Jurisdiction - Australia
Australia – Green Light To Regulators Investigating And Expressing Opinions That Offences Have Been Committed?

4 March, 2015


In Brief


A unanimous decision in the High Court in the Australian Communications and Media Authority v Today FM (Sydney) Pty Limited [2015] HCA 7 highlights:


  • the importance of interpreting regulatory powers strictly by reference to their particular statutory framework, and
  • some real issues as to the role of regulators in policing statutory licences.




The Broadcast


In December 2012, Today FM broadcast a prank phone call made by two of its presenters to a London hospital where the Duchess of Cambridge, Kate Middleton, was being treated for acute morning sickness.


During the broadcast, the presenters pretended to be the Queen and Prince Charles, calling to check on the Duchess. A member of staff at the hospital, believing the presenters, put the call through to the ward, and staff there gave the presenters details of the Duchess’ condition.


ACMA Investigates


The broadcast caught the attention of the Australian Communications and Media Authority (ACMA), as the body responsible for regulating the broadcasting industry.


Shortly after the broadcast, ACMA notified Today FM that it was commencing an investigation, pursuant to section 170 of the Broadcasting Services Act 1992 (Cth) (BSA), as to whether the broadcast breached the standard conditions of Today FM’s commercial radio broadcasting licence.


The principal focus of ACMA’s investigation was whether Today FM failed to comply with a licence condition set out in the BSA in the following terms:


the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory”.


ACMA’s concern was that Today FM had breached that condition on the basis that:


  • the broadcast involved the recording and disclosure of a private conversation, without the consent of all participants, and
  • that amounted to a contravention of offence provisions in the Surveillance Devices Act 2007 (NSW) (SDA).


Today FM Commences Proceedings


Today FM commenced proceedings in the Federal Court of Australia, seeking both a declaration that ACMA was not empowered to find that Today FM had contravened the SDA and injunctive relief to prevent it from making or publishing any such findings.  


Today FM’s central argument was that:


  • as a matter of statutory construction, ACMA was not empowered to determine whether Today FM had committed a criminal offence, and
  • ACMA could not investigate, or draw conclusions, in respect of whether Today FM had used its broadcasting service in the commission of a criminal offence until a court had separately determined that the offence had in fact been committed.


In making that argument, Today FM relied, among other things, on the ‘principle of legality’ – a tool of statutory construction that requires a statute to be interpreted in accordance with a presumption that it was not intended to restrict existing common law rights and freedoms (unless clearly specified). In this case, Today FM asserted that ACMA’s interpretation of the licence condition was inconsistent with the common law right to have criminal guilt judged in a court vested with criminal jurisdiction rather than by ACMA as regulator.


Findings At First Instance And Appeal


At first instance, Edmonds J found in favour of ACMA. His Honour considered that:  


  • ACMA is empowered to investigate possible breaches of licence conditions and, to the extent it is relevant to that investigation, it can consider (as an administrative issue) whether an offence had been committed, and
  • in arriving at its findings, ACMA in fact reached no formal or binding conclusion as to criminal guilt, but simply made conclusions as to whether the licence condition had been breached.


On appeal, the Full Court of the Federal Court of Australia (Allsop CJ, Robertson and Griffiths JJ) unanimously overturned the first instance decision and found in favour of Today FM. The Court held that:


  • while Parliament can empower an administrative body to determine whether a person has committed a criminal offence, it should not be assumed to have done so without clear words to that effect,
  • neither the text nor the context of the statute suggested an intention to confer the power on ACMA to determine if a licensee had committed a criminal offence, and
  • the trial judge erred in holding that ACMA was merely forming an administrative opinion as to whether an offence had been committed.


Appeal To The High Court


ACMA was granted special leave to appeal to the High Court of Australia. The High Court delivered a unanimous decision in its favour on 4 March 2015.


In arriving at its decision, the High Court held that ACMA was simply making anadministrative determination that Today FM had committed a criminal offence. It was making no binding finding of guilt and ACMA was entitled to reach its view as a precursor to taking enforcement action under the BSA even though there had been no formal finding that the offence had been proven.


The Court made the following key observations:


  • it disagreed with the Full Federal Court’s view that it was unusual or offensive to principle for an administrative body to make a determination as to criminal guilt as a step in the decision as to whether to take disciplinary action,
  • it noted that the language of the licence condition focussed on the use of the broadcasting service (being an administrative enquiry) in the commission of an offence (as distinct from referring to a conviction or finding of guilt, which wording is sometimes used in other regulatory contexts to clarify that the regulator may act only once an offence has been successfully prosecuted),
  • it distinguished the legislative framework governing ACMA’s powers and responsibilities from the legislative framework governing the role of the NSW Independent Commission Against Corruption (ICAC), which framework has previously been found (in Balog v Independent Commission Against Corruption(1990) 169 CLR 625) to limit ICAC’s ability to make findings that a person  has committed a criminal offence, noting that ICAC’s functions are purely investigatory whereas ACMA’s functions include broader regulatory responsibilities, and
  • it expressed the view that ACMA’s regulatory functions would be unacceptably curtailed if it could only act after a court of criminal jurisdiction had first successfully prosecuted the licensee in respect of its commission of an offence.


The High Court also rejected a related argument brought by Today FM to the effect that the licence condition was invalid because it was inconsistent with the separation of the executive and judicial powers under the Constitution.


The High Court’s decision is yet another demonstration of the careful need to consider the wording of a statutory provision in its entire statutory context in determining how it is to be construed, including by reference to the statute’s objects and purposes. The decision also signals that the High Court considers that the “principle of legality” is to be approached with caution.


The decision gives rise to some potential areas of concern for regulated entities. The approach adopted by the High Court appears to give ACMA significant scope for policing broadcasting licences. In essence, the High Court’s approach appears to have the effect that:


  • ACMA can reach its conclusion, and act on that conclusion (including by suspending or cancelling the licence), based on the civil standard of proof,
  • in doing so, ACMA need not hear evidence that would be available in a criminal hearing and any evidence it does receive need not be in a form admissible in court proceedings, and
  • ACMA may take action on that basis notwithstanding that its members need not have any legal training and regardless of the views of a court of competent criminal jurisdiction. In other words, ACMA can cancel a licence based on its view that a broadcasting service was used in the commission of an offence even if a criminal court ultimately finds that the licensee did not commit that offence based on the criminal standard of proof.


There are numerous statutory regimes (both federal and state) that condition administrative action on the satisfaction that a person has committed an offence. While each statute will depend on it precise wording, it will be interesting to see how the High Court’s approach will impact these other regulatory regimes and whether it will encourage regulators to be more proactive in investigating possible contraventions of criminal offences and taking disciplinary action against statutory licensees. The decision may also be of interest to other investigatory or disciplinary bodies.


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For further information, please contact:


Graeme Johsnon, Partner, Herbert Smith Freehills

[email protected]


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