In its recent decision of Today FM (Sydney) Pty Limited v Australian Communications and Media Authority[2014] FCAFC 22, the Full Federal Court has held that the investigative and determinative powers of the Australian Communications and Media Authority (“ACMA”) do not extend to making a finding that a broadcasting licensee, or any other person, has committed a criminal offence.

The case arose out of recordings and broadcast made by 2DayFM on 4 December 2012 of conversations between its radio hosts, Mel Greig and Michael Christian, and staff members of King Edward VII Hospital in London where the Duchess of Cambridge was then being treated for acute morning sickness prior to the birth of Prince George.  Posing as Her Royal Majesty and Prince Charles, the presenters duped nurse, Jacintha Saldanha, who in turn transferred their call to another nurse.  That nurse also accepted the identity of the pranksters and divulged private information about the Duchess.  The conversation was recorded without consent and broadcast by 2DayFM.   Tragically, Ms Saldanha committed suicide soon after the broadcast.

Following these events, the ACMA commenced an investigation into 2DayFM, which holds a commercial radio broadcasting licence, under the Broadcasting Services Act 1992 (Cth) (“BSA”).  In particular the investigation centred on whether 2Day FM breached a condition of the grant of the licence, namely that it would not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory, specifically the Surveillance Devices Act (NSW) (“SDA”).   The ACMA was concerned that the prank was in breach of section 7 of the SDA which prohibits the broadcasting of private conversations, or section 11 of the SDA which prohibits communication or publication of private conversations or recordings of such activities.

The investigation culminated in a Preliminary Investigation Report by the ACMA which determined that the SDA had been breached and concluded that 2Day FM had used its broadcasting service in the commission on an offence, contrary to the conditions imposed on its licence by s 8(1)(g) of the BSA.

2DayFM commenced proceedings in the Federal Court soon afterwards seeking declaratory relief as to the proper construction, and in the alternative, the validity, of certain provisions of the BSA and the ACMA Act, in particular section 8(1)(g) of the BSA, as well as interlocutory and final injunctive relief, restraining ACMA (amongst other things) from making any determination that 2DayFM had committed any criminal offence.

The central issue for the Court, concerned the construction of section 8(1)(g), specifically whether that provision authorised the ACMA to make a finding that a licensee had committed a criminal offence.  At first instance, his Honour Justice Edmonds found that ACMA did have the power to make such a finding, yet in making such a finding ACMA was merely expressing an “administrative opinion” on the matter, which did not amount to a binding determination of criminal guilt.

The Full Court (Allsop CJ, Robertson and Griffiths JJ) disagreed.  A determination that a licensee has committed an offence is a matter to be determined only by a court exercising criminal jurisdiction.  The approach taken by the primary judge – that such a determination by ACMA was merely an “administrative opinion” – presented several difficulties.  First, there was nothing in the text of section 8(1)(g) which stated that ACMA was to form such an “administrative opinion”, or that such an opinion was to be formed “on the balance of probabilities” as opposed to the usual standard of criminal proof beyond reasonable doubt.  Secondly, other sections of the BSA required the ACMA to make relevant findings to exercise its powers of enforcement (not merely express opinions).  Thirdly, the words of the provision, namely “the commission of an offence”, carried with them in the Australian legal system, the connotation that a court exercising criminal jurisdiction had previously found that an offence has been committed.  Fourthly, even if it were only an expression of opinion of criminal guilt, such an opinion (whilst not legally binding) can have far reaching reputational consequences.  Fifthly, the words “the commission of an offence” as opposed to “conviction” did not change the fact that the legislature did not intend ACMA to make a finding of criminal guilt.  Sixthly, section 140 of the BSA (which dealt with continuing offences) proceeded on the basis that there had been aconviction for such offences.

Overall this construction is consistent with the principle of legality – that where there are two constructions open and the statutory provision in question touches on criminality, the narrow construction is open.  In the absence of clear language, it is unlikely that the legislature intended to confer upon ACMA a power to make an administrative determination that a licensee committed a criminal offence.

The successful appeal has vitalised the radio industry as it calls for reform of the ACMA.   Currently, the industry is lobbying the Federal Government for media reform, including limiting the types of complaints ACMA may investigate and to provide for greater rights of appeal.  For the moment, however, the watch dog’s teeth can still bite, but not so hard as to intrude into the sphere of criminal adjudication.