Australia: Government Bulletin - 19 March 2014

Last Updated: 24 March 2014

Full Court of the Federal Court of Australia makes ruling regarding the regulatory and investigative powers of the ACMA

Last Friday (14 March 2014), in a unanimous decision, the Full Court of the Federal Court of Australia ruled that the Australian Communications and Media Authority (ACMA) had no power to determine that Today FM (Sydney) Pty Ltd (Today FM) had committed a criminal offence and therefore breached a standard condition of its commercial radio broadcast licence under the Broadcasting Services Act 1992 (Cth) (BSA).

The Full Court's decision (Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22) overturns the decision at first instance in which the Federal Court ruled in the ACMA's favour, and affirms the proposition that the determination of whether a criminal offence has been committed can generally only be conducted by Courts exercising criminal jurisdiction (and not by bodies exercising administrative or executive power). This general proposition informed the Full Court's statutory interpretation of the BSA, which led to the conclusion that the ACMA did not have the power to make its impugned decision before any finding of the appellant's guilt by a criminal Court. Holding Redlich acted for Today FM in the application.

This decision is important as it confirms the principle that the determination of criminal guilt should generally be left to the purview of Courts with criminal jurisdiction. The decision is of particular significance to the media industry, as it places a limitation on the investigative and regulatory powers of the ACMA, which has in previous investigations asserted that, as an administrative body, it has the power to form an opinion (on the balance of probabilities) that a licensee has committed an offence and has therefore breached a standard condition of its commercial radio broadcast licence.

The decision has particular relevance for NSW Government lawyers as the Full Court followed the High Court's approach in Balog v Independent Commission Against Corruption in which similar issues were dealt with, although in respect of different legislation.

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In the media

Full Federal Court allows Today FM appeal
On 14 March 2014, the Full Court of the Federal Court of Australia found in favour of Today FM in the matter of Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority, setting aside the judgment and orders of the Federal Court of Australia given on 7 November 2013 (14 March 2014). More...

Public inquiry into alleged corruption involving public officials and persons with interest in Australian Water Holdings starts Monday
More...

CCTV upgrade to combat public transport crime
NSW Government is investigating the use of advanced, innovative high definition Closed Circuit Television (CCTV) technology to further improve security and prevent crime across State public transport networks (13 March 2014). More...

New Bill Raises the Bar on Provocation
The revised partial defence of "extreme provocation", introduced into Parliament, will better reflect community attitudes towards cases in which an accused kills an intimate partner only to escape a murder conviction by claiming they had been provoked, Attorney General Greg Smith SC said today (05 March 2014). More...

High Court to hear landmark case on sex beyond female & male
Advocates for sex and gender diverse communities will seek to be heard as a landmark case commences before the High Court on whether sex can extend beyond the categories of male and female (04 March 2014). High Court hears landmark case regarding equal recognition before the law for gender diverse and intersex people

In practice and courts

NSW Courts
Uniform Civil Procedure Rules (Amendment No 64) 2014 and Uniform Civil Procedure Rules (Amendment No 65) 2014 commenced 7 March 2014.

Cases

Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22

STATUTORY INTERPRETATION – proper construction of cl 8, Sch 2 Pt 4 of the BSA – scope of powers conferred upon the ACMA under the BSA – application of the principle of legality – application of general principles of interpretation including those in Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625. More...

Legislation

New South Wales

Regulations and other miscellaneous instruments
Uniform Civil Procedure Rules (Amendment No 64) 2014 (2014-95) — published LW 7 March 2014 The object of these Rules is to amend rule 6.2 of the UCPR to extend (from one month to 6 months) the period for which a statement of claim seeking relief in relation only to a debt or other liquidated claim remains valid for service after the date on which it is filed.

Uniform Civil Procedure Rules (Amendment No 65) 2014 (2014-96) — published LW 7 March 2014 The object of these Rules is to provide that the email address required by rule 4.2 of the UCPR need not be the email address of the solicitor on the record, but may be the email address of the solicitor with day-to-day conduct of the matter (contact solicitor) or may be an email address of the solicitor's firm which is regularly monitored and from which any emails can be forwarded to the solicitor on the record or the contact solicitor.

Bills introduced Government

Courts and Other Legislation Amendment Bill 2014
The objects of the Bill include providing for the re-appointment and suspension of justices of the peace, to set out circumstances in which a report about an investigation of a complaint against a judicial officer is to be given to the judicial officer and the complainant and to permit oaths, declarations and affidavits to be taken or made before certain employees in Australian overseas posts.

Crimes Amendment (Female Genital Mutilation) Bill 2014 The objects of this Bill are to increase from 7 years imprisonment to 21 years imprisonment, the maximum penalty for the offence of performing an act of female genital mutilation or aiding, abetting, counselling or procuring a person to perform such an act. The Bill also creates a separate offence if a person takes, or arranges for the taking of, another person from the State with the intention of having female genital mutilation performed on that person.

Non-Government

Crimes Amendment (Provocation) Bill 2014
The Bill was introduced into the Legislative Assembly and received its second reading speech on 5 March 2014. The object of the Bill is to amend the principal Act in relation to the partial defence of provocation to a charge of murder.

Bills passed by both Houses of Parliament

Bail (Consequential Amendments) Bill 2014
This Bill aims to amend the Bail Act 2013, to make it clear that a bail authority can decide who is an acceptable person to provide security for the grant of bail, to expand the regulation-making powers conferred by the Act and to make minor changes of a statute law revision nature.

Crimes (Administration of Sentences) Amendment Bill 2014
Legislative Council 4/3/2014 Received and read a first time. This Bill makes miscellaneous amendments to the Crimes (Administration of Sentences) Act 1999 including to require remuneration earned by inmates in external work release programs to be paid directly to the Commissioner of Corrective Services on behalf of the inmates and to expressly authorise the Commissioner to deduct from such remuneration an amount to contribute towards the costs of programs and the inmate's imprisonment.

Bills assented to

Bail (Consequential Amendments) Act 2014 No 5 — Assented to 12 March 2014

Crimes (Administration of Sentences) Amendment Act 2014 No 6 — Assented to 12 March 2014

For the full text of Bills, and details on the passage of Bills, see Bills.

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