2DayFM loses bid to stop ACMA investigation into suicide prank call

2day fm sydneyThe Federal Court has this morning ruled in favour of the Australian Communications Authority, paving the way for the media watchdog to conclude its investigation into Sydney radio station 2DayFM over its handling of last year’s disastrous Royal prank phone call.

This morning Justice Richard Edmonds dismissed arguments by 2DayFM that any findings by the media authority in its preliminary report had the potential to do “enormous damage” to the radio station and prejudice any future criminal proceedings.

If, as expected, ACMA rules that Southern Cross Austereo’s 2Day FM breached its licence conditions by breaking the law with the prank call, it has the power to suspend or remove the radio station’s licence.

The ACMA this morning said it was pleased with the decision which means the media watchdog is now free to issue its report on the incident.

michael christian mel greig

Mel Greig and Michael ‘MC’ Christian,

“The ACMA welcomes this decision,” said Chris Chapman, ACMA chairman. “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.”

Meanwhile Southern Cross Austereo has refused to rule out appealing the decision. In a statement issued this afternoon the company said: “We are reviewing the judgement and considering our position. There will be no further comment at this time.”

In his judgment, handed down this morning, Justice Edmonds rejected 2DayFM’s argument that a finding by the media watchdog would be prejudicial, writing: “In circumstances where the court may never come to make that finding – a possibility Today FM acknowledges – that outcome is inconsistent with the function of the section within the broader regulatory framework, providing a mechanism by which the ACMA may bring infringing conduct to an expeditious end or otherwise ensure that its occurrence is not repeated going forward.”

Justice Edmonds also rejected the argument of 2DayFM that the ACMA must wait for a finding of criminal action from the courts before taking action. In his judgement he cited the Broadcasting Services Act 1992 noting: “There is no suggestion on the face of that section (of the BSA act) that a judicial finding of breach is a prerequisite to the ACMA taking action.”

The court also awarded costs against 2DayFM with Justice Edmonds rejecting the argument at the centre of 2DayFM’s case. “Whatever the means, or combination of means, of reasoning employed by the ACMA, and whether the opinion is favourable or adverse to the licensee on the point, it does not amount to the ACMA making a judgement to the licensee’s criminal guilt, still less determining an appropriate punishment for criminal guilt,” wrote Justice Edmonds.

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 taken in by the call take her own life.

In mid September Bruce McClintock SC, acting on behalf of 2DayFM told the court that were the ACMA 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 in delivering a preliminary finding that 2DayFM breached the law in broadcasting the prank call in which hosts Greig and Christian impersonated Prince Charles and The Queen and tricked a nurse on the ward into giving out information about her condition.

In the wake of the media controversy that followed, the nurse who put the call through, Jacintha Saldanha, took her own life.

2DayFM has previously been the subject of two other critical ACMA rulings, both concerning controversial shock jock Kyle Sandilands. Because they did not include a breach of a licence condition, the consequences for the station were less serious.

The ruling concludes a dreadful seven days for Southern Cross Austereo. On Friday, Sandilands and sidekick Jackie Henderson announced they were leaving. On Saturday, rival media company Australian Radio Network said it was in talks to give the duo a berth. And on Monday SCA had a disappointing round of ratings. The company’s share price went through one of the biggest two day falls in its history, losing $130m. And the ASX demanded an explanation for why the company had not announced the departure to the stock exchange.

The court continued a moratorium on the release of the preliminary report for two weeks.

Nic Christensen 


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