High Court rejects attempt to make media watchdog toothless

Today FM faces enforcement action by ACMA after a long-running legal challenge to the media regulator’s powers ended in defeat for the broadcaster. AAP/Warren Clarke

Media accountability in Australia has taken an important step forward with a cut-through High Court decision on the powers of the broadcasting regulator, the Australian Communications and Media Authority (ACMA).

The case had its origins in a notorious prank played by Sydney commercial radio station Today FM in December 2012. Two of its announcers rang the London hospital where the Duchess of Cambridge was a patient, impersonated the Queen and Prince Charles, and obtained information about the Duchess’s condition. They recorded and then broadcast the telephone conversation without the knowledge or consent of the hospital staff.

In the aftermath, Jacintha Saldanha – one of the two hospital staff members who spoke to the pranksters – took her own life.

ACMA investigated the incident and found that in broadcasting the recording of what was a private conversation, Today FM had breached the NSW Surveillance Devices Act. In consequence, the station had also breached a condition of its licence.

This condition – clause 8 (1) (g) – says a licence-holder will not use the broadcasting service in the commission of an offence against Commonwealth, state or territory law. The clause is part of the Broadcasting Services Act (BSA), which ACMA administers.

Today FM took ACMA to court, arguing two points. First, that ACMA did not have the power to find that there had been a breach of the Surveillance Devices Act until a court of law had determined the radio station’s guilt. Second, that if ACMA did have the power, it was constitutionally invalid because determining guilt or innocence was exclusively the job of the courts.

After an initial hearing in the Federal Court won by ACMA and an appeal to the Full Federal Court won by Today FM, the matter came before the High Court.

Earlier this week, the High Court decided unanimously in ACMA’s favour – with costs against Today FM. The court wasn’t buying Today FM’s first argument for a moment, saying it was wrong as a matter of legal principle to claim that an administrative body such as ACMA could not conclude that its rules had been breached by a criminal act until the criminality had been proved in a criminal court.

The High Court distinguished the committing of an offence from conviction for an offence. It ruled that it was within ACMA’s powers to come to a view about whether an offence had been committed, and to act on that view, because in doing so it was not deciding guilt or innocence. To construe the law so that any action by ACMA was contingent on a court’s arriving at a criminal conviction would confine ACMA’s powers in a way that the Broadcasting Services Act did not support.

In a crucial passage of its judgment, the High Court said:

In determining that a licensee has breached the clause 8 (1) (g) condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with a relevant offence. It may 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. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.

It follows that the provisions of the BSA which empower the Authority to investigate the breach of a licence condition, report on the investigation and take administrative enforcement action do not require, in the case of the clause 8 (1) (g) licence condition, that any such action be deferred until after (if at all) a court exercising criminal jurisdiction has found that the relevant offence is proven.

At this stage, ACMA has not published its report on the matter and has not signalled what enforcement action it might take. There has been some speculation that Today FM might be taken off the air for a couple of hours.

The significance of the High Court ruling lies in its clear assertion of the principle that an administrative authority such as ACMA does not have to jump the very high hurdle of proving criminal guilt in order to do its administrative job. This is even the case where that might entail arriving at a view about a breach of the criminal law on which it can then mete out punishment.

ACMA operates in a highly litigious environment. This can make the running of its media accountability functions very expensive even in a relatively straightforward case like this, where Today FM had clearly misbehaved. That the case ran all the way to the High Court illustrates this point.

Since ACMA has power of commercial life and death over broadcast licensees, the existence of legal protections for broadcasters is necessary. But after the High Court judgment, ACMA is likely to be able to deal more swiftly with this kind of case – and with less risk of incurring large legal bills.