The Australian Communication and Media Authority (ACMA) has the power to determine whether a licensee has committed a criminal offence when deciding whether to bring enforcement action, according to a High Court ruling.
The ruling in ACMA v Today FM (Sydney) Pty Ltd allows ACMA to take enforcement action over a prank by two of 2Day FM’s radio presenters on the King Edward VII Hospital in London. In a December 2012 incident that has been termed the ‘royal prank’, the presenters posed as Queen Elizabeth II and Prince Charles and contacted the hospital where the Duchess of Cambridge was an in-patient. They spoke with two hospital staff, with one giving some information about the Duchess. 2Day FM did not seek the permission of the hospital staff to broadcast the conversations.
The Broadcasting Services Act 1992 (Cth) (BSA) governs how broadcasting licensees are to operate. Clause 8 of Schedule 2 of the BSA provides that a condition of all commercial radio broadcasting licences is that the licensee will not use the broadcasting service in the commission of an offence against Commonwealth, state or territory law.
After the royal prank incident, ACMA initiated an investigation and produced a preliminary report, which was provided to 2Day FM on 18 June 2013. The report made a preliminary finding that the broadcast was in breach of section 11 of the Surveillance Devices Act 2007 (NSW) (SDA), as 2Day FM had not obtained the permission of the hospital staff to broadcast the private conversations described above. As a result, ACMA’s preliminary finding was that 2Day FM had committed an offence, and therefore breached a licence condition.This finding was confirmed by ACMA in its final report. Neither of ACMA’s reports have been made public.
On receiving the preliminary report, 2Day FM launched legal action against ACMA in the Federal Court, arguing that:
- ACMA was not authorised to find that 2Day FM had breached the licence condition when a criminal court had not found the station guilty of using its licence in ‘the commission of’ the SDA offence.
- If ACMA was so authorised, the legislation that allows such a finding would be an impermissible conferral of judicial power, invalid under the Constitution .
The arguments were unsuccessful at first instance. However, 2Day FM was successful in an appeal to the Full Federal Court. The Full Federal Court found that the BSA did not allow ACMA to determine whether an offence had been committed. It also found that there is a general principle, arising from constitutional law, that only courts exercising criminal jurisdiction can determine whether a criminal offence has been committed.
ACMA was granted special leave to appeal to the High Court. The Attorneys-General of the Commonwealth, Queensland, South Australia and Western Australia intervened in support of ACMA in relation to the constitutional issue raised by 2Day FM (intervention is permitted by section 78A of the Judiciary Act 1903).
The High Court rejected the Full Federal Court’s ruling and allowed ACMA’s appeal.
On the issue of whether ACMA could find that 2Day FM had used its broadcasting licence in the commission of an offence, in circumstances where the station had not been convicted, the High Court applied ordinary statutory interpretation principles to the BSA, highlighting that the relevant licence condition referred to the ‘commission of an offence’ rather than ‘conviction for an offence’. The Court held:
… 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.
When ACMA makes a determination about whether a licensee has used a broadcasting service in the commission of an offence it does not adjudge or punish criminal guilt, and is not bound by the criminal standard of beyond reasonable doubt. ACMA can also take into account matters that would not be admitted in a criminal trial when deciding what administrative enforcement action should be initiated.
2Day FM’s second argument was that ACMA was exercising judicial power in violation of the Constitution. A classic statement of the attributes of judicial power was made by Justice Kitto in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd. Kitto J stated that a power that did not have the identified attributes would need to possess some ‘special compelling feature’ before it could be regarded as judicial.
Before the Federal Court, 2Day FM argued that a number of the features of ACMA’s power under the BSA accorded with the characteristics of judicial power identified by Kitto J. However, before the High Court, 2Day FM instead argued that rather than ‘possessing all or any of the attributes of judicial power’, ACMA’s power to suspend or cancel a licence on the basis of finding an offence has occurred fell within the exception to the general statement articulated by Kitto J – that is, it was a ‘special compelling feature’ that could be classed as a judicial power even though it did not otherwise have the attributes of judicial power. The High Court rejected this argument, stating that ACMA is not exercising judicial power in its various functions as a broadcast media regulator.
If ACMA decides to suspend or cancel 2Day FM’s licence, that decision would be subject to merits review in the Administrative Appeals Tribunal (AAT) under section 204 of the BSA.
The High Court’s decision has been met with calls from Southern Cross Austereo (the owner of 2Day FM), Free TV Australia and the Australian Subscription Television and Radio Association (ASTRA) for the BSA to be amended.