Today’s unanimous High Court of Australia decision (a joint judgment of French CJ with Hayne, Kiefel, Bell and Keane JJ; and a separate judgment by Gageler J)1 allows the Australian Communications and Media Authority (ACMA), a non-judicial body, to impose enforcement action, including penalties, on broadcasters for committing a criminal offence. ACMA may do so if it is of the opinion, or makes an ‘administrative finding’, that the broadcaster has committed the offence – regardless of whether (or how) a court has ruled on that issue.

This represents a significant victory for ACMA which now has clear powers to make findings that broadcasters have engaged in criminal conduct, which in turn may place the broadcasters’ licences at risk.

The decision relates to the now infamous ‘Royal prank call’ of 4 December 2012. 2DayFM hosts had recorded phone calls between themselves and staff members of King Edward VII Hospital in London where the Duchess of Cambridge (Kate Middleton) was then an inpatient being treated for morning sickness. The calls were later broadcast. Shortly afterwards, ACMA began to investigate whether this amounted to a criminal offence, specifically whether section 11 of the Surveillance Devices Act (NSW) had been breached. If it was, then 2Day FM was likely to have breached ‘the cl 8(1)(g) licence condition’ prohibiting use of a broadcasting service in the commission of an offence. Various enforcement measures may be taken by ACMA in the event of a licence condition being breached.

On 4 June 2013, the ACMA made a preliminary finding that 2Day FM had breached the cl 8(1)(g) licence condition (i.e., that it used its broadcasting services in the commission of an offence). 2DayFM then commenced proceedings in the Federal Court seeking relief including restraining the ACMA from determining that 2DayFM had committed any criminal offences.

Today’s decision is the third act in those proceedings. Initially, the Federal Court ruled that ACMA’s powers extended to investigating into and deciding whether a licensee has committed a criminal offence (and therefore breached a licensing condition). It found that such an investigation did not involve any determination of the licensee’s criminal guilt or liability and did not amount to the exercise of judicial power contrary to the Constitution.2  On appeal, the Full Court of the Federal Court of Australia reversed that ruling, stating that there is a general principle that the determination of whether or not a person has committed a criminal offence is vested in courts exercising criminal jurisdiction and not bodies exercising executive or administrative power, such as ACMA; and that general principle should stand in the absence of a clear contrary intention in the legislation.3

The High Court now has allowed ACMA’s appeal from the Full Court’s ruling, and confirmed the breadth of its investigative and regulatory powers. In doing so, it rejected the Full Court’s expression of the ‘general principle’ as being overly wide4, taking the view that it is not offensive to principle that an administrative body be empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. In determining that a broadcaster has committed a criminal offence and thus breached a licence condition, the joint judgment considered, similarly to the Federal Court decision, that ACMA is simply not adjudging and punishing criminal guilt. As a result ACMA may take into account evidence that would not be admitted in a criminal trial, it may make a finding that an offence has been committed in the absence of a criminal conviction, and it is not bound by the outcome of any criminal proceeding.5 Nor could ACMA’s power to make such findings appropriately be categorised as ‘judicial’.6

In the separate judgment, His Honour Gageler J characterised 2Day FM’s compliance or non-compliance with cl 8(1)(g) as capable of objective determination from time to time and at each point in time throughout the period of the broadcast licence, provided that ‘the commission of an offence’ was read as ‘the doing of acts which constitute the commission of an offence’. His Honour considered this interpretation fitted within the legislative scheme and did not offend any canons of interpretation (properly construed). He agreed that ACMA was not exercising any judicial power on the basis that it would not resolve, conclusively or at all, any controversy between parties, pointing to the availability of judicial review.7

In response to the decision, Southern Cross Austereo (SCA) has issued a press release stating its belief that the decision amounts to a serious defect in Australian broadcasting law and setting out its intention to seek to have the law changed. It also noted that SCA had recently been informed by the NSW State Police and the Australian Federal Police that they had completed their investigations into the Royal prank call, and concluded that it did not breach the Surveillance Devices Act (NSW) or any other law.8