Peter Saxon talks to him one on one

It takes many components to run a successful radio station in Australia – talent, equipment, management, finance… but the one thing a station cannot operate without is a broadcast licence.

After a crucial decision in the High Court, last week, the man pictured, Chris Chapman, Chairman of The Australian Communications and Media Authority (ACMA) now has way too much power in the view of not just the Radio Industry but Television too.

Although the ACMA doesn’t oversee the press, this decision affects all the major media owners including News Corp, Fairfax Media, SCA, ARN and Nova Entertainment.

The High Court decision is the culmination of a long running battle between Southern Cross Austereo and the ACMA that was triggered by a prank call from two fill-in announcers at 2Day FM to the hospital in London where Kate Middleton, the Duchess of Cambridge was being treated for severe morning sickness. In the aftermath, one of the nurses they spoke to tragically took her own life.

In the simplest of terms, the issue stems from whether 2Day FM received permission from those nurses to record them and broadcast their involvement in the prank. According to the ACMA, they didn’t.

And if they didn’t, that may constitute an offence under the NSW Surveillance Devices Act.

A clause in the Broadcasting Services Act spells out that you must not use your broadcast licence to commit an offence under State or Territory law. If you do, you are automatically in breach of your Licence Conditions which then means that the regulator can impose some serious penalties including the cancellation of your broadcast licence without further investigation.

Seems straight forward, yet this wasn’t really what the action in the High Court was about. The court was not interested in the details of this particular case and heard no evidence about the prank call itself. The only concern they had was whether or not the ACMA had the authority to decide whether a broadcaster had broken the law, e.g. the NSW Surveillance Devices Act.

Of course, it’s not unusual for civil agreements to include a clause that says that if either party is convicted of a crime, then the agreement is null and void. But usually it is not enough to be merely accused of, or even charged with a crime, you must actually be convicted in a court of law to trigger such a clause.

Although the events surrounding the Royal Prank have been investigated by police, they have decided that 2Day FM has no case to answer. Subsequently, the matter has not been brought to trial nor has there been a conviction.

As such, lawyers for 2Day FM have argued all along that the ACMA does not have the authority to declare that a licensee has been using it’s broadcast services in the commission of an offence, if that licensee has not been convicted of an offence by the “proper” authorities.

But last week the full bench of the High Court decided that the ACMA does indeed have the authority to make such a declaration, Which means that along with it, the power to impose a penalty up to and including the cancelation of the station’s licence.

This prompted an angry response from both SCA and Commercial Radio Australia with it’s chief executive Joan Warner declaring “The ACMA can now act as police, judge and jury.”

Unsurprisingly, ACMA Chairman, Chris Chapman has a different view of what powers the regulator does and should have.

radioinfo: The focal point of the High Court decision is Clause 8(1)(g) of Schedule 2 of the Broadcasting Services Act which basically says that if you use your radio station to commit a criminal offence you are automatically in breach of your licence conditions, is that correct?

Chapman: Yes. Obviously, there is a process in terms of that and consequences.

radioinfo: What is the actual criminal offence that 2Day FM has committed?

Chapman: What’s buried in our investigation report and is not yet public is that we concluded that they breached section 11.1 of the NSW Surveillance Devices act of 2007 and that’s as a result of the way in which they went about broadcasting the recording of the private conversation between themselves and the nurse.

radioinfo: Is the bottom line that they didn’t get permission to broadcast from the nurses involved?

Chapman: Yes, they didn’t get consent.

radioinfo: Is it correct to say that following the High Court ruling, even though the authorities in both NSW and London have declared that 2Day FM have no case to answer, the ACMA can make their own determination that a criminal law has been broken despite no conviction having been recorded?

Chapman: That’s the misunderstanding that everybody has. We’re not actually concluding that they’ve broken the criminal law. We’ve come to an administrative determination as a preliminary to taking enforcement under the Broadcasting Services Act. So we actually are not ascribing any breach in a criminal law sense. We’ve formed a view as an administrative body based on the balance of probabilities, as opposed to the ‘beyond reasonable doubt.’

And that has been in various commonwealth state acts for years and years and years. This is no more than a re-affirmation of the law that we as the regulator and as the State Attorney Generals have assumed for many years. If I was to slightly overplay the point to make the point: We were in no doubt that we would win the High Court case because it is, in a legal sense, an unremarkable outcome.

radioinfo: Forgive me, but I’m still grappling with the notion that the clause in question states that if you break the law then you are automatically in breach. But if you haven’t been found guilty in a court…

Chapman: It required the ACMA to come to an administrative decision based on evidence that there was a commission of an offence.

radioinfo: Then how do you respond to the statement from CRA chief executive Joan Warner that: “The ACMA can now act as police, judge and jury?”

Chapman: I ignore those misconceived remarks. They don’t represent a true understanding of the High Court decision. We are not a judge and jury in any criminal sense.
 
That provision is simply a logical provision for any arm of government regulator administrative body to be able to go about its day to day operation. It obviously has to satisfy itself on evidence. It has to satisfy itself beyond probability on the balance of probability and it is always subject to review.
 
The High Court decision confirmed this categorically. And this is why I don’t buy into some of the language used.
 
radioinfo: Would you agree then that the ACMA has a lower burden of proof in the way that, say, a civil court has compared to a criminal court?
 
Chapman: Yes. You say lower. As I’ve stressed to you, ours is based on a balance of probabilities.
 
radioinfo: Why not simply refer cases like this to the Department of Public Prosecutions as the regulator has done in the past?
 
Chapman: There’s a whole suite of options and the ACMA rarely refers matters to the DPP. That’s simply because in trying to  be an agile regulator the reference of matters to the DPP takes it on an entirely different process. That’s then a potential criminal investigation if the DPP accepts the brief but it doesn’t lead to any timely resolution of matters which is essentially what were more interested in.
 
radioinfo: How broadly can these newly ratified powers be utilised? Hypothetically, let’s say that a radio station is suspected of channelling proceeds from advertising to a proscribed terrorist group, which is, of course, a criminal offence. And although the Federal Police can’t find enough evidence to charge and convict that station, could the ACMA step in and with that lower burden of proof, cancel their licence?
 
Chapman: We are dealing in hypotheticals…
 
radioinfo: Pretend I’m Geoffrey Robertson…
 
Chapman: The scope of offences which might fall within the terms of the licence condition at issue are limited because the ‘broadcasting service’ must be used in the commission of the offence at issue. If a broadcaster is broadcasting content that actively solicits funds that are proposed to be channelled towards terrorist organisations, then yes, that act might well be captured by the operation of the licence condition.
 
radioinfo: In February next year, when your contract comes up for renewal you will have been the Chairman of the ACMA for 10 years. Will you be looking to be reappointed for a third term?
 
Chapman: Well the easy response to that is under the act I’m not able to be reappointed because the maximum number of years you can serve is ten years.
 
radioinfo: I ask that because, given the High Court ruling, not just the radio industry but the television industry too, believe that the ACMA now wields too much power. And it’s been put to me during several conversations that the regulator’s Chairperson shouldn’t be in the job for more than five years. How do you respond to that?
 
Chapman: I’m not interested in those particular views. My own view is that ten years is the maximum that someone should be in the role. I think I consistently added value over the ten years. I think the organisation has gone from a very young and immature one to one that’s delivering much stronger outcomes with less resources  and goes about its brief in a confident yet appropriate way. I’m only interested in my own sense of  assessment and I’ll leave others to make whatever comments they like.
 
radioinfo: On a slightly different issue. In 2013, the ACMA imposed an additional licence condition on 2Day FM in regards to the “decency codes” because of events known as “the fat slag” affair that occurred on the Kyle and Jackie O Breakfast Show. Now that they’ve gone to KIIS FM, does this mean that 2Day FM is off the hook as far as that licence condition is concerned?
 
Chapman: Yes.
 
radioinfo: And KIIS FM doesn’t inherit those conditions?
 
Chapman: That’s correct.
 
radioinfo: I understand you will shortly bring down your decision on the “Royal Prank.” Will you be throwing the book at 2Day FM as nurse Saldanha’s  family have urged you to?
 
Chapman: The first thing we’ll be doing is issuing our determination report. investigation report and we will logically have discussions with the licensee about what sanctions are appropriate to the circumstances. I’m not going to pre-empt what the authority may decide because we haven’t made that decision yet.
 
radioinfo: When will you be releasing that ruling?
 
Chapman: I understand that we’ve given an undertaking that we would not publish without giving the licensee 15 business days notice. Clearly we will be respecting that undertaking.
 
It’s hard to put a time frame on these matters but it’s in everyone’s interest that these matters be brought to a conclusion as quickly as possible.