Once upon a royal baby, there was a little known tale about two radio presenters who placed one quick phone call to a hospital in England, and asked a few questions about one of the hospital’s pregnant patients. Who would have thought such a thing would create such a fuss?
You might recall that following the ‘royal phone prank scandal’, the Australian Communications and Media Authority (ACMA) launched an investigation into Today FM, the broadcaster of the phone prank, to see whether it had breached any of its licence conditions. ACMA is responsible for granting and overseeing the licensing of all Australian radio and television broadcasters, as well as punishing any breaches.
One licence condition was that a radio station must not use its broadcasting service in the commission of an offence.
The issue was that Today FM had recorded the conversation between its presenters and the nurses at the hospital where the Duchess of Cambridge was staying. ACMA thought that in recording and broadcasting this private conversation, without the nurses’ consent, Today FM had breached the Surveillance Devices Act 2007 (NSW) – a criminal offence.
Today FM said that in making this finding, ACMA was acting like a court, but without any of the safeguards of the court system. Obviously ACMA couldn’t send anyone to jail, but it did have the power to issue pretty severe punishments, such as cancelling a broadcasting licence.
Cut to several years later and Today FM, ACMA and all their merry men, found themselves before the High Court of Australia, musing over whether ACMA’s finding resulted in an exercise of judicial power (which would be unconstitutional).
The High Court emphatically said no, it didn’t. The scheme allowed ACMA to grant, monitor and take away a licence. In finding that a licence condition had been breached, ACMA was only making an administrative finding in respect of a licence it had granted, and not adjudging criminal guilt. In fact, it would not be incongruous for ACMA to find a condition had been breached, but for a court, if presented with the criminal case, to find that no offence had been committed.
Interestingly, all this happened before ACMA had determined what, if any, sanctions to impose on Today FM for breach of the licence condition. We’ll have to wait and see how the story unfolds...