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.

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