The High Court has unanimously allowed an appeal from the decision of the Full Federal Court relating to the powers of the Australian Communications and Media Authority. Following the suicide of a London nurse who was the target of ‘hoax call’ segment on Today FM, the ACMA sought to investigate whether Today FM had breached a licensing condition, cl 8(1)(g) in sch 2 of the Broadcasting Services Act 1992 (Cth), which requires it not commit any criminal offences, which in this case were possible offences under the Surveillance Devices Act 2007 (NSW) and the Telecommunications (Interception and Access) Act 1979 (Cth). The FCAFC upheld Today FM’s appeal, holding that the Broadcasting Services Act did not allow the ACMA to investigate possible criminal offences that have not been admitted by the station and have not been proved in court. The FCAFC held that the trial judge had erred in holding that the ACMA was merely forming an opinion on the question of the offence (see at [72]–[93]), and concluded that the correct construction was narrower: the scheme does not leave it to the ACMA to express an opinion on the commission of an offence, but rather is intended to involve the Director of Public Prosecutions.

Allowing the appeal, the Court unanimously 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 cl 8(1)(g) are not judicial powers. The plurality (French CJ, Hayne, Kiefel, Bell and Keane JJ) held that the language of cl 8(1)(g) did not confine the ACMA’s power in the way argued for by Today FM and accepted by the FCAFC (at [45]):

To construe cl 8(1)(g) as conditioning the power of the Authority to determine that the licensee has used the broadcasting service in the commission of an offence, and to take administrative enforcement action, upon a finding by a court exercising criminal jurisdiction that the offence is proven, would significantly confine the Authority’s enforcement powers. There is nothing in the text of cl 8(1)(g) to support that confinement. Nor do the objects of the BSA or the contextual matters identified by the Full Court support that confinement.

Although the DPP may become involved in the course of an ACMA investigation through s 178(2), that section did 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 (at [46]). Importantly, the ACMA does not adjudge or punish criminal guilt, is not constrained by the criminal standard of proof or laws of evidence, or the outcome of any criminal proceeding: rather, its powers relate to monitoring and regulating broadcasting services and taking administrative enforcement against a licensee that does not comply with the licensing conditions (see [48]–[49]). The 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 (see at [51]–[59]). Gageler J issued a concurring opinion that focused on rejecting the FCAFC’s conclusion (at [107]–[114] in its judgment) that ch III of the Constitution and the common law supported a 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.