In December 2012 Today FM recorded a prank telephone call between presenters of one of its radio programs and staff of the King Edward VII Hospital in London regarding the Duchess of Cambridge. The broadcaster did not have the consent of either of the hospital staff to the recording, which was broadcast some hours later and re-broadcast the following day.
ACMA, as the national broadcast sector regulator, undertook an investigation under the Broadcasting Services Act 1992 (Cth), with a preliminary finding that broadcast of the recording constituted an offence under Surveillance Devices Act 2007 (NSW). Section 11 of that Act prohibits communication of a private conversation obtained, without the consent of the principal parties to that conversation, through the use of a listening device.
ACMA accordingly considered that Today FM had breached the licence condition under cl 8(1)(g) of Schedule 2 in the Broadcasting Services Act 1992 (Cth). That condition requires that a licensee not use its broadcasting service in the commission of an offence against a Commonwealth enactment or a law of a State or Territory. In finalising its report ACMA determined that Today FM had breached the cl 8(1)(g) licence condition.
Today FM responded in June 2013 through proceedings in the Federal Court seeking declaratory and injunctive relief. The broadcaster contended in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2013) 218 FCR 447 that ACMA lacked the authority to find that Today FM had breached the cl 8(1)(g) licence condition unless and until a competent court adjudicated that it had committed the SDA offence. Today FM argued in the alternative that, if ACMA was authorised, the authorising legislative provisions are invalid as inconsistent with the separation of executive and judicial power under the Constitution.
The Federal Court at first instance rejected both of Today FM's arguments and dismissed the proceedings. The Full Court in Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority (2014) 218 FCR 461 accepted Today FM's first argument and set aside ACMA's determination. By grant of special leave, ACMA appealed to the High Court.
The appeal was brought on three grounds -
- that the Full Court erred in construing cl 8(1)(g) as requiring, for the purposes of enforcement action under s 141 or s 143, that the Authority may only find that a relevant offence has been committed upon a conviction by a criminal court (or a finding by a criminal court that the offence is proved).
- that the Full Court erred in construing cl 8(1)(g) as requiring the Authority to defer administrative enforcement action until after (if at all) the conclusion of the criminal process and in holding the Authority bound by the outcome of that process.
- that the Full Court erred in construing the expression "commission of an offence" in cl 8(1)(g) as extending to the commission of offences by persons other than the commercial radio broadcasting licensee.
The HCA has now unanimously held that ACMA has 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 condition.
The Court 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 Broadcasting Services Act irrespective of whether there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. This is because, in making such a determination, ACMA is not adjudging and punishing criminal guilt.
The Court also held that, in making a determination, ACMA is not exercising judicial power.