Today’s High Court decision that the Australian Communications and Media Authority (ACMA) has the power to determine whether or not a broadcaster has committed a criminal offence and therefore breached its licence condition, highlights a serious flaw in the law.

This decision overturns the previous Full Federal Court decision which held that the Broadcasting Services Act 1992 (BSA) does not allow the ACMA to investigate possible criminal offences if they have not been proved in a criminal court.

(The High Court  ruled the regulator has the authority to find broadcaster TodayFM committed a criminal act with its prank call to the hospital ward of a pregnant Duchess of Cambridge).

Free TV Australia says the decision means the the ACMA, an administrative body, can form opinions about the criminal liability of broadcasters based on the civil standard of proof, ‘the balance of probabilities’, instead of the criminal standard of proof, ‘beyond reasonable doubt’, and make decisions on that basis, with potentially serious implications for broadcasters, including loss of licence.

Effectively, the ACMA can act as policeman, judge and jury, despite the fact that it is not set- up to determine criminal law matters.

Free TV calls on the Government to immediately amend the relevant provisions in the BSA to address the implications of today’s findings for the wider industry.

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