The broadcaster behind the notorious 2DAY FM royals prank call says a High Court ruling in favour of the communications watchdog shows there are serious problems with Australian broadcasting laws.
Following an appeal from the Australian Communications and Media Authority, the High Court on Wednesday ruled the authority did have the power to make a finding that radio station 2Day FM breached laws by airing the call without the consent of the other party.
Radio presenters Mel Greig and Michael Christian posed as the Queen and Prince Charles in a telephone call to a London hospital in December 2012, where the Duchess of Cambridge was being treated for severe morning sickness.
Their call was transferred to another nurse who then divulged private information about the duchess, which was then broadcast.
Jacintha Saldhana, the nurse who put the call through to the ward where the Duchess was staying, blamed herself for the controversy and later took her own life.
The unanimous High Court decision paves the way for the radio station to face serious penalties.
In allowing the appeal, the High Court held that ACMA does have "power to make an administrative determination that a licensee has committed a criminal offence" as a preliminary to taking enforcement action, despite no finding by a court exercising criminal jurisdiction that the offence has been proven.
"This is because, in making such a determination, the authority is not adjudging and punishing criminal guilt. The Court also held that, in making a determination, the authority is not exercising judicial power," the judgment said.
ACMA chairman Chris Chapman said the watchdog would now consider what sanctions may be applied.
"(The decision) provides clarity regarding the operation of the licence condition that prohibits broadcasters from using their broadcasting service in the commission of an offence," he said.
But Southern Cross Austereo, which owns 2Day FM, on Wednesday slammed the ruling, saying that allowing ACMA to judge the criminal guilt of broadcasters indicated there was a "serious defect in Australian broadcasting law".
"It is wrong for the broadcasting regulator to be able to itself decide whether a commercial television or radio broadcaster is guilty of committing an offence against any Australian State, Territory or Commonwealth law including laws where the ACMA has no expertise, experience or jurisdiction," SCA said in a statement.
"This is an important issue for the entire commercial broadcasting industry which is why Free TV Australia and Commercial Radio Australia sought to intervene in the case.
"Southern Cross Austereo will join with other broadcasters in seeking to have the law changed as a matter of urgency."
The broadcaster said it was informed by the NSW Police and the Australian Federal Police late last week that investigations had concluded, and that the recording of the prank call by 2Day FM did not breach the NSW Surveillance Devices Act, or any other law.
Subscription media peak body, ASTRA, also expressed concern at the judgment.
"We are very concerned that an administrative body can find a broadcaster has committed an offence without the due process of a criminal prosecution," ASTRA CEO Andrew Maiden said in a statement.
"This constitutes a significant and material expansion of ACMA's role, far outside its expertise as the administrative body that oversees communications regulation."
Mr Maiden said ASTRA did not condone the prank, but supports calls for the government to consider "legislative change to assure broadcasters of due process."
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