High Court unanimously allows ACMA appeal | ACMA

High Court unanimously allows ACMA appeal

The High Court of Australia today handed down its judgment in favour of the Australian Communications and Media Authority (ACMA) in the matter of Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (Today FM).

This unanimous decision of the High Court means that the ACMA was empowered to make a finding that Today FM breached a condition of its licence by recording and subsequently broadcasting a prank telephone call to King Edward VII’s Hospital in London in December 2012.

‘This decision is welcomed by the ACMA,’ said ACMA Chairman, Chris Chapman.

‘It obviously provides clarity regarding the operation of the licence condition that prohibits broadcasters from using their broadcasting service in the commission of an offence.’

The High Court’s judgment noted that: ‘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 held that the ACMA does have power to make an administrative determination that a licensee has committed a criminal offence as a preliminary to taking enforcement action under the Broadcasting Services Act 1992, notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. The Court so held because, in making such a determination, the Authority is not adjudging and punishing criminal guilt.

The ACMA will now move to publish its investigation report into the matter and will consider what sanctions may be appropriate.

Enforcement options for a breach of a licence condition may include cancellation or suspension of a broadcasting licence, imposing additional licence conditions, issuing remedial directions or accepting enforceable undertakings.

For more information please see the Backgrounder below or contact: Emma Rossi, Media Manager, (02) 9334 7719 and 0434 652 063 or media@acma.gov.au.


Backgrounder

Investigation 2928

Investigation 2928 relates to a broadcast of the Summer 30 program on 4 December 2012 by Today FM (Sydney) Pty Ltd (Today FM) which included a prank telephone call made by the program’s presenters involving nurses at King Edward VII Hospital in London.

The ACMA exercised its powers under section 170 of the Broadcasting Services Act 1992 (the Act) to commence an 'own motion' investigation into the incident.

The investigation focused on the compliance of the licensee, Today FM, with the conditions of its licence and the Commercial Radio Codes of Practice 2011.

The ACMA's regulatory relationship is with the regulated entity (that is, the licensee) and not with its on-air presenters.

The ACMA’s investigation considered (among other matters) whether, in broadcasting the prank telephone call, Today FM breached the condition of its licence which requires it not to use its broadcasting service in the commission of an offence against another Act or a law of a State or Territory (clause 8(1)(g) of Schedule 2 to the Act). In particular, the ACMA considered whether Today FM contravened subsection 11(1) of the Surveillance Devices Act 2007 (NSW).

The investigation has been the subject of ongoing legal challenge between the ACMA and Today FM. The dates and challenges are noted below:

  • 18 June 2013, the licensee applied to the Federal Court for orders restraining the ACMA from making any findings in respect of the licence condition.
  • 7 November 2013, the Federal Court found that, for the purposes of the licence condition prohibiting broadcasters from using their broadcasting service in the commission of an offence, the ACMA has the power to form an opinion on whether an offence has been committed independently of any conviction for a criminal offence
  • 19 November 2013, the licensee appealed the Federal Court decision to the Full Federal Court
  • 14 March 2014, the Full Federal Court found that the ACMA does not have the power to form an opinion as to whether a licensee has breached the licence condition at paragraph 8(1)(g) of Schedule 2 to the Act, unless and until criminal guilt has first been determined by a court
  • 11 April 2014, the ACMA filed an application for special leave to appeal the decision of the Full Federal Court to the High Court. Special leave to appeal was granted on 15 August 2014 and the matter was heard by the High Court of Australia on 11 November 2014
  • 4 March 2015, the High Court of Australia handed down its judgment, in favour of the ACMA

The regulatory framework for broadcasting content regulation

Under the Act, Australian radio and television licensees have primary responsibility for ensuring that the material they broadcast reflects community standards. Many aspects of program content are governed by codes of practice developed by industry groups representing the various Australian broadcasting sectors. The ACMA registers codes (other than those of the national broadcasters, the ABC and SBS) once it is satisfied that broadcasters have undertaken public consultation and the codes contain appropriate community safeguards.

ACMA investigations

The ACMA:

  • may investigate complaints about compliance with licence conditions (sections 147 and 149 of the Act)
  • may investigate complaints about compliance with code obligations, where the complainant has complained to the licensee and is dissatisfied with its response (sections 148 and 149 of the Act)
  • must investigate such matters as it is directed so to do by the Minister for Communications (section 171 of the Act)
  • may commence an 'own motion' investigation into any matters relating to its broadcasting, content and datacasting functions (section 170 of the Act).

Responding to breaches

Parliament has conferred on the ACMA a range of powers intended to enable it to deal with breaches of the rules established by the Act and the various broadcasting codes.

The ACMA's enforcement approach is informed by section 5 of the Act, which requires the ACMA to:

  • produce regulatory arrangements that are stable and predictable
  • deal effectively with breaches of the legislation
  • use its powers in a manner that is commensurate with the seriousness of the breach concerned.

If the ACMA finds a breach of a code of practice it can:

  • agree to accept measures offered by the licensee to improve compliance (which measures can include educating staff or changing procedures to improve compliance with the rule(s))
  • accept an enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s)
  • impose an additional licence condition.

If the ACMA finds a breach of a licence condition set out in the Act it can:

  • agree to accept measures offered by the licensee to improve compliance (which measures can include educating staff or changing procedures to improve compliance with the rule(s))
  • accept an enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s)
  • issue a remedial direction directing a licensee to take action to ensure that the licensee complies with the licence condition or is unlikely to breach that licence condition in the future
  • impose an additional licence condition
  • suspend the licensee's licence for a specified period
  • cancel the licensee's licence
  • pursue a civil penalty in the Federal Court
  • refer the matter to the Director of Public Prosecutions (DPP).

If the ACMA finds a breach of an additional licence condition it can:

  • agree to accept measures offered by the licensee to improve compliance (which measures can include educating staff or changing procedures to improve compliance with the rule(s))
  • accept an enforceable undertaking offered by the licensee for the purpose of securing future compliance with the rule(s)
  • issue a remedial direction directing a licensee to take action to ensure that the licensee complies with the licence condition or is unlikely to breach that licence condition in the future
  • impose an additional licence condition
  • suspend the licensee's licence for a specified period
  • cancel the licensee's licence.

ACMA considerations in conducting an investigation

In conducting investigations into compliance with codes or licence conditions, the ACMA considers the broadcast against:

  • each relevant provision of the code or licence condition
  • information received from the complainant, licensee and/or third parties
  • the context and circumstances existing at the time of the broadcast.

In making its determination, the ACMA will also have regard to:

  • any relevant guidelines
  • other relevant decisions made by the ACMA
  • any relevant court or tribunal decisions
  • any other relevant considerations.

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).

Last updated: 04 March 2015