Royal phone prank case tests media regulator's limits

By Myriam Robin

November 14, 2014

A case involving 2Day FM and the Australian Communications and Media Authority has the potential to dramatically extend the powers of the broadcast regulator at a time when the government is keen on media deregulation. In response, the commercial broadcast media sector has banded together in support of the station, which has been hammered in the ratings of late.

In December 2012, 2Day FM aired a prank call two of its presenters made to the British hospital where Kate Middleton was being treated during her first pregnancy. The nurse who put the call through later committed suicide, which many blamed on the stress caused by the prank call a few days earlier. ACMA has been investigating the episode, but 2Day FM has tried to halt its investigation of whether or not the station did something illegal in recording and airing the call.

In order to achieve what is termed “natural justice”, broadcasters taken to task by ACMA are allowed to read and respond to its draft findings at several stages of the arbitration process (this is why ACMA decisions take so long to be finalised). In a draft report given to 2Day FM, ACMA revealed it was investigating whether the station had breached the NSW Surveillance Devices Act, which prevents the recording of phone calls and the like without the express knowledge and permission of all involved. This was important to ACMA because part of the licensing conditions for commercial use of the public airwaves is that radio stations will not use those airwaves “in the commission of an offence”.

Presented with this, in June 2013, 2Day FM appealed to the Federal Court for orders to restrain the regulator from continuing its investigation, or from making a finding that 2Day FM committed an illegal act.

The station’s reasoning is simple: for ACMA to find the station had breached the law would constitute an exercise of judicial power which, under the constitution, is a power reserved for the nation’s courts. ACMA counter-argued that it couldn’t enforce the broadcast rules, which prevent stations using the airwaves for illegal acts, if it couldn’t investigate whether such illegal acts had occurred.

“That appeal has drawn in submissions from several branches of the government,as well as from the lobbies for commercial radio and television.”

In March, the Federal Court agreed with 2Day FM. ACMA appealed to the High Court. That appeal has drawn in submissions from several branches of the government, as well as from the lobbies for commercial radio and television. Both sides fear the outcome of the complex case has the potential to gravely impact their operations.

In a submission to the court, Free TV Australia argues, as 2Day FM does, that ACMA does not have the authority or the expertise necessary in making findings of illegality. The commercial TV body gives examples of other government regulatory bodies that are required to pursue allegations of illegal conduct through the courts. For example, the Australian Competition and Consumer Commission is allowed to investigate anti-competitive behaviour, but a conviction requires it to convince a judge of its argument in open court.

Commercial Radio Australia has also weighed in, arguing, in part, that a finding by ACMA of a crime committed in use of the airwaves could “prejudice the fair trial” of those accused (this was an argument made by the Federal Court judges in their earlier decision). CRA represents 258 of the 261 commercial radio stations in Australia, and their interests are likely to be affected by the case, its submission states.

Both CRA and Free TV Australia argue the technical legal point that the Broadcast Services Act does not give ACMA the power to investigate illegal conduct.

But the Attorney-General’s Department has hit back, arguing to the court that ACMA does and should have the power to investigate criminal offences in a manner parallel to the courts, as such power is necessary to it fulfilling its key role of regulating the airwaves. But, the department argues in a submission partly prepared by the Solicitor-General of the Commonwealth, this power is not determinative — that is, it won’t lead to criminal prosecution.

Many government departments need the power to make judgements on criminal conduct in such a manner, the submission continues. For example, a member of the police force needs the power to take a knife off a man who the police believes intends to commit an offence with it. Finding that only the courts can make such a determination on such matters would weaken the legal basis of such a course of action.

The High Court heard final arguments and submissions on Tuesday, and has adjourned to consider its verdict. A final outcome is expected in the coming weeks.

This article was first published at Crikey

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