Key Points:

There is no general principle that administrative decision-makers cannot draw a conclusion about whether conduct constitutes the commission of a criminal offence.

Can an administrative decision-maker find, as part of the decision-making process, that a criminal offence has been committed, even if there's been no criminal conviction? The High Court has said "yes" (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7), in a decision which shows that in some circumstances a decision-maker can legitimately decide whether conduct involves the commission of a criminal offence.

A prank phone call triggers an ACMA investigation

In what became a notorious incident, two of the presenters on Today FM (Sydney) called King Edward VII Hospital in London, at which the Duchess of Cambridge was an in-patient, pretending to be members of the royal family. The subsequent conversation was recorded and broadcast, without the consent of the two members of the hospital staff.

The ACMA launched an investigation. Under the Broadcasting Services Act 1992 (Cth), licensees such as Today FM must comply with certain conditions, including one that the licensee "will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory".

The ACMA's preliminary report found that Today FM had breached this licence condition. The ACMA said that the prank call broadcast involved an offence against section 11 of the Surveillance Devices Act 2007 (NSW), which prohibits the communication of a private conversation obtained, without the consent of the principal parties to that conversation, through the use of a listening device. At the time, Today FM had neither been charged nor convicted of that offence.

Today FM sought a declaration and an injunction on the basis that:

  • under the Act, the ACMA cannot find that the licence condition has been breached unless and until a competent court adjudicated that it had committed the offence; or, in the alternative
  • if the ACMA is authorised to do this, the authorising legislative provisions are invalid because they are inconsistent with the separation of executive and judicial power under the Constitution.

A general principle that administrative decision-makers can't have an opinion that a criminal offence has occurred?

The Full Federal Court said that, as a matter of general principle, "it is not normally to be expected that an administrative body… will determine whether or not particular conduct constitutes the commission of a relevant offence." If it is to do so, that must be explicit in the legislation, and subject to any constitutional constraints.

This put it too widely, said the High Court. The Court focused on the difference between "commission of" an offence and "conviction for" an offence and said, "it is not offensive to principle that an administrative body is 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 this case, the High Court held that there was nothing to suggest that the ACMA must wait for a criminal court to determine a licensee's guilt before it can investigate the breach of a licence condition, report on the investigation and take administrative enforcement action.

Making a finding is not the same as convicting someone

The next question was whether an administrative decision-maker is impermissibly exercising judicial power if it determines that a licensee has used the broadcasting service or services in the commission of an offence.

The essence of Commonwealth judicial power is that it involves:

”a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons."

The High Court found that the ACMA's actions simply do not have those features. When it found that Today FM's broadcasting service was used in the commission of an offence, it was not resolving a controversy respecting pre-existing rights or obligations. It was a step in determining that a licence condition had been breached, and allowed it to take enforcement proceedings.

What this means for licensees under the Broadcasting Services Act 1992

This decision clarifies that the ACMA has the right to make determinations about whether use of a broadcasting service involves the commission of criminal offences as part of its enforcement powers. In other words, the ACMA does not have to wait for the criminal justice system.

What this means for administrative decision-makers

Many legislative schemes use a similar structure to the one in the Broadcasting Services Act considered by the High Court in this case. For example public sector employment schemes often place an obligation on employees to comply with all relevant laws. There is also a range of regulatory legislation which require individuals and organisations to comply with laws and not to commit offences.

This decision confirms that there is no general principle that administrative decision-makers cannot draw a conclusion about whether conduct constitutes the commission of a criminal offence. Whether a decision-maker is empowered to do so will depend on the terms of the particular statutory scheme.

A prank call with a dreadful postscript is the trigger for a decision that doesn't just clarify ACMA's powers, but those of any government decision-maker who is required to decide if conduct involves the commission of a criminal offence, as John Carroll and Cain Sibley explain.