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Case summary: ACMA and Today FM

• 05 March 2015 • 5 min read
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On 4 March 2015, the High Court of Australia unanimously rejected the controversial decision of the Full Federal Court in relation to the Australian Communications and Media Authority’s (ACMA’s) ability to regulate conduct which it determines to be a criminal offence.

Our previous case note on the Full Federal Court decision can be found here.

The question for consideration was whether ACMA was entitled to make a finding that an offence had been committed under a New South Wales law when there had not been any prosecution brought or any finding of the commission of an offence by a criminal court.

It was argued by Today FM (Sydney) Pty Ltd (Today FM) that either the provisions of the Broadcasting Services Act 1992 (Cth) (BS Act) (under which ACMA made its finding) must be read to prevent ACMA from making such a finding or that, if those provisions did allow ACMA to make such a finding, this was unconstitutional and the finding amounted to the exercise of a judicial decision which was not allowed by an administrative decision maker.

The Full Federal Court had unanimously determined that the BS Act provisions should be interpreted not to allow ACMA to make a finding that an offence had been committed by Today FM when a criminal court had not done so. The High Court unanimously overturned the Full Federal Court's decision.

The High Court found that ACMA was entitled to make an administrative finding or express a view that a person has committed a criminal offence for the purpose of determining whether a person has breached a licence condition under clause 8(1)(g) of Schedule 2 to the BS Act. The condition in question requires that a licensee (in this, case Today FM) not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory.

It also found that forming this opinion and seeking to enforce the matter did not amount to a judicial decision and, therefore, the constitutional challenge raised by Today FM failed.


ACMA initiated an investigation into the conduct of Today FM after the broadcast of a covert conversation of a telephone call to a Lo­ndon Hospital in December 2012. A preliminary investigation report was provided to Today FM which stated that it had committed an offence under s 11 of the Surveillance Devices Act 2007 (NSW) as the consent of the parties to the conversation had not been obtained. The commission of the offence resulted in a breach of a condition of Today FM’s licence under clause 8(1)(g) of the BS Act.

Today FM sought injunctive and declaratory relief from the Federal Court. At first instance Today FM’s arguments were dismissed. Today FM appealed to the Full Federal Court who found in favour of Today FM and found that ACMA could not form an opinion that Today FM commissioned an offence without a court of law first making a conviction of guilt.

The Full Court allowed the appeal, the orders made by Edmonds J were set aside, and, in their place, the Full Court set aside ACMA's determination.

Special leave to appeal

On 15 August 2014, French CJ and Keane J granted ACMA special leave to appeal. The appeal was brought on three grounds:

  1. The Full Court erred in construing clause 8(1)(g) as requiring, for the purposes of enforcement action under s 141 or s 143, that ACMA may only find that a relevant offence has been committed upon a conviction by a criminal court (or a finding by a criminal court that the offence is proved).
  2. The Full Court erred in construing clause 8(1)(g) as requiring ACMA to defer administrative enforcement action until after (if at all) the conclusion of the criminal process and in holding ACMA bound by the outcome of that process.
  3. The Full Court erred in construing the expression “commission of an offence” in clause 8(1)(g) as extending to the commission of offences by persons other than the commercial radio broadcasting licensee.

Attorneys General of the Commonwealth, Western Australia, South Australia and Queensland intervened in the High Court proceeding in support of ACMA's position.

Today FM sought to have the Full Court’s decision affirmed.

ACMA’s appeal was allowed on its first and second grounds and Today FM’s constitutional challenge rejected.

High Court Decision

The High Court made reference to ACMA’s functions to monitor and investigate the conduct of broadcasting services throughout Australia and found that it was not offensive that an administrative body came to the conclusion it did when deciding to take disciplinary or other action.

It determined that a finding that a licensee was involved in the commission of an offence does not have the character of a judicial decision. The High Court made a distinction between the ‘commission of an offence’ as opposed to the ‘conviction of an offence’ and found that ACMA was not adjudging nor punishing criminal guilt and, therefore, not encroaching upon judicial power. It found that the opinion expressed was purely a step in the determination of a breach of clause 8(1)(g) and one which allowed ACMA to institute civil penalty proceedings in the Federal Court of Australia or to take administrative enforcement measures.

Justice Gageler stated that an administrative body does not perform a judicial function merely by determining for itself that a person has committed a criminal offence. He concluded that BS Act provisions would be unworkable if ACMA could not make an objective determination about compliance with conditions of a licensee from time to time during the period of the licence because it had to instead wait for a prosecution to be brought and determined.

Consequences of the High Court Decision

The dismissal of the decision of the Full Federal Court is somewhat of a relief for regulators. Whilst the case turns on the provisions of the relevant legislation, the principle that an administrative decision-maker can make a finding of fact that an offence has been committed, regardless of whether there has been a successful prosecution, is likely to apply broadly to administrative enforcement activities taken by regulators.

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