TODAY FM SUBJECT TO DETERMINATIONS OF CRIMINAL CONDUCT BY THE ACMA
Readers would recall the Today FM controversy in which two radio presenters phoned the London hospital at which the Duchess of Cambridge was due to give birth, impersonating Queen Elizabeth II and Prince Charles, and enquired about the Duchess of Cambridge. Unfortunately, one member of staff, apparently believing their story, provided personal information about the Duchess’ condition.
The Australian Communications and Media Authority (ACMA) commenced an investigation into whether Today FM had breached a condition of its commercial broadcasting licence by using its broadcasting services in the commission of a criminal offence.
The offence in question was a contravention of section 11(1) of the Surveillance Devices Act 2007 (NSW), which relevantly states that a person must not publish, or communicate to any person, a private conversation that has come to the person’s knowledge as a result of the use of a listening device.
Following its investigation, and upon determination that an offence had been committed, the ACMA was authorised to suspend or cancel Today FM’s licence, or take enforcement action.
Today FM disputed the existence of the ACMA’s authorised powers on two principal bases:
- The ACMA can only exercise its power under clause 8(1)(g) once a court of criminal jurisdiction has found that Today FM had committed a criminal offence.
- Alternatively, the relevant provisions of the Broadcasting Services Act are constitutionally invalid because they attempt to confer judicial power on the ACMA to decide whether an offence has been committed and to implement penalties in accordance with that decision.
FEDERAL COURT OF AUSTRALIA DECISION
The Full Court of the Federal Court of Australia found for Today FM, reading down clause 8(1)(g) so as to allow the ACMA to exercise its powers only once a court had decided criminal guilt. The Court considered it unlikely that the legislature intended to empower the ACMA to decide on the commission of a criminal offence.
HIGH COURT OF AUSTRALIA DECISION
On appeal in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd  HCA 7, the High Court disagreed.
The High Court found there is nothing improper in empowering the ACMA to take administrative action against a licensee who uses its broadcasting services in the commission of an offence.
The Court found that the relevant determination is merely a precursor to the decision to take enforcement action; that the ACMA is not adjudicating on, and punishing, criminal guilt. Indeed, the ACMA is not bound by the beyond reasonable doubt standard of proof, may consider evidence that would be inadmissible in criminal proceedings, and may determine that an offence has been committed notwithstanding that the licensee may later be acquitted.
On this basis, the Court held that the taking of administrative enforcement action does not depend on a court first concluding commission of an offence, and that conferral of the ACMA’s determination and enforcement powers does not disturb the constitutional separation of judicial and executive powers.
Ultimately, it was found that the ACMA has the power (for the purpose of its administrative decision-making process) to determine that Today FM had committed an offence, and to take appropriate enforcement action.
This decision clarifies the scope of authority granted to the ACMA to make determinations about whether a commercial broadcaster has committed an offence, and to exercise its enforcement powers.
More generally, the case may be used to demonstrate the validity of powers conferred on administrative bodies to make determinations, generally of a character left to courts, as a step in that body’s ultimate determination.