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

Today FM (Sydney) Pty Ltd, the appellant, brought an action against the Australian Communications and Media Authority (ACMA), the respondent, in the Federal Court of Australia. The appellant sought to challenge the ACMA's determination that it had breached a licence condition under the Broadcasting Services Act 1992 (Cth). The dispute centred on whether the ACMA was empowered to determine that a relevant offence had been committed in order to decide whether a licence condition had been breached, where no competent court had made such a determination.

The primary legal issues in the case involved the interpretation of clause 8, Schedule 2 Part 4 of the BSA and the extent of the ACMA's powers under the Act. The court had to consider whether the ACMA had the authority to make findings of criminal offences independently of any court determination, and if such findings could be used to decide on licence condition breaches. The court also needed to interpret the relevant statutory provisions in light of the principle of legality and general principles of statutory interpretation, including those enunciated in Balog v Independent Commission Against Corruption.

The court concluded that the ACMA did not have the authority to determine that a criminal offence had been committed for the purpose of assessing compliance with a licence condition, unless a competent court had already made such a determination. The court held that the principle of legality, which requires that penalties and sanctions not be imposed unless expressly provided for by statute, constrained the ACMA's powers. Furthermore, the court found that the ACMA's interpretation of its powers was inconsistent with the BSA and the principle of legality. Consequently, the court set aside the ACMA's determination that the appellant had breached a licence condition.

The court further ordered that the appeal be allowed, the orders made by the Court on 7 November 2013 be set aside, and the originating application dated 18 June 2013 otherwise be dismissed. The respondent was directed to pay the appellant’s costs of the appeal. Final orders were to be made on the papers and without a further oral hearing.