The ACMA is free to form opinions about 2DAY FM

2Day FM were back in the Federal Court on 7 November 2013 to hear Justice Edmonds dismiss its applications to constrain the ACMA’s investigation into its conduct in relation to the Royal Prank call. 2Day FM asked the Court to rule that the ACMA had no authority to determine that it had used its broadcasting licence to commit a criminal offence.

2DAY FM’s logic was simple enough: until a criminal court determines the guilt or innocence of 2DAY FM the ACMA had no right to do so; the ACMA is not authorised to exercise judicial power.

Justice Edmonds disagreed with 2DAY FM and ruled that ACMA could form an opinion about whether or not 2DAY FM used its licence to commit an offence. He ruled that in doing so the ACMA wasn’t determining questions of criminal guilt and its opinions didn’t bind any prosecuting authority to launch criminal proceedings.

The standard of proof in a criminal trial is beyond reasonable doubt which is a very high standard. The ACMA isn’t required to meet that standard, but instead, the lesser standard of on the balance of probabilities. The AMCA only had to form an opinion that it was more likely than not that 2DAY FM used its licence to commit a criminal offence. That could be done independently of any judicial proceedings and the Judge was not prepared to fetter or dilute the ACMA’s broad regulatory remit.

Other arguments brought by 2DAY FM were also rejected. Justice Edmonds ruled that the ACMA was not exercising judicial power in conducting its investigation which would have breached a constitutional separation of powers. He also finally ruled that the ACMA investigation did not interfere with the administration of justice, mainly, because there were no criminal proceedings underway.

Unless 2DAY FM wins at any appeal, the ACMA is free to form an opinion that 2DAY FM used its licence to commit a criminal offence. The consequences could not be higher stakes. The station’s regulatory history is not a clean slate and a licence suspension could hit 2DAY FM hard with displaced listeners and lost revenue.

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Published by Brett

Brett is an experienced lawyer and business executive who focuses on commercial outcomes. He has worked across three sectors in England & Australia advising and leading initiatives in digital, media and technology

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