio industry body Commercial Radio Australia (CRA) has spoken out against the decision saying it has “ramifications for the entire broadcast industry”.
CRA CEO Joan Warner said: “The High Court decision delivered today is concerning for all broadcasters, not just radio. It means that the ACMA can act as police, judge and jury.
“The industry will be studying the ruling and determining what this now means for all broadcasters across the country, and whether any legislative change may be required.”
Free TV Australia also released a statement saying it “highlights a serious flaw in the law”.
“The ACMA can act as policeman, judge and jury, despite the fact that it is not set up to determine criminal law matters,” the statement said.
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