2DayFM set to appeal Federal Court ruling on ACMA investigation
Christian and Greig
2DayFM is set to launch a last ditch legal bid to prevent Australia’s media watchdog from completing an investigation into its disastrous Royal prank call.
The Southern Cross Austereo owned radio station has until November 21 to appeal against yesterday’s Federal Court decision which said that the Australian Communications and Media Authority was entitled to rule on whether the law – and therefore the radio station’s licence – had been breached.
A source close to the broadcaster has told Encore that 2DayFM is “almost certain” to appeal to the full bench of Federal Court against the ruling by Justice Richard Edmonds. He dismissed arguments by the station that findings by the ACMA had the potential to prejudice any future criminal proceedings and that it should not be in a position to rule on whether a law – in this case governing the recording of phone calls – had been breached.
Because a condition of the station’s licence is not breaking the law, the ACMA has the right to cancel the station licence or suspend it for up to three months if a breach is found.
Southern Cross Austereo yesterday declined to comment on the speculation instead issuing a carefully worded statement in which it refused to rule out appealing the decision. “We are reviewing the judgement and considering our position. There will be no further comment at this time,” said the statement.
The preliminary report – which triggered 2DayFM’s legal action after it received the draft – is understood to find that the law was breached.
Last year’s prank phone call to a British hospital treating the Duchess of Cambridge, featuring presenters Mel Greig and Michael ‘MC’ Christian, triggered a chain of events which saw the nurse who answered the call take her own life.
Media law expert Mark Pearson said there could be multiple grounds for appeal in the case.
“With a complex administrative law case like this, legal minds can usually find an argument for appeal,” said Profe Pearson, a media law specialist at Griffith University.
In September Bruce McClintock SC, acting on behalf of 2DayFM, told the court that if the ACMA was allowed to publish its finding “there is a serious risk to the consequence of fair justice”.
McClintock previously told the court the ACMA was acting as the policeman, prosecutor, judge, jury, prison warden and parole officer.
The ACMA yesterday welcomed the court’s dismissal of 2DayFM’s action. Chris Chapman, ACMA chairman, said: “It provides clarity over the operation of the licence condition that prohibits broadcasters from using their broadcasting service in the commission of an offence. The Federal Court confirmed that the ACMA has the power to form an opinion as to whether a broadcaster has breached the licence condition, independently of any conviction for a criminal offence.”
Prof Pearson said the case highlights some of the ACMA’s weakness under the current media regulation regime.
“The whole case demonstrates the huge difficulties of the ACMA co-regulatory system. You either have regulation or you don’t and this decision shows that the ACMA’s authority caught up in a mire of administrative law and its hands are tied under the Broadcasting Services Act,” said Pearson.
Nic Christensen
Corporate greed, power and arrogance at its very worst.
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