Friday 17 April 2015

Pranking doesn't pay: when can a licensing authority inquire into criminal conduct by a licensee?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd, a judgment handed down on 4 March 2015, the High Court considered the circumstances in which a regulator can investigate and make findings with respect to alleged criminal conduct by a licensee. The case arose out of a now infamous incident in which Australian commercial radio personalities Mel Greig and Mike Christian telephoned nurse Jacintha Saldanha claiming to be members of the British royal family and sought information regarding the health of the Duchess of Cambridge. The prank call was recorded and broadcast on Today FM's Hot 30 Countdown program on 5 December 2012. Ms Saldanha later committed suicide.

Action by the Australian Communications and Media Authority

ACMA investigated the conduct of Greig and Christian for the purpose of determining whether action should be taken with respect to Today FM's commercial radio broadcasting licence. In a preliminary investigation report, ACMA concluded that Greig and Christian had committed a breach of the Surveillance Devices Act 2007 (NSW). ACMA therefore determined that Today FM had breached a condition imposed upon its commercial radio broadcasting licence by the Broadcasting Services Act 1992 (Cth) (the Act) that it not use its broadcasting service 'in the commission of an offence against … a law of a State'.

Court Proceedings

Today FM sought a declaration in the Federal Court that the Act does not authorise ACMA to make a finding that a licensee has committed a criminal offence. It submitted that the Act only authorises ACMA to take notice of the fact that a licensee has been convicted of an offence by a court. In the alternative, Today FM submitted that the Act breaches the separation of powers mandated by the Commonwealth Constitution by investing ACMA with judicial power.
Today FM's application was dismissed by Edmonds J. An appeal to the Full Federal Court was allowed. ACMA appealed to the High Court.

Judgment of the High Court

French CJ, Hayne, Kiefel, Bell and Keane JJ stated that 'it is not offensive to principle that an administrative body is empowered to determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action.' ACMA was required to determine, to the civil standard of proof, whether criminal conduct had occurred. However, this was to be done as a step in determining whether ACMA should take administrative action in response to a breach by Today FM of its licence conditions. ACMA was not required to determine criminal guilt as a step in the infliction of punishment. According to the majority, there was nothing 'incongruous' about conferring upon a licensing authority power to determine whether a broadcasting service had been used in the commission of a criminal offence.

The majority rejected Today FM's constitutional argument in peremptory fashion, stating that 'none of the features of the power conferred on the Authority to investigate and report on breach of the … licence condition and to take consequential administrative enforcement action support the conclusion that it is engaged in the exercise of judicial power.' Gageler J delivered separate concurring reasons.

What does this case mean for decision-makers?

Administrative decision-makers are often called upon to determine whether conduct amounting to the commission of a criminal offence has taken place. Thus, for example, a Tribunal exercising functions under the Health Practitioner Regulation National Law may be called upon to determine on the balance of probabilities whether a health practitioner has engaged in professional misconduct amounting to the crime of rape or indecent assault.

The Court's decision in Today FM is a reminder that the treatment of criminal offences in the context of administrative decision-making is a wholly different matter from the conduct of criminal proceedings. Administrative decision-makers are not bound by the rules of evidence and must take into account all information that is relevant to the performance of their statutory functions. They apply standards of satisfaction as to factual matters that are fundamentally different from the standard of proof applied by criminal courts. Thus an administrative decision-maker may properly conclude that an offence has been committed even where an acquittal has been entered in respect of the offence by a criminal court. In addition to confirming the scope of ACMA's jurisdiction under the Act, Today FM provides a valuable caution against implying principles of criminal law into administrative decision-making.

Of course, Today FM is a corporation and is not entitled to the privilege against self-incrimination. The issues considered by the High Court in Commissioner of the Australian Federal Police v Zhao were therefore not relevant to this matter. It should, however, be borne in mind that in an appropriate case, an injunction may issue to restrain an administrative decision-maker from acting in circumstances where the performance of its functions may undermine an accused's right to silence.

For queries relating to any of the issues identified in this blog, please contact:

Principal Solicitor
Janine Hebiton
Managing Principal Solicitor

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