Australia: The ACMA loses its battle over 2DayFM’s prank call: The Full Court of the Federal Court of Australia holds that the ACMA has no power to decide whether or not a broadcaster has committed a criminal offence
The Full Court of the Federal Court of Australia today has
reversed an earlier ruling which had empowered the Australian
Communications and Media Authority (ACMA) to
investigate and decide whether a broadcast licensee has committed a
criminal offence and therefore breached a licensing condition under
the Broadcasting Services Act (Cth)
The decision places a significant limit on the investigative and
regulatory powers of the ACMA, which has in the past regularly made
determinations of the sort under scrutiny in the 2DayFM case.
In a joint judgment, the Full Court confirmed the general
principle that the determination of whether or not a person has
committed a criminal offence is vested in courts exercising
criminal jurisdiction and not bodies exercising executive or
administrative power, such as the ACMA. In the absence of a clear
intention in the legislation to provide otherwise, that principle
The case arose 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.
Determination of criminal guilt
In reaching its decision today, the Full Court found that the
primary judge erred in his construction of the relevant provisions
of the BSA. In particular, the Full Court rejected the earlier
finding that the ACMA's investigation did not involve any
determination of the licensee's criminal guilt or liability,
but was merely making a non-binding "administrative
opinion" as to whether or not 2DayFM had committed a relevant
The Full Court looked carefully at the text of the BSA and
emphasised the need for statutory construction to begin and end
with a consideration of the text of the legislation. Whilst the
text must be considered in context, such as the legislative history
and other extrinsic materials, the Court noted that those elements
of context cannot displace the meaning of the statutory text.
The relevant provision of the BSA in this case requires a
determination first be made that a broadcast licensee has committed
a criminal offence against a law of the Commonwealth or a State or
Territory. There then arises a second question as to whether the
licensee used its broadcasting service in the commission of such an
The Full Court found that whilst the answer to the second
question is one of fact which the ACMA is able to determine in
carrying out its functions, the position is different for the first
matter which requires a determination of criminal guilt. In the
absence of clear language that the legislature had intended to
confer upon the ACMA a power to make such a finding, it is a
question which must be left to a court exercising criminal
Accordingly, the determination by the ACMA that 2DayFM had
breached its licence condition is now set aside.
Finally, the Full Court noted that the ACMA still had a relevant
role to play in the circumstances. Namely, if the licensee were to
make an admission that it had used its broadcasting service in the
commission of a relevant offence or a Court exercising criminal
jurisdiction found that such an offence had been committed, then
the ACMA could then determine whether the licensee had used its
broadcasting service in committing that offence and therefore
breached a licence condition.
The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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