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
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
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
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