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 it.
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 context;
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 necessary.
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