Legal and Regulatory Systems

With thanks for contributions from Leanne O’Donnell (@mslods / mslods.com),  Virginia Leighton-Jackson and Griffith University media freedom interns

Recent cases

Australian Communication and Media Authority has power to decide whether an offence has been committed

The High Court has rejected a move to render the ACMA toothless – instead ruling that it has the power to ‘come to a view’ as to whether a media organisation has broken the law and breached codes of conduct.

In March Today FM took the ACMA to court after the body ruled that it had breached the NSW Surveillance Devices Act and conditions of its license, after the now notorious ‘Royal prank’, where hosts called a hospital in London where Kate Middleton was recovering from severe morning sickness pretending to be a member of the Royal family in order to gain information – the nurse who took the call later committed suicide.

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 and as a consequence, the station had also breached a condition of its licence which says a licence-holder will not use the broadcasting service in the commission of an offence against Commonwealth, state or territory law – part of the Broadcasting Services Act.

Today FM argued that the ruling “was constitutionally invalid because determining guilt or innocence was exclusively the job of the courts”, a system that the ACMA was not part of.

In its decision, the High Court distinguished the committing of an offence (ACMA’s role) from conviction for an offence (the role of the court system), and ruled that the ACMA could form and 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.

The Court noted:

“…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.”

This decision means that the ACMA has more power to regulate poor behavior by the media without governmental interference or control.

– Virginia Leighton-Jackson

Muller, D., 6.03.2015, “High Court rejects attempt to make media watchdog toothless”, The Conversation, available: http://theconversation.com/high-court-rejects-attempt-to-make-media-watchdog-toothless-38438

Other news

Outgoing Australian Press Council chair Julian Disney levels criticism at media practices. | ABC |  http://ab.co/16gnuaV