Australian Communications and Media Authority v Today FM

On 4 March 2015 the High Court of Australia handed down its judgment in favour of the Australian Communications and Media Authority (ACMA) in the matter of Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd.

The Court's unanimous decision overturned a previous ruling by the Full Court of the Federal Court of Australia in favour of the radio station, and confirmed the ACMA's power to make a finding that Today FM breached a condition of its licence (which required that it not use the broadcasting service in the commission of an offence) by recording and then broadcasting, without consent, a prank telephone call to King Edward VII's Hospital in London in December 2012.

The High Court's judgment noted that:

'It is the Authority's function to monitor and regulate broadcasting services throughout Australia. There is no incongruity in empowering the Authority to take administrative enforcement action against a licensee who uses the broadcasting service in the commission of an offence, whether the offence is against Commonwealth, State or Territory law.'

The High Court held that the ACMA does have power to make an administrative determination that a licensee has committed a criminal offence as a preliminary to taking enforcement action under the Broadcasting Services Act 1992, despite there being no finding by a court exercising criminal jurisdiction that the offence has been proven. The Court so held because, in making such a determination, the Authority is not making a determination of a binding and conclusive character nor adjudging and punishing criminal guilt.

Significance of the decision

As Gageler J pointed out in his concurring reasons, it will always be a question of construing the relevant statute to determine:

  • whether a regulator is authorised to make a finding that a person has committed a criminal offence
  • if so, whether that particular authorisation is consistent with the separation of executive and judicial power established by Ch III of the Constitution.

However, the High Court's decision makes clear that there is no necessary barrier to a regulator being authorised to act in this way. As such, the decision is of considerable significance to all of those regulators – Commonwealth, State and Territory – that oversee legislative regimes that require them, as part of their regulatory functions, to consider whether breaches of the criminal law may have occurred.

The AGS team that worked on the High Court appeal included Special Counsel Dispute Resolution Andras Markus and Senior Lawyer Joe Edwards for the ACMA, and Senior Executive Lawyer Andrew Buckland and Senior Lawyer Simon Thornton for the Attorney-General (intervening).