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Australia: ACMA’s Broad Powers to Hold Media Accountable Confirmed by High Court

By Judith Miller and Matthew Evans

The High Court last week confirmed that the Australian Communications and Media Authority (ACMA) has the power to make administrative findings that a person has committed a criminal offence, for the purpose of determining whether a commercial broadcaster has breached a licence condition.

The case stems from the infamous 2Day FM ‘prank’ in which two staff rang the London hospital where the Duchess of Cambridge was residing. The two impersonated Prince Charles and the Queen to obtain information about the Duchess’ medical condition. The pair recorded this conversation without consent of the hospital staff.

This prompted ACMA to declare 2Day FM had breached the Surveillance Device Act NSW which prohibits such conduct. In doing so, 2Day FM also breached a condition of the Broadcasting Services Act which states that a broadcasting service shall not be used in the commission of an offence.

2Day FM resisted the declaration by taking ACMA to court arguing that a Court is required to find the guilt of 2Day FM before ACMA can determine it has committed an offence.

After a series of appeals, the High Court decided unanimously in ACMA’s favour, holding that the administrative body can conclude that the rules it governs have been breached by a criminal act. Any other approach would confine ACMA’s powers in a way contrary to the Broadcasting Services Act. The High Court distinguished between a finding of guilt by a court and ACMA coming to a decision that an offence had been committed, as the latter does not decide guilt or innocence.

The decision means that ACMA is not constrained by the criminal standard of proof or the laws of evidence in determining whether a regulated entity has committed an offence. This has far reaching ramifications as now ACMA is more likely to be able to deal with what was previously a complex and time consuming type of case in a quick and inexpensive manner. Expect to see more of these kind of enforcement actions by ACMA in the future.

Permanent link to this article: https://blogs.dlapiper.com/mediaandsport/2015/03/australia-acmas-broad-powers-to-hold-media-accountable-confirmed-by-high-court/