Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd: Government Agencies' Powers
Wednesday 4 March 2015 @ 10.59 a.m. | IP & Media | Legal Research
Today (4 March 2015) the High Court of Australia has handed down its decision inAustralian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (S225 of 2014), an appeal from a decision of the Full Court of the Federal Court of Australia (Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22; (2014) 307 ALR 1 (14 March 2014). The High Court has unanimously held that the Australian Communications and Media Authority (ACMA) has the power to make an administrative finding or express an opinion that a person has committed a criminal offence for the purpose of determining whether the holder of a commercial radio broadcasting licence has breached the licence conditions of the Broadcasting Services Act 1992 (Cth) (the BSA) Schedule 2 clause 8(1)(g).
Background to the Case
The facts giving rise to the case were that on 4 December 2012, Today FM had recorded
a telephone call between two presenters of Today FM’s Summer 30 program, posing as Queen Elizabeth II and Prince Charles, and two hospital staff
at King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient
being treated for morning sickness. One of the staff, apparently accepting that the
presenters were indeed the Queen and Prince Charles, provided certain details about
the Duchess’
condition and on the same day, the recording was subsequently broadcast during the
Summer 30 program.
The legal case arose from a determination by ACMA that followed an investigation into the matter, Today FM, a commercial radio broadcasting licensee, having breached the Surveillance Devices Act 2007 (NSW) by recording and playing the conversation on air and in so doing also a standard condition of its commercial radio broadcasting licence under the the BSA, namely, Schedule 2 clause 8(1)(g). The relevant standard licence condition provides that a ". . . licensee will not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory".
The Federal Court
Today FM commenced proceedings in the Federal Court of Australia and in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157, on 7 November 2013, Edmonds J gave his judgment, dismissing Today FM's application saying at paragraph [56] of his judgment that:
"In the absence of criminal proceedings having commenced against Today FM, the applicant can point to no interference with the administration of justice caused by the ACMA’s proceeding to finalise its investigation."
The Full Federal Court Appeal
On 19 November 2013, Today FM appealed to the Full Court of the Federal Court of Australia (see Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22). In February 2014, ACMA provided Today FM with a copy of its final investigation report (Investigation Report No 2928) and subsequently on 14 March 2014, the Full Court of the Federal Court gave its judgment, allowing Today FM's appeal. The Full Court decided that the determination of whether or not person had committed criminal offence was vested in courts exercising criminal jurisdiction, and not persons or bodies exercising executive power.
The Full Federal Court took the view that the trial judge had erred in holding that ACMA was merely forming an opinion on the question of the offence. It concluded that the correct construction of the BSA was narrower, it being a scheme that does not leave it to ACMA to express an opinion on the commission of an offence, but rather is intended to involve the Director of Public Prosecutions (see [2014] FCAFC 22 at [72]–[93]).
In the High Court of Australia
ACMA sought special leave to appeal to the High Court on 11 April 2014 and was granted special leave to appeal to the High Court on 15 August 2014. The appeal was heard by the High Court of Australia in November 2014 and the decision allowing the appeal was delivered today, 4 March 2015.
By allowing the appeal, the High Court has 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 under the BSA. Such power is notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. The High Court's reasoning is that, in making such a determination, ACMA is not adjudging and punishing criminal guilt and further, in making a determination, ACMA is not exercising judicial power.
[78] That conclusion makes it necessary to address a constitutional question, which the Full Court did not reach, as to whether it would amount to an exercise of judicial power for the Authority to act on its own view that conduct constitutes the commission of an offence within the scope of cl 8(1)(g) in exercising a particular statutory power. As narrowed in the course of oral argument before this Court, the question came down to whether the Authority would exercise judicial power were it to act on its own view that conduct constitutes the commission of an offence in going on to exercise the power conferred on it by s 143(1) to suspend or cancel a commercial radio broadcasting licence on the basis of breach of the condition of that licence in cl 8(1)(g).
[79] The short answer is that there is no basis on which the Authority, in so acting,
could be said to exercise judicial power. None of the indicia of exclusively judicial
power would be present. The Authority's cancellation or suspension of the licence
would not be, in form or in substance, the imposition of punishment for the commission
of an offence against a Commonwealth, State or Territory law. The Authority would
not be declaring or enforcing any existing criminal liability or civil
liability of the licensee or of anyone else. The Authority would not be resolving,
conclusively or at all, any controversy between parties.
The final result is that the Full Federal Court's decision and now the High Court's reversal of it in this case, now involve the scope of ACMA's investigative powers under the BSA, which has been confirmed as extending to matters of likely criminal liability, and will most likely have broader implications for Commonwealth and State Government agencies similar to ACMA and their powers.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Sources:
- Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (4 March 2015)
- Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22 (14 March 2014)
- Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157 (7 November 2013)
- Opinions on High (University of Melbourne High Court Blog)
