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

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.