Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd

Case [2015] HCA 7


HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, KIEFEL, BELL, GAGELER AND KEANE JJ

AUSTRALIAN COMMUNICATIONS AND MEDIA
AUTHORITY  APPELLANT

AND

TODAY FM (SYDNEY) PTY LTD  RESPONDENT

Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd

[2015] HCA 7

4 March 2015

S225/2014

ORDER

1.Appeal allowed with costs.

2.Set aside paragraphs 1 to 3 of the orders of the Full Court of the Federal Court of Australia made on 14 March 2014 and, in their place, order that the appeal to that Court be dismissed with costs. 

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC, Solicitor-General of the Commonwealth with N J Williams SC and A M Mitchelmore for the appellant and for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

N C Hutley SC with R C A Higgins for the respondent (instructed by Holding Redlich Lawyers)

M G Hinton QC, Solicitor-General for the State of South Australia with A C Wells for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

G R Donaldson SC, Solicitor-General for the State of Western Australia with K H Glancy for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

P J Dunning QC, Solicitor-General of the State of Queensland with A D Keyes for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd

Statutes – Statutory construction – Clause 8(1)(g) of Sched 2 to Broadcasting Services Act 1992 (Cth) ("BSA") conditioned commercial radio broadcasting licence on licensee not using broadcasting service in commission of offence against another Commonwealth Act or a law of a State or Territory – Authority's functions included suspension and cancellation of licences and taking enforcement action under BSA – Authority authorised to conduct investigations for purposes of its functions – Where, as part of investigation, Authority made finding that licensee used broadcasting service to commit offence against State law and thereby breached cl 8(1)(g) licence condition – Whether Authority had power to do so in absence of criminal court finding offence proven.

Constitutional law (Cth) – Judicial power – Where ss 10 and 12 of Australian Communications and Media Authority Act 2005 (Cth), ss 5, 170 and 178 of BSA and cl 8(1)(g) of Sched 2 to BSA authorised Authority to find licensee of commercial radio broadcasting licence breached cl 8(1)(g) licence condition and to take enforcement action under ss 141 and 143 of BSA prior to criminal court finding offence proven – Whether provisions thereby impermissibly confer judicial power on Authority.

Words and phrases – "adjudging and punishing criminal guilt", "administrative enforcement action", "judicial power", "used in the commission of an offence".

Australian Communications and Media Authority Act 2005 (Cth), ss 10, 12.
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AGLC
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7
Case
[2015] HCA 7
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning the Australian Communications and Media Authority's ("ACMA") power to find a breach of a commercial radio broadcasting licence condition without a prior criminal court finding of an offence. The dispute arose when ACMA investigated Today FM (Sydney) Pty Ltd ("Today FM") for broadcasting a recorded conversation obtained by presenters impersonating the Queen and Prince Charles to elicit information about a hospitalised royal. Today FM acknowledged not obtaining consent for the recording but disputed committing an offence under New South Wales law.

The central legal issues before the High Court were whether ACMA had the statutory power to determine that Today FM had breached clause 8(1)(g) of Schedule 2 to the Broadcasting Services Act 1992 (Cth) – which requires a licensee not to use its broadcasting service in the commission of an offence against a Commonwealth, State, or Territory law – in the absence of a criminal court finding that an offence had been proven. Relatedly, the Court considered whether the provisions of the Australian Communications and Media Authority Act 2005 (Cth) and the Broadcasting Services Act 1992 (Cth) that purportedly authorised ACMA to make such a finding and take enforcement action, such as suspending or cancelling a licence, impermissibly conferred judicial power on the Authority.

The High Court reasoned that the statutory framework, including sections 10 and 12 of the Australian Communications and Media Authority Act 2005 and sections 5, 170, 178, 141, and 143 of the Broadcasting Services Act 1992, did not grant ACMA the power to adjudicate criminal guilt. While ACMA could take administrative enforcement action based on its own findings, it could not make a determination that a licensee had "used [its] broadcasting service in the commission of an offence" in a manner that usurped the function of the courts to adjudge criminal guilt. The Court held that the provisions, as applied by ACMA to find a breach of clause 8(1)(g) based on its own determination of an offence, impermissibly conferred judicial power.

Consequently, the High Court allowed the appeal with costs, setting aside the orders of the Full Court of the Federal Court of Australia and ordering that the appeal to that Court be dismissed with costs.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside paragraphs 1 to 3 of the orders of the Full Court of the Federal Court of Australia made on 14 March 2014 and, in their place, order that the appeal to that Court be dismissed with costs.

Background

Background to the litigation

Breach of a condition of a commercial radio broadcasting licence is subject to a range of enforcement mechanisms. The breach may be prosecuted as a criminal offence under s 139(3)[31], or made the subject of a civil penalty order under s 140A(3) or administrative action. Administrative action may take the form of a remedial direction issued under s 141(1) or the suspension or cancellation of the licence under s 143(1). Failure to comply with a requirement of a remedial notice issued under s 141 is itself an offence[32] and subject to a civil penalty order[33]. The selection of the appropriate enforcement mechanism, if any, to apply to breach of a condition of a commercial broadcasting licence is largely at the discretion of the Authority. Only the Authority may apply for a civil penalty order[34]. The Authority is required to use its powers in dealing with breaches of the BSA or the regulations in a manner that in its opinion is commensurate with the seriousness of the breach[35]. The Authority's decision to suspend or cancel a licence is subject to merits review by the Administrative Appeals Tribunal ("the AAT")[36].[31]Section 139(3A) creates an offence of lesser seriousness in the case of a licensee who engages in conduct breaching cl 8(1)(ha) of Sched 2 to the BSA, which condition requires the licensee to comply with the maintenance of financial accounts.[32]BSA, s 142(3).[33]BSA, s 142A.[34]BSA, s 205G(1).[35]BSA, s 5(2).[36]BSA, s 204.The factual background Today FM (Sydney) Pty Ltd ("Today FM") holds a commercial radio broadcasting licence. On 4 December 2012, Today FM recorded a telephone call between two presenters of its "Summer 30" program and two members of the staff of the King Edward VII Hospital in London, at which the Duchess of Cambridge was an in-patient. The presenters represented that they were Queen Elizabeth II and Prince Charles and they inquired about the Duchess. One of the staff, apparently accepting the callers as genuine, provided some information about the Duchess' condition. The recording was broadcast during the "Summer 30" program some hours later and re-broadcast the following day. The Authority initiated an investigation into the broadcast. It invited Today FM to make submissions directed to whether, among other things, it had breached the cl 8(1)(g) licence condition by the commission of the offence in s 11(1) of the Surveillance Devices Act 2007 (NSW) ("the SDA")[37]. Today FM acknowledged that, before the segment was broadcast, it had not obtained the consent of either of the hospital staff to the recording, but it did not accept that it had committed any offence.[37]Section 11(1) of the SDA provides that a person "must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part".

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ GAGELER J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, KIEFEL, BELL AND KEANE JJ, GAGELER J

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