In December 2012, radio station Today FM broadcasted a recorded telephone conversation between hospital staff members treating the Duchess of Cambridge and radio presenters impersonating Queen Elizabeth II and the Prince of Wales. This case note examines Today FM’s challenge to the statutory authority of the Australian Communications and Media Authority (‘ACMA’) to make a determination, as a precondition to taking administrative enforcement action, that the broadcaster had committed a criminal offence in recording the telephone conversation. It provides an analysis of the Full Federal Court of Australia and High Court of Australia judgments, giving particular attention to the application of the principle of legality as a presumption of statutory interpretation. The majority judgment of the High Court rejected the Full Court’s particular application of the principle of legality and the concurring judgment of Gageler J delivered a broader critique of the application of the principle to constitutionally imposed structural limitations on legislative power. In upholding the statutory authority of the ACMA, the High Court also provided confirmation as to the validity of the comparable powers of administrative bodies operating at both the state and federal level.He goes on to write that Today FM
broadcast a recorded telephone conversation between presenters of the ‘Summer 30’ radio program and staff members of a hospital at which the Duchess of Cambridge was an in-patient for a condition related to her pregnancy. Impersonating Queen Elizabeth II and the Prince of Wales, the presenters elicited an overview of the Duchess’ medical treatment from an on-duty nurse. [ACMA] commenced an investigation into the broadcasts following widespread publicity of the breach of patient privacy and the suicide of an on-duty nurse who had been recorded and broadcast in the Summer 30 segment, who blamed the presenters in a suicide note. In a preliminary investigation report, the ACMA formed the view that Today FM had contravened a criminal offence provision contrary to its licence conditions, which prompted the broadcaster to challenge the statutory authority and constitutional validity of this administrative power. In ACMA v Today FM, the Full Bench of the High Court of Australia held that the ACMA was authorised to make a determination that Today FM had committed a criminal offence for the purposes of administrative enforcement action. The High Court also held that the statutory power to do so was not an attempt on the part of the Australian Parliament to confer judicial power on a body that is not a court under ch III of the Australian Constitution.
This case note examines the judgments of the Full Court of the Federal Court of Australia (‘Full Federal Court’) and the High Court of Australia. Part II provides an overview of the factual background to the case and the statutory basis of the ACMA’s investigatory and enforcement powers. Part III and IV analyse the Full Federal Court and High Court judgments, which provide differing approaches to statutory interpretation with respect to the scope and applicability of the principle of legality.
Part V discusses the importance of ACMA v Today FM for administrative bodies with similar statutory powers to the ACMA, on which the Full Federal Court’s interpretation had the potential to cast doubt. In allowing the appeal, the High Court has provided clarity regarding the legality of administrative bodies operating across Australia to make determinations as to whether criminal offences have been committed as a precondition to taking administrative enforcement action. This issue was of such importance that the Attorneys-General of the Commonwealth of Australia, Western Australia, Queensland and South Australia intervened in support of the ACMA’s submissions.
Part V also outlines the implications of the case for future jurisprudence on statutory interpretation. Specific attention will be given to the principle of legality, which is a device of statutory construction that requires legislation be construed so as to avoid an infringement of common law rights and freedoms unless such an infringement is expressed by the legislature in ‘clear and unequivocal language’. In its narrower construction of the relevant provisions, the Full Federal Court applied the principle of legality to the constitutional doctrine that judicial power is vested exclusively in the courts. In the absence of clear language to the contrary, the Full Court held that ‘it is not normally to be expected that an administrative body’ would be granted the power to make its own determination as to whether an offence had been committed. The majority judgment of the High Court rejected the Full Court’s application of the principle of legality to the ACMA’s statutory authority. The concurring judgment of Gageler J went further than the majority, criticising more broadly the application of the principle of legality to rights sourced in constitutional limitations on legislative power.