2DayFM back in court claiming ACMA acted as ‘accuser and fact finder’ in royal prank call case

2day fm sydney

The ongoing legal battle between 2DayFM and the Australian Communications and Media Authority (ACMA) returned to the Federal Court today with the radio station arguing a  preliminary or final report on the ‘Royal Prank’ call incident by the watchdog should not be allowed to be released as it oversteps its bounds.

In front of a full bench of Federal Court 2DayFM’s counsel Noel Huntley SC argued the ACMA was acting “as both the accuser and the fact finder” and not subject to same standards of evidence as a judicial court.

The case relates to the death of nurse Jacintha Saldanha, who took her own life in December 2012 after she had put through a prank call by hosts Mel Greig and Michael ‘MC’ Christian, who were impersonating Prince Charles and The Queen, to the ward where the then pregnant Duchess of Cambridge was being treated for acute morning sickness.

It is understood both the preliminary report and now the final report, which the court heard has been finalised since the November ruling, finds that 2DayFM had breached the NSW Surveillance Devices Act when it broadcast the prank call in December of 2012.

This is the second time 2DayFM and its parent company Southern Cross Austereo (SCA) has been in court over this matterwith the company appealing a November decision by Justice Richard Edmonds who had dismissed arguments the preliminary report had the potential to prejudice future criminal proceedings.

The broadcaster also challenged the powers of a statutory authority the ACMA to have oversight over a criminal matter.

royal pranksters

2DayFM today argued ACMA was acting beyond its statutory powers and that its finding might impact unfairly any future proceedings in the criminal courts.

“To say that this matter goes to fundamental matters of legality goes without saying,” Huntley told the full bench of the court.

“Our rights are affected by an administrative decision which we cannot challenge.

“This case has the potential of exposing my client to the serious disgrace of a criminal finding… There is also no time limit for bringing prosecution under the (NSW Surveillance Devices) Act.”

While neither the preliminary or final report has been released the court heard that they both find that 2DayFM breached the law, which prohibits broadcasters playing secretly-taped conversations, by broadcasting a prank call.

Neil Williams SC, acting on behalf of the ACMA, told the court the regulator was acting within its powers and that they were obliged to make determinations where a licensee, in the view of the authority, breached the law.

“The ACMA is not an investigatory body it is a regulatory body — that is critical”, said Williams.

“The ACMA is a statutory body and might not be subject to the (criminal) rules of evidence… conviction by a criminal court in one, two or three years would say nothing to the power of ACMA conferred on it by the Parliament.”

Williams also noted that if employees had committed criminal offences during their employment then the employer as licensee was also liable, and therefore ACMA had oversight.

“Even if it was done by the staff of a broadcaster it would be the licensee who would be committing the offence,”said Williams.

The court has adjourned with a decision expected by the end of next week.

Nic Christensen


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