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
Managing Principal Solicitor
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