Type : Focus Paper

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) (BSA).1

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 should stand.


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 offence.

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 offence.

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 jurisdiction.

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.


1See our Focus Paper of 7 November 2013 Federal Court of Australia Sharpens the ACMA's Teeth: The Legitimacy of the ACMA's Power to Investigate Potential Criminal Offences in the Absence of any Criminal Prosecution has Been Confirmed in the Case of 2DayFM's Prank Call Recordings

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