The Federal Court today has ruled that the powers of the
Australian Communications and Media Authority
(ACMA) extend to investigating into and deciding
whether a licensee has committed a criminal offence and therefore
breached a licensing condition under the Broadcasting Services
Act (Cth) (BSA). The Federal Court has found
that such an investigation does not involve any determination of
the licensee's criminal guilt or liability and is therefore not
an improper use of the ACMA's powers and does not amount to the
exercise of judicial power contrary to the Constitution.
The case arises out of the recording and broadcast made by
2DayFM on 4 December 2012 of conversations between its radio hosts
and staff members of King Edward VII Hospital in London where the
Duchess of Cambridge (Kate Middleton) was then an inpatient being
treated for morning sickness.
Soon after the broadcast, the ACMA began an investigation into
whether 2DayFM's broadcast involved the use of its broadcasting
service in the commission of an offence, specifically s11 of the
Surveillance Devices Act (NSW) (SDA). Use
of a broadcasting service in this way could amount to a breach of
2DayFM's licence conditions under the BSA.
In a preliminary report issued on 4 June 2013, the ACMA made an
initial finding that in broadcasting the recording of the private
conversation with the hospital staff, 2DayFM had contravened the
SDA and accordingly breached a condition of its licence.
2DayFM commenced proceedings in the Federal Court soon
afterwards seeking declarations and injunctive relief to restrain
the ACMA from making any determination that 2DayFM had committed
any criminal offences under the SDA. 2DayFM argued that:
The BSA and the ACMA Act do not authorise the ACMA to make
findings that a licensee has committed a criminal offence;
If the BSA and the ACMA do authorise the ACMA to make such
findings, the provisions are invalid, in providing for the exercise
of a judicial power otherwise than in conformity with Chapter III
of the Constitution; and
The finding proposed by the ACMA will interfere, or at least
carries a real risk of interference, with the administration in a
criminal proceeding and the Court would accordingly restrain
Justice Edmonds rejected each of these three propositions and
dismissed the application.
His Honour found that:
The ACMA's view does not amount to a judgment as to the
licensee's criminal guilt, or determine an appropriate
punishment for criminal guilt. Further, ACMA's determinations
are not, and can never be, conclusive of whether an offence has
been committed. His Honour held that the ACMA was able to come to a
view as to whether an offence has been committed without a court
having so adjudicated. Section 179(3) of the BSA specifically
contemplates that there may be an overlap of timing of the ACMA
investigation and the conduct of a criminal trial.
The consequences of the ACMA forming an opinion that the
licensee has breached the condition, does not support a
characterisation of the ACMA's conduct of investigation as
involving an exercise of judicial power. In particular:
2.1 The ACMA has broad regulatory functions;
2.2 The ACMA conducts an investigation in a nonadversarial
2.3 The investigation does not involve the resolution of a legal
controversy between the licensee and the ACMA;
2.4 The ACMA may consider matters which involve the commission
of an offence in the course of its administrative processes before,
or at the same time as, matters are before a court for
determination of criminal guilt;
2.5 There is no legal effect of a finding of breach, or an
immediate and necessary legal consequence; and
2.6 Courts are not constrained by an opinion of ACMA reached as
a result of an investigation.
The fact that criminal proceedings may ensue is irrelevant as
there is currently no such criminal proceeding currently on foot.
An administrative process cannot constitute an interference with
the due administration of justice in criminal proceedings which
have not yet commenced.
The decision provides a significant confirmation of the extent
of the ACMA's investigative and regulatory powers and may lead
to adverse licensing consequences for broadcasters in relation to
conduct that the ACMA finds has contravened the criminal law, even
where a police investigation has not been thought appropriate or
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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