Australia: NSW Government Bulletin - 11 March 2015

Last Updated: 18 March 2015
Article by Sylvia Fernandez, Christine Jones and Kim Nguyen

Most Read Contributor in Australia, September 2016

In this edition, we look at the important High Court of Australia decision of Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, which was handed down on 4 March 2015.

The case related to a determination by the ACMA in an investigation report that Today FM, a commercial radio broadcasting licensee, had breached the Surveillance Devices Act 2007 (NSW) (the SDA) by recording and broadcasting the now-infamous 'royal prank call' to King Edward VII Hospital in London, and thereby also breached a standard condition of its commercial radio broadcasting licence under clause 8(1)(g) of Schedule 2 (the clause 8(1)(g) licence condition) to the Broadcasting Services Act 1992 (Cth) (the BSA). That condition provides that 'the licensee will not use the broadcasting service in the commission of an offence against another Act or a law of a State or Territory'.

The Full Court of the Federal Court of Australia had held that the trial judge had erred in holding that the ACMA was merely forming an opinion on the question of the offence, and concluded that the correct construction of the clause 8(1)(g) licence condition was narrower: absent clear language, the legislature was not taken to have conferred on the ACMA the power to make an administrative determination or finding of the commission of a criminal offence. The Full Court's decision was based on its expression of a 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.

The High Court unanimously allowed the ACMA's appeal, and held that the ACMA did not need to defer its investigation until after a criminal court had found that the relevant offence had been proven, and that the ACMA's powers to investigate and report on a breach of the clause 8(1)(g) licence condition are not judicial powers.

The plurality (French CJ, Hayne, Kiefel, Bell and Keane JJ) held that the language of the clause 8(1)(g) licence condition did not confine the ACMA's power in the way argued for by Today FM and accepted by the Full Court. The High Court rejected the Full Court's expression of the 'general principle' as being overly wide: it is not offensive to principle that an administrative body be empowered to determine whether or not a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.

Although the Director of Public Prosecutions (DPP) may become involved in the course of an ACMA investigation through section 178(2) of the BSA, the High Court held that section does not suggest any legislative intention that the involvement of the DPP would take the matter out of the hands of the ACMA or prevent it from forming an administrative opinion that an offence had been committed. Importantly, as the ACMA does not adjudge or punish criminal guilt, it is not constrained by the criminal standard of proof or laws of evidence, or the outcome of any criminal proceeding.

Instead, its powers relate to monitoring and regulating broadcasting services and taking administrative enforcement against a licensee that does not comply with the licensing conditions. As a result, the ACMA is able to take into account evidence that would not be admitted in a criminal trial, it is able to make a determination that an offence has been committed in the absence of a criminal conviction, and it is not bound by the outcome of any criminal proceeding.

The High Court also rejected Today FM's arguments that the ACMA exercised judicial power, holding that nothing in the ACMA's powers to investigate, report and suspend or cancel a licence following a breach of the conditions indicated that it was exercising judicial power. Gageler J issued a concurring opinion that focused on rejecting the Full Court's conclusion in its judgment that Chapter III of the Constitution and the common law supported the general principle that a statute is not ordinarily interpreted as empowering an administrative body to inquire into and determine whether a person has committed a criminal offence.

Although the case involved the scope of the ACMA's investigative and regulatory powers under the BSA, and the High Court's decision has tremendous implications for the entire broadcasting industry, it also has broader implications for Commonwealth and State Government agencies, and other disciplinary bodies (e.g. where misconduct is defined to include the engaging in of criminal offences). It is important to note that the case dealt only with the powers of the ACMA under the BSA and did not consider any findings about the conduct of Today FM.

Southern Cross Austereo issued a press release following the High Court's decision, noting that it had been informed by the NSW Police and the Australian Federal Police that they had completed their investigation of the recording of the royal prank call and had concluded that the recording of the call did not breach the SDA, the Commonwealth's Telecommunications (Interception and Access) Act 1979 (Cth), or any other law.

On a separate note, on 4 March 20015 the High Court also heard the appeal by the ICAC against the decision of NSW Court of Appeal in Cunneen v Independent Commission Against Corruption [2014] NSWCA. The High Court has reserved its decision.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.

In the media

States and territories unite against legal aid funding cuts
Federal Attorney-General George Brandis is under increasing pressure to reverse millions of dollars in funding cuts to legal aid and community legal centres around Australia. The current national partnership agreement for legal assistance services expires at the end of June (06 March 2015) More...

Increase in defendants finalised for illicit drug offences
The number of defendants finalised in Australia's criminal courts for Illicit drug offences increased by 15 per cent nationally in 2013-14, according to figures released today by the Australian Bureau of Statistics (05 March 2015) More...

High Court reserves decision on scope of ICAC's power in Cunneen case
The High Court is told even if the Independent Commission Against Corruption is prevented from investigating a top prosecutor, the NSW corruption watchdog's other ongoing inquiries are unlikely to be affected (04 March 2015) High Court reserves decision on scope of ICAC's power in Cunneen case

National awareness campaign to reduce violence against women and children
The Commonwealth Government will develop a new national awareness campaign focused on reducing violence against women and their children. The Commonwealth will work with state and territory governments on as part of the 2015 COAG agenda to reduce violence against women and children (04 March 2015) National awareness campaign to reduce violence against women and children | Prime Minister of Australia22

Targeting the king pins - cracking down on organised crime in NSW
The Baird Government announces tough new powers to give police the upper hand in the fight against organised crime, including UK-style Serious Crime Prevention Orders to disrupt the activities of serious criminals. The package also included new laws to ban would-be troublemakers from attending places or events (03 March 2015) More...

Police bugging report calls for complete overhaul of police and covert surveillance oversight - NSW
The Parliamentary Inquiry into the police bugging scandal has today handed down its final report recommending sweeping changes to both the structure of police oversight and the system for obtaining covert surveillance warrants in NSW (25 February 2015) More...

Funding boost ensures trials go ahead in NSW
Attorney General Brad Hazzard has welcomed the Federal Government's response to State Government calls for additional funds for lengthy and expensive Commonwealth criminal cases (25 February 2015) Funding boost ensures trials go ahead [PDF, 231KB]

Offender statistics show Sexual assault and related offences on the rise
The number of people with a principal offence of Sexual assault and related offences increased by 19 per cent in 2013-14, according to figures released today by ABS. The number of offenders with a principal offence of Sexual assault and related offences increased from 6,006 in 2012-13 to 7,175 in 2013-14 (25 February 2015) More...

Martin Place Siege Review released

The Commonwealth Government and the Government of New South Wales have released the Martin Place Siege Joint Commonwealth - New South Wales Review. Both governments accept all of the review's recommendations in full. The full NSW response to the Review can be found at (22 February 2015)

In practice and courts

New resources available for Australian employers
The Australian Human Rights Commission is reaching out to the business community to help employers embrace diversity and prevent discrimination in the workplace, with a suite of free online resources unveiled at a launch event this week (04 March 2015) New resources available for Australian employers

Human Rights e-bulletin 2015
In this e-bulletin: Protecting children is Commission's aim; Racial Discrimination Act a 'crucial enabler', says Governor-General; Progressing freedom is fair and just; Close the Gap Campaign takes its message to Canberra. See e-bulletin: 26 February 2015

New Federal Courts Legislation Amendment 2015
The Federal Courts Legislation Amendment Act 2015 No. 9 (Cth) was assented to on 25 February 2015. The amending Act confers jurisdiction on the Federal Circuit Court of Australia (the FCCA) in relation to certain tenancy disputes and enables delegated legislation to be made to modify the applicable state and territory law where appropriate, and to clarify the jurisdiction and the enforcement of an exercise of that jurisdiction

High Court Bulletin
The High Court has made available the High Court of Australia Bulletin [2015] HCAB 01 (20 February 2015), which provides a record of recent cases in the High Court

ICAC: Prosecution briefs with the DPP and outcomes
Information tables on briefs with the DPP and prosecution outcomes. Updated 25 February 2015 Prosecution briefs with the DPP and outcomes

NCAT Legal Bulletin Issue 1 of 2015
The latest issue has been published on 05 March 2015 NCAT Legal Bulletin Issue 1 of 2015 (March 2015)

NCAT: Updated fee waiver request form
The NCAT fee waiver request form has been updated and is now available in an easy to complete PDF-fillable format (24 February 2015)

Published – articles, papers, reports

Understanding fraud: The nature of fraud offences recorded by NSW Police
Released 25 Feb 2015, see the full report

College of Law Litigation Breakfast Series: An Overview of the NSW Civil and Administrative Tribunal
The Hon Justice Robertson Wright presentation on 3 March 2015 More...


Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7
Statutes – Statutory construction – Clause 8(1)(g) of Sched 2 to Broadcasting Services Act 1992 (Cth) ("BSA") conditioned commercial radio broadcasting licence on licensee not using broadcasting service in commission of offence against another Commonwealth Act or a law of a State or Territory – Authority's functions included suspension and cancellation of licences and taking enforcement action under BSA – Authority authorised to conduct investigations for purposes of its functions – Where, as part of investigation, Authority made finding that licensee used broadcasting service to commit offence against State law and thereby breached cl 8(1)(g) licence condition – Whether Authority had power to do so in absence of criminal court finding offence proven.
Constitutional law (Cth) – Judicial power – Where ss 10 and 12 of Australian Communications and Media Authority Act 2005 (Cth), ss 5, 170 and 178 of BSA and cl 8(1)(g) of Sched 2 to BSA authorised Authority to find licensee of commercial radio broadcasting licence breached cl 8(1)(g) licence condition and to take enforcement action under ss 141 and 143 of BSA prior to criminal court finding offence proven – Whether provisions thereby impermissibly confer judicial power on Authority. More...

Hoxton Park Residents Action Group Inc v Liverpool City Council [2015] NSWSC 136
CONSTITUTIONAL LAW – whether the Schools Assistance Act 2008 and Australian Education Act 2013 are contrary to Section 106 and 107 of the Constitution – insofar as they permit or provide for Commonwealth funding of the Malek Fahd Islamic School CONSTITUIONAL LAW – whether the Schools Assistance Act 2008 and Australian Education Act 2013, insofar as they permit or provide for Commonwealth funding of the Malek Fahd Islamic School, exceed the constitutional power of the Commonwealth by overriding the power of the State of New South Wales in the areas of religion and education EDUCATION & SCHOOLS – independent non-government religious school – Malek Fahd Islamic School – effect of funding by Commonwealth – whether 'establishes' a religion, 'imposes' any religious observance or 'prohibits' the free exercise of religion – contrary to Section 116 of the Constitution STANDING – whether the plaintiffs have standing to challenge validity and laws and executive acts relating to Commonwealth funding in respect of past expenditure More...

Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10
JUDICIAL REVIEW – statutory notice requiring answers to questions – statutory power to give notice only to enable a council to exercise its functions under the Environmental Planning and Assessment Act 1979 ('EPA Act') – prosecution for an offence against the EPA Act already commenced against an accused person when notice given – whether statutory power authorised the notice – notice given to a potential witness to enable council to exercise its prosecutorial function in aid of the pending criminal proceedings – prosecutorial function not a function under the EPA Act – notice ultra vires statutory power as not given to enable exercise of function under EPA Act – notice not ultra vires merely because given after a prosecution commenced – notice to potential witness, and not the accused, does not necessarily interfere with administration of justice – whether issue of notice involves a contempt of court – no actual or real risk of interference with administration of justice – no improper advantage to council such as would be contempt of court – whether notice defective – notice not defective in not stating functions of council or that person suspected of having knowledge – notice not defective in identifying authorised person giving notice – notice is defective in not identifying matter in relation to which person required to answer questions – notice declared invalid Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10

Shvetsova v Department of Education and Communities [2015] NSWCATAD 26
Government information – Whether held by agency – Whether reasonable searches conducted Application for order anonymising applicant's name – Principle of open justice – whether desirable to make such an order Costs – Special circumstances warranting an order for costs More...

Applicants v Commissioner of Police [2015] NSWCATAD 22
Government information – Request for information concerning a complaint under Part 8A of Police Act 1990 alleging police misconduct – police required to provide information to investigation – Personal information – Whether information has already been revealed –Whether prejudice to the supply of confidential information – Whether prejudice to the effective exercise of an agency's functions – Public interest in transparency and accountability - Balancing public interest considerations Order restricting publication of the name of a person – principle of open justice – confidentiality of complainant's identity in complaint under Part 8A of Police Act 1990. Disclosure of the applicants' names is prohibited More...



Regulations and other miscellaneous instruments

Crimes (Domestic and Personal Violence) Amendment (Apprehended Personal Violence Orders) Regulation 2015 (2015-113) — published LW 5 March 2015

Photo Card Amendment (Fee for 10-Year Card) Regulation 2015 (2015-115) — published LW 5 March 2015

Legal Profession Admission Rules 2005 - amendment (2015-107) — published Gazette No 15 of 27 February 2015, p 624. These amend the Second Schedule by adding: OR Ethics Law and Justice' after 'University of Technology, Sydney Legal Ethics A and Legal Ethics B OR Legal Accounting and Professional Responsibility OR Professional Conduct 2 OR Ethics and Professional Conduct

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