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High Court rules on ACMA powers

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High Court rules on ACMA powers

Posted 18/03/2015 by Tyler Fox


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


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.