As is been the subject of much media reporting, the litigation instigated by Today FM (a licensee under the Broadcasting Services Act 1992 (Cth)) against the Australian Communications and Media Authority, arose out of the recording and broadcasting, without consent, of a telephone call between two of its radio presenters and two members of the staff of the King Edward VII Hospital in London, at which the Duchess of Cambridge was an in-patient. The Authority has now succeeded before the High Court in resisting the legal challenge by Today FM following the Authority’s preliminary finding that Today FM had breached a condition of its licence.
Background: The Australian Communications and Media Authority is charged with regulating broadcasting services in accordance with the Broadcasting Services Act 1992 (Cth). Providers of commercial radio broadcasting services in Australia must hold a licence under that Act. Clause 8(1)(g) of Sch 2 to the Act imposes a condition that a commercial radio broadcasting licensee “will not use the broadcasting service … in the commission of an offence” against another Commonwealth Act or a law of a state or territory. Breach of a condition is subject to a range of enforcement mechanisms. If a licence is suspended or cancelled, the decision is subject to merits review by the Administrative Appeals Tribunal.
The litigation: The Authority had prepared an investigation report, which contained the “preliminary finding” that it was of the view that Today FM had contravened the Surveillance Devices Act 2007 (NSW) (SD Act) and thus, having used its broadcasting service in the commission of an offence, had breached a condition of its licence as set out in cl 8(1)(g). Today FM then commenced proceedings in the Federal Court contending that the Authority was not authorised to find that it had breached the cl 8(1)(g) licence condition unless and until a competent court adjudicated that it had committed the SD Act offence and further, that in any event, the empowering provisions were an invalid purported conferral of judicial power on the Authority. A single judge dismissed Today FM’s application but Today FM was successful on appeal to a full court of the Federal Court. The Authority appealed to the High Court.
In allowing the appeal (Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd  HCA 7), the High Court held that the Authority 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, notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. The High Court said in particular:
• It was an error to hold that the ordinary meaning of the wording in cl 8(1)(g) connotes that a court exercising criminal jurisdiction has already found that an offence has been committed. There was nothing in the text of cl 8(1)(g) to support that confinement. Nor did the objects of the Broadcasting Services Act support that confinement.
• It was an error to construe cl 8(1)(g) in light of the posited principle that “it is not normally to be expected that an administrative body such as the Authority will determine whether or not particular conduct constitutes the commission of a relevant offence”. That principle was too wide. Said the High Court: “Not uncommonly, courts exercising civil jurisdiction are required to determine facts which establish that a person has committed a crime. Satisfaction in such a case is upon the balance of probability. In Helton v Allen, Mr Helton’s acquittal of the murder of the testatrix was no bar, on the trial of the civil suit arising out of the will, to the finding that he had unlawfully killed her. More generally, and contrary to the ‘normal expectation’ stated by the Full Court, it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action. … There is no reason to suppose that a Commonwealth public housing authority might lack the capacity to terminate a lease on the ground of the tenant’s use of the premises for an unlawful purpose notwithstanding that the tenant has not been convicted of an offence arising out of that unlawful use.”
• “In determining that a licensee has breached the cl 8(1)(g) licence condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with the relevant offence. It may find that the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.”
The High Court also held that, in making a determination, the Authority was not exercising judicial power. The High Court said: “It is well settled that functions may be judicial or administrative depending upon the manner of their exercise. Edmonds J (at first instance) rightly concluded that none of the features of the power conferred on the Authority to investigate and report on breach of the cl 8(1)(g) licence condition and to take consequential administrative enforcement action support the conclusion that it is engaged in the exercise of judicial power.”
This article first appeared in the Australian Commonwealth Courts and Family Law Tracker. The cases will be discussed in more detail in the CCH Australian High Court and Federal Court Reporter. Written by Christine Henchman, Senior Writer.