FEDERAL COURT OF AUSTRALIA

Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2014] FCAFC 22

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Court on 7 November 2013 be set aside, and in lieu thereof:

(a)    The determination made by the Australian Communications and Media Authority on or about 20 February 2014 that Today FM (Sydney) Pty Ltd had breached the licence condition in cl 8(1)(g) of Pt 4 of Sch 2 of the Broadcasting Services Act 1992 (Cth) be set aside.

(b)    The originating application dated 18 June 2013 otherwise be dismissed.

(c)    The respondent pay the applicant’s costs.

3.    The respondent pay the appellant’s costs of the appeal.

4.    If either the appellant or the respondent considers that other relief is required to give effect to the Court’s reasons for judgment they should seek to agree such relief within 7 days hereof. If either of them considers that other relief is required but agreement is unable to be reached on its terms, each of them should file and serve within 14 days hereof a written outline of submissions not exceeding 3 pages stating the reasons why they favour or oppose such other relief.

5.    Final orders will be made on the papers and without a further oral hearing.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

1        There are three issues in the appeal. The central issue is the proper construction of the following provision in Sch 2 of the Broadcasting Services Act 1992 (Cth) (the BSA):

8    Standard conditions of commercial radio broadcasting licences

(1)    Each commercial radio broadcasting licence is subject to the following conditions:

…

(g)    the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory;

…

2        In broad terms, the appellant (Today FM) contends that the primary judge erred in not accepting its contention that, properly construed, this provision does not authorise the statutory authority with responsibility for administering the BSA, the Australian Communications and Media Authority (the ACMA), to make a finding that a licensee has committed a criminal offence. The appellant says that that is a matter to be determined only by a court exercising criminal jurisdiction.

3        The appeal raises two further issues. First, if the appellant’s preferred construction is not accepted, did the primary judge err in rejecting the appellant’s alternative argument that the provision is invalid because it provides for the exercise of judicial power other than by a body authorised to do so by Ch III of the Constitution? Secondly, and independently of the other two issues, did the primary judge err in rejecting the appellant’s application for injunctive relief to restrain the ACMA from finalising its investigation into the question of whether or not the appellant had used a broadcasting service in the commission of an offence in circumstances where the Australian Federal Police (AFP) were also investigating the matter and there was a risk that the administrative process would interfere with the due administration of criminal justice?

4        For the following reasons, we consider that the appeal should be allowed on the basis that the primary judge erred in his construction of the relevant provisions of the BSA. In those circumstances, the constitutional question does not arise for determination. As to the third issue, we agree with the primary judge’s reasoning and conclusion and would reject the grounds of appeal to which this issue relates.

5        These reasons are structured as follows. First, we will outline the relevant background. Secondly, we will set out the relevant statutory provisions. Thirdly, we will summarise the reasons of the learned primary judge. Fourthly, we will outline the parties’ respective contentions. Finally, we will give our reasons for upholding the appeal.

BACKGROUND MATTERS

6        The following summary of the relevant background matters relies heavily on the primary judge’s helpful description of them.

7        On 4 December 2012, the appellant recorded a telephone call between two presenters of Today FM’s “Summer 30” radio program, posing as Queen Elizabeth II and Prince Charles, and two hospital staff at King Edward VII Hospital in London, where the Duchess of Cambridge (the Duchess) was an in-patient being treated for acute morning sickness. One of the staff, apparently accepting that the radio presenters were indeed the Queen and Prince Charles, provided certain details about the condition of the Duchess.

8        On the same day, the recording was subsequently broadcast by the appellant during the “Summer 30” program (the Segment).

9        The appellant holds a commercial radio broadcasting licence, number 3032, under the BSA. Pursuant to s 42(2)(a) of the BSA, the licence is subject to the conditions set out in Pt 4 of Sch 2, which include the condition imposed by cl 8(1)(g).

10        On 13 December 2012, acting on its own motion, the ACMA formally notified the appellant that it was commencing an investigation under s 170 of the BSA in connection with the broadcast of the Segment. By that letter, the ACMA:

(a)    indicated that, amongst other matters, the investigation concerned whether the appellant had complied with the Sch 2, cl 8(1)(g) licence condition; and

(b)    invited it to provide submissions on the question of whether the broadcast involved the use of the licensee's broadcasting service in the commission of an offence, specifically, s 11(1) of the Surveillance Devices Act 2007 (NSW) (the SDA) and various offences under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIAA).

11        The licensee forwarded to the ACMA submissions dated 2 January 2013, which attached a written advice by senior counsel to the effect that the ACMA had no jurisdiction to investigate or determine whether any criminal offence had been committed under either State or Commonwealth legislation unless that jurisdiction was expressly conferred. The licensee also provided information relating to the method used by it to make, record and broadcast the telephone call. That information was taken into account by the ACMA in preparing a summary of facts (the Summary of Facts).

12        On 4 June 2013, the ACMA provided the appellant with a confidential copy of Preliminary Investigation Report No. 2928 (the Preliminary Investigation Report), which included the Summary of Facts.

13        In the Preliminary Investigation Report, the ACMA – having observed that it considered that offences created by the SDA may be relevant for the purposes of assessing the licensee’s compliance with the cl 8(1)(g) licence condition – made the following preliminary finding (at page 20):

The ACMA is of the view that the licensee, in broadcasting the recording of the private conversation (which was made in contravention of subsection 7(1) of the SDA), has contravened subsection 11(1) of the SDA. Furthermore, because the licensee has used its broadcasting service in the commission of an offence under subsection 11 (sic) of the SDA, the licensee has breached a condition of its licence as set out in paragraph 8(1)(g) of Schedule 2 to the BSA.

14        At page 21 of the Preliminary Investigation Report, the ACMA provided this description of its powers:

The ACMA, as an administrative body, has the power to form an opinion as to whether a licensee has committed a Commonwealth, State or Territory criminal offence, for the purposes of deciding whether a licensee has breached the licence condition set out at paragraph 8(1)(g) of Schedule 2 to the BSA. The ACMA is not limited to forming such an opinion after an adjudication of criminal guilt by a criminal court. The formation of such an opinion by the ACMA may occur independently of any trial or conviction for a criminal offence. The ACMA particularly notes that any formation of such an opinion by it, or reliance on that opinion for the purpose of taking further action as contemplated by the BSA, does not, and could not, amount to an adjudication of criminal guilt in the manner in which a court’s decision would operate.

The ACMA’s opinion is to be formed on the civil standard of proof, that is, to the reasonable satisfaction of the ACMA (on the balance of probabilities): Rejfek v McElroy (1965) 112 CLR 517. However, the ACMA is mindful that formation of such an opinion about the commission of an offence is a serious matter and of the general rule that as the gravity of the consequences of a finding increase, so too does the weight of proof which should be required: see Briginshaw v Briginshaw (1938) 60 CLR 336. (Emphasis added).

15        At page 20 of the Preliminary Investigation Report, under the heading “Preliminary finding”, the ACMA made the following observations concerning the issue whether any offence had also been committed against the TIAA:

While the ACMA considers, based on the Summary of Facts (referred to below), that the licensee’s conduct falls within the scope of the SDA rather than the TIAA (because the relevant communications were not passing over a telecommunications system at the time they were recorded by the licensee), the ACMA also notes that the only available alternative factual position would be that the relevant communications were passing over a telecommunications system at the time they were recorded. If that were the case, then, in the ACMA’s view, the licensee’s conduct would have constituted an interception in contravention of subsection 7(1) of the TIAA, and the subsequent broadcast of the recording would also have constituted a contravention of subsection 63(1) of the TIAA. Accordingly, even if the factual situation differs from that set out in the Summary of Facts, the licensee would still have used its broadcasting service in the commission of an offence and would therefore still be in breach of the condition of its licence set out in paragraph 8(1)(g) of Schedule 2 to the BSA. (Emphasis in original).

16        Shortly after receiving a copy of the Preliminary Investigation Report, the appellant commenced a judicial review proceeding in which it sought declaratory relief as to the proper construction, and in the alternative, the validity, of certain provisions of the BSA and the Australian Communications and Media Authority Act 2005 (Cth) (the ACMA Act). It also sought interlocutory and final injunctive relief, restraining the ACMA (amongst other things) from making any determination that it had committed any criminal offence and, specifically, offences under the SDA.

17        The appeal arises from the orders made by the primary judge in respect of that application for judicial review. At the commencement of the hearing of the appeal, the Court was informed that the ACMA had proceeded to finalise its report in respect of the investigation. The Court was also informed that, in a letter dated 20 February 2014 to the appellant (under cover of which the ACMA provided the appellant with a copy of its final Investigation Report), the ACMA advised the appellant that it had determined that the appellant had “breached the condition of its licence set out in paragraph 8(1)(g) of Schedule 2 to the Broadcasting Services Act 1992”.

18        By its letter dated 20 February 2014 the ACMA also advised the appellant that, while the ACMA did not propose to publish the investigation report “at this time”, it would provide the appellant with 15 business days’ notice if it intended to do so in the future. The ACMA also stated that it “will consider the compliance issues raised by the investigation, as well as any other appropriate remedial measures, in due course”.

19        The contents of the Investigation Report are, in all relevant respects, substantially similar with or identical to the contents of the Preliminary Investigation Report. In those circumstances, it is convenient if we continue to refer to the Preliminary Investigation Report notwithstanding that the final Investigation Report was completed shortly prior to the hearing of the appeal. At the commencement of the hearing of the appeal, the appellant was granted leave to file an amended notice of appeal which added a claim for injunctive relief in respect of the publication by the ACMA of any final report concerning its investigation.

THE RELEVANT STATUTORY PROVISIONS

20        It is convenient first to set out some relevant provisions of both the ACMA Act, the SDA and the TIAA before turning to the relevant provisions of the BSA.

(a)    The ACMA Act

21        The ACMA is a statutory authority established by s 6 of the ACMA.

22        The ACMA’s broadcasting functions are set out in s 10(1), which relevantly provides:

(1)    The ACMA's broadcasting, content and datacasting functions are as follows:

(a)    to regulate broadcasting services, internet content, designated content/hosting services and datacasting services in accordance with the Broadcasting Services Act 1992;

    …

(c)    to allocate, renew, suspend and cancel licences and to take other enforcement action under the Broadcasting Services Act 1992;

…

(e)    to conduct investigations as directed by the Minister under section 171 of the Broadcasting Services Act 1992;

…

(m)    to monitor and investigate complaints concerning broadcasting services (including national broadcasting services) and datacasting services;

…

23        Division 2 of Pt 3 of the ACMA Act deals with membership. Eligibility to be appointed a member of the ACMA does not require a person to have any legal or other prescribed qualifications.

24        Section 12 of the ACMA Act provides that the ACMA has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions (apart from three specific exceptions which are irrelevant to the appeal).

(b)    The SDA

25        Subsection 7(1) of the SDA provides as follows:

7    Prohibition on installation, use and maintenance of listening devices

(1)    A person must not knowingly install, use or cause to be used or maintain a listening device:

(a)    to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b)    to record a private conversation to which the person is a party.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

….

26        Section 4 contains the following definitions:

listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

…

party:

(a)    to an activity—means a person who takes part in the activity, and

(b)    to a private conversation—means a person by or to whom words are spoken in the due course of the conversation or a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of the conversation, records, monitors or listens to those words.

    …

private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:

(a)    by themselves, or

(b)    by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

27        Section 11 of the SDA provides as follows:

11    Prohibition on communication or publication of private conversations or recordings of activities

(1)    A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part.

Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

(2)    Subsection (1) does not apply to the following:

(a)    if the communication or publication is made:

(i)    to a party to the private conversation or activity, or

(ii)    with the consent, express or implied, of all the principal parties to the private conversation or activity, or

(iii)    for the purpose of investigating or prosecuting an offence against this section, or

(iv)    in the course of proceedings for an offence against this Act or the regulations,

(b)    if the communication or publication is no more than is reasonably necessary in connection with an imminent threat of:

(i)    serious violence to persons or of substantial damage to property, or

(ii)    commission of a serious narcotics offence.

(3)    A person who obtains knowledge of a private conversation or activity in a manner that does not involve a contravention of a provision of this Part is not prevented from communicating or publishing the knowledge so obtained even if the same knowledge was also obtained in a manner that contravened this Part.

(c)    The TIAA

28        Subsection 7(1) of the TIAA provides:

A person shall not:

(a)    intercept;

(b)    authorize, suffer or permit another person to intercept; or

(c)    do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

29        A “telecommunications system” is defined in s 5(1) to mean a telecommunications network that is within Australia or is partly within Australia (but only to the extent that it is within Australia), and includes “equipment, a line or facility that is connected to such a network and is within Australia”.

30        Subsection 6(1) of the TIAA provides:

For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

31        Subsection 63(1) of the TIAA provides that “a person shall not... communicate to another person, make use of, or make a record of… information obtained by intercepting a communication in contravention of subsection 7(1)”. A person who contravenes subsections 7(1) or 63(1) is guilty of an offence (see s 105(1)).

(d)    The BSA

32        The objects of the BSA are set out in s 3. They include the object of providing “a regulatory environment that will facilitate the development of a broadcasting industry in Australia that is efficient, competitive and responsive to audience needs” (s 3(1)(b)).

33        The “regulatory policy” of the BSA is set out in s 4. Relevantly, some of those policies are expressed in subs 4(2) in the following terms:

(2)    The Parliament also intends that broadcasting services and datacasting services in Australia be regulated in a manner that, in the opinion of the ACMA:

(a)    enables public interest considerations to be addressed in a way that does not impose unnecessary financial and administrative burdens on providers of broadcasting services and datacasting services; and

(b)    will readily accommodate technological change; and

(c)    encourages:

(i)    the development of broadcasting technologies and datacasting technologies, and their application; and

(ii)    the provision of services made practicable by those technologies to the Australian community.

34        Section 5 is relevant to the role of the ACMA. Subsection 5(1) provides, that in order to achieve the objects of the BSA in a way that is consistent with the regulatory policy referred to in s 4, the Parliament:

(a)    charges the ACMA with responsibility for monitoring the broadcasting industry, the datacasting industry, the Internet industry and the commercial content service industry; and

(b)    confers on the ACMA a range of functions and powers that are to be used in a manner that, in the opinion of the ACMA, will:

(i)    produce regulatory arrangements that are stable and predictable; and

(ii)    deal effectively with breaches of the rules established by this Act.

35        Subsection 5(2) reflects the Parliament’s intention that the ACMA use its powers in a manner which, in the ACMA’s opinion, is proportionate to the seriousness of a breach. It is in the following terms:

(2)    Where it is necessary for the ACMA to use any of the powers conferred on it by this Act to deal with a breach of this Act or the regulations, the Parliament intends that the ACMA use its powers, or a combination of its powers, in a manner that, in the opinion of the ACMA, is commensurate with the seriousness of the breach concerned.

36        The effect of s 12(1) is to require commercial broadcasting services (as defined in s 14, which include a service that delivers radio programs) to hold an individual licence.

37        Each commercial radio broadcasting licence is subject to the conditions set out in Sch 2, Pt 4 of the BSA and such other conditions as are imposed under s 43 (see s 42(2)(a) and (b)). The conditions which are set out in Sch 2 of Pt 4 cannot be varied or revoked.

38        Part 10 of the BSA deals with remedies for breaches of licensing provisions. Division 3 deals with action in relation to breaches by licensees. Those potential actions include (but are not limited to) the bringing of criminal proceedings in relation to criminal offences created by the BSA, the bringing of civil penalty proceedings in respect of relevant breaches, the ACMA issuing a remedial direction and action by the ACMA to suspend or cancel the licence.

39        In this context, it is significant to note that s 139 creates a series of criminal offences in relation to the breach of conditions of a broadcasting licence by a licensee. Of particular relevance is subsection 139(3), the effect of which is to make it a criminal offence for a commercial radio broadcasting licensee to engage in conduct which breaches a condition of the licence set out in cl 8(1) of Sch 2 (apart from cl 8(1)(ha)). Such an offence carries a sanction of 500 penalty units (i.e. $85,000). Clause 8(1) includes paragraph (g) and the prohibition on a broadcasting service being used in the commission of an offence. It might also be noted that, under s 140 of the BSA, a licensee is guilty of a separate offence in respect of each day during which a breach of s 139 continues (and s 213 further provides that, if an offence against the BSA is a continuing offence, the maximum penalty for each day that the offence continues is 10% of the maximum penalty that could be imposed in respect of the principal offence).

40        The BSA contemplates that a decision whether or not to commence a criminal prosecution in respect to a possible offence against the BSA will be made by the Director of Public Prosecutions (DPP) and not the ACMA. Hence, s 215(3) provides that, in deciding whether to refer a matter to the DPP for action in relation to a possible offence against the BSA, the ACMA must have regard to any relevant guidelines in force under s 215(4) (under that provision, the ACMA is empowered to formulate guidelines in the form of a legislative instrument).

41        Clause 8(1)(g) is expressed to be engaged in circumstances of an underlying offence against another law having been committed. The only other licence condition which relates to compliance with another Act or law is cl 8(1)(a), which prohibits a licensee, in contravention of the Tobacco Advertising Prohibition Act 1992 (Cth) (the TAP Act), from broadcasting a tobacco advertisement within the meaning of that Act. It is to be noted that while cl 8(1)(g) refers to the “commission” of an offence, cl 8(1)(a) refers to a “contravention”. As will emerge below, this is a matter which is emphasised by the intervener.

42        It might also be noted that the breach of any of the conditions set out in cl 8(1) of Sch 2 by a licensee may attract a civil penalty under s 140A of the BSA. Furthermore, any such breach may also attract the ACMA’s power under s 141 to issue a remedial direction to a licensee. It is an offence for a licensee to breach a remedial direction (see s 142(3)). Importantly, the ACMA is also empowered by s 143 to suspend or cancel a licence where the licensee has breached a licence condition.

43        The ACMA’s power to conduct an investigation is contained in Div 2 of Pt 13. Under s 170, the ACMA has a discretion whether or not to conduct investigations for the purposes of the performance or exercise of any of its broadcasting functions and related powers. Section 173 empowers the ACMA to summons a person to attend before a delegate of the ACMA and to produce documents or answer questions, as well as a separate power to require a person to provide documents or other information to the ACMA. The ACMA is empowered by s 174 to examine a person so summoned on oath or affirmation. Any such examination must be conducted in private, however an adviser may be present (s 175).

44        Section 178 of the BSA is an important provision. Under s 178(1) the ACMA has a discretion whether or not to prepare a report on an investigation (unless its investigation has been carried out at the direction of the Minister, in which case it is obliged to prepare and furnish a report to the Minister). Subsection 178(2) then provides:

(2)    If a report on an investigation relates to conduct that could constitute an offence under this Act or another law of the Commonwealth, the ACMA may give a copy of the report or of a part of the report to the Director of Public Prosecutions.

45        Section 179 deals with the publication of an ACMA report prepared as a result of an investigation. Apart from a report prepared as a result of a ministerially directed investigation (in which case the Minister has a discretion under s 179(2) whether or not to direct the ACMA to publish the report), the ACMA has a discretion whether or not to publish a copy of a report. Subsection 179(3) is significant because it qualifies that discretion in the following terms:

(3)    The ACMA is not required to publish, or to disclose to a person to whose affairs it relates, a report or part of a report if the publication or disclosure would:

(a)    disclose matter of a confidential character; or

(b)    be likely to prejudice the fair trial of a person.

46        This discretion presumably applies not only where the ACMA has prepared a report of its own volition, but also to a report prepared by it following Ministerial directions to prepare and publish a report. That is important, because it demonstrates an overarching concern to preserve the due administration of the criminal justice system. However, it is to be noted that s 179(3) is not expressed in terms of a prohibition on the ACMA’s power to publish a report. It expressly provides that there is no requirement of publication or disclosure in the circumstances there specified.

47        Section 180 imposes a procedural fairness obligation on the ACMA, by requiring it not to publish a report or any part thereof until it has given any person whose interests would or would be likely to be adversely affected to make representations to it in relation to the matter.

48        Section 215 is another important provision. Subsection 215(3) deals with referrals by the ACMA to the DPP and it provides as follows:

(3)    In deciding whether to refer a matter to the Director of Public Prosecutions for action in relation to a possible offence against this Act, the ACMA must have regard to any relevant guidelines in force under subsection (4).

49        It is to be noted that, in contrast to cl 8(1)(g), neither s 178(2) nor s 215(3) deals with conduct which constitutes an offence against a law of a State or Territory. They are respectively confined to conduct that could constitute an offence under the BSA or another law of the Commonwealth and conduct in relation to a possible offence against the BSA. In contrast, the qualification in s 179(3) on the ACMA’s power or duty to publish or disclose a report if publication would be likely to prejudice the fair trial of a person, applies to a trial for any alleged offence against any Commonwealth, State or Territory law.

50        Part 13 of the BSA deals with information gathering by the ACMA. It relates to investigations and hearings conducted by the ACMA under the BSA. It contains some important provisions which are relevant to the central issue of construction. In particular, it is to be noted that the effect of s 168(1) is to empower the ACMA, in informing itself of any matter relevant to its broadcasting functions (which presumably include its relevant functions under s 10 of the ACMA Act to regulate broadcasting services in accordance with the BSA and to take enforcement action under that Act), to consult with such persons as it thinks fit, to conduct investigations and hold hearings and to otherwise inform itself in any manner it thinks fit. Equally significantly, s 168(2) provides that, subject to any directions given by the Minister under Part 13, in informing itself on any matter relevant to its broadcasting functions, the procedure that the ACMA adopts for that task is that which it considers:

(a)    will be the quickest and most economical in the circumstances; and

(b)    will also promote that due administration of the BSA.

51        It is significant that, if the Minister is satisfied that the ACMA should, in the interests of the due administration of the BSA, conduct an investigation or hold a hearing into a matter, he or she may give a binding direction to the ACMA to that effect under either ss 171 or 183 respectively. To that extent, the ACMA’s powers and discretions to conduct an investigation or hold a hearing are subject to binding Ministerial directions.

52        Division 3 of Pt 13 deals with hearings by the ACMA. The ACMA has a discretion to hold hearings for the purposes of the performance or exercise of any of its broadcasting functions and related powers (s 182). The procedure for the conduct of the hearing is within the ACMA’s discretion (s 184(1)). However, any such hearing must be conducted with as little technicality and formality, and as quickly and economically, as the requirements of the BSA and a proper consideration of the matters before the ACMA permit (s 186(1)). It is also important to note that s 186(2) expressly states that in holding a hearing the ACMA is not bound by the rules of evidence.

53        The procedures and substantive protections created by Div 3 of the BSA are quite different from those created by Div 2 of Pt 13. As noted above, examinations under Div 2 must be conducted in private (s 175), while those under Div 3 are presumptively public (s 187). Moreover, in contrast with Div 2, under Div 3 the ACMA must take into account certain materials and submissions (ss 196 and 197), and there are more stringent criteria in respect of a person’s right to be represented (see ss 175 and 198(1) respectively). It might also be noted that Div 4, which contains provisions which provide protection and immunity to members of the ACMA who conduct a hearing (s 201), as well as lawyers or representatives who appear at a hearing, apply to Div 3 hearings, but not to Div 2 investigations. For completeness, it might be noted that, under s 200(3) protection is given not only to a person who is summoned to appear at a hearing, but also a person who gives evidence or produces documents at an investigation.

54        Part 14 of the BSA provides for an appeal from certain decisions of the ACMA to the Administrative Appeals Tribunal (the AAT). Those decisions do not directly include a decision made by the ACMA in respect of cl 8(1)(g), however, the AAT does have jurisdiction under s 204 of the BSA to review the merits of a decision of the ACMA to suspend or cancel a licence. If the licence is suspended or cancelled by the ACMA on the basis of a breach of cl 8(1)(g), the underlying basis for the decision may itself be exposed for review by the AAT.

55        Section 209 deals with prosecutions for an offence against the BSA. Subsection 209(4) confers jurisdiction on this Court to hear and determine matters arising under the BSA.

    THE PRIMARY JUDGE’S REASONING SUMMARISED

56        The learned primary judge accepted the ACMA’s construction of cl 8(1)(g) and the related provisions of the BSA. At the heart of his Honour’s reasoning is the notion that, in determining whether or not a criminal offence has been committed under that provision, the ACMA is merely expressing an administrative opinion on the matter, which does not amount to a binding determination of criminal guilt or the imposition of a criminal sanction.

57        His Honour’s reasoning may be summarised as follows:

(a)    there are various ways in which the ACMA could reach a view that an offence had been committed. It could rely on a finding to that effect by a court exercising criminal jurisdiction (but, in that case, his Honour added that the ACMA would also have to afford the licensee an opportunity to be heard on whether the court’s finding should be accepted, as required by General Medical Council v Spackman [1943] AC 627 (Spackman)). Alternatively, the ACMA could act upon a licensee admitting to having committed an offence (which, incidentally, may suggest that the primary judge proceeded on the basis that cl 8(1)(g) should be construed as relating only to an offence committed by a licensee and not some other person). Finally, the primary judge saw no reason in either the text or context of cl 8(1)(g) why the ACMA itself could not express a view that an offence had been committed: [26];

(b)    any such review, opinion or judgment on the ACMA’s part that a licensee had committed an offence would not amount to a judgment as to the licensee’s criminal guilt but, rather, would merely involve “the ACMA, as an administrative body, reaching a conclusion on an issue relevant to its determination as to breach of a licence condition, while the ultimate determination of criminal guilt and any punishment can only rest with a court exercising judicial power”. The primary judge emphasised this point several times: [27]-[30];

(c)    the findings made by the ACMA which are contained in a report prepared pursuant to s 178(1) of the BSA do not have binding force: they may be “a stepping stone to some further action, by the ACMA or other bodies, but they do not of themselves amount to a determination of legal rights for or against a licensee, still less a binding determination of criminal guilt”: [28];

(d)    no significance attaches to the fact that s 178(2) confers a discretion on the ACMA to give a report to the DPP where the relevant conduct “could” constitute an offence under a Commonwealth law. That is because the ACMA’s determination can never be conclusive on the question of whether or not an offence has been committed and the choice of the word “could” is merely a careful recognition on the part of the legislature that, while the ACMA may form an administrative opinion on the matter, that is not a binding determination of criminal guilt: [29];

(e)    the position is not affected by the ACMA’s discretion under s 179(1) to publish a report because publication has no legal effect for similar reasons to those given above: [30];

(f)    s 179(3)(b) is significant and supports the ACMA’s construction because it reflects the legislature’s contemplation that the ACMA may consider at an administrative level whether an offence has been committed, such consideration may occur either before or contemporaneously with consideration of the same issue by a court: [31];

(g)    the ACMA’s construction is not inconsistent with the availability of the range of regulatory sanctions in Div 3 of Pt 10 of the BSA. That Division creates administrative powers to be exercised by the ACMA “which require no more than the formation of an opinion on the part of the ACMA as to a relevant breach”: [32];

(h)    a construction which required the ACMA to await a finding of guilt by a criminal court before it could, for example, issue a remedial direction under s 141 is inconsistent with the evident legislative intention that the ACMA could use that power to bring infringing conduct by a licensee to an expeditious end: [34];

(i)    the ACMA’s power under s 143 to suspend or cancel a licence for breach of a licence condition is not limited by any pre-requisite that there has been a judicial finding of breach: [35]; and

(j)    the possibility of criminal or civil penalty proceedings in relation to a breach does not derogate from the ACMA’s power to investigate and make findings in respect of an alleged breach of cl 8(1)(g) as and when it considers it necessary to do so. No significance attaches to the possibility of contradictory judicial determinations and the ACMA’s regulatory actions because s 179(3) contemplates that there may be an overlap in the timing of an investigation by the ACMA and the conduct of a criminal trial: [36]-[37].

58        Having rejected the appellant’s challenge to the ACMA’s construction of the relevant provisions of the BSA, the primary judge then turned to the appellant’s constitutional challenge. His Honour held that the ACMA’s conduct of an investigation did not involve the exercise of judicial power having regard to the legislative context in which the ACMA may have cause to investigate matters in cl 8(1)(g) and the consequences of the non-binding legal effect of it forming an opinion that a licensee has breached the condition. The more detailed reasoning supporting the primary judge’s conclusion on this matter is set out in [42]-[50] of his Honour’s reasons for judgment.

59        Finally, as to the issue of the claim that the ACMA’s investigation should be restrained because of the ongoing investigation by the AFP, his Honour rejected the argument by applying a series of cases which establish that an administrative process cannot constitute an interference with the due administration of justice in criminal proceedings which are yet to be commenced (see, for example, Edelsten v Richmond (1987) 11 NSWLR 51 at 58 per Hope JA, Priestley and Clarke JJA agreeing).

OUTLINE OF THE PARTIES’ RESPECTIVE CONTENTIONS

(a)    The appellant’s submissions outlined

60        In support of its appeal on the central issue, the appellant argued that the primary judge erred in his construction of the relevant provisions on the following grounds.

61        First, in construing cl 8(1)(g) it is significant that the provision contains no express reference to the ACMA being satisfied of, forming an opinion, or making a determination in respect of the relevant matters. The only relevant references to the ACMA forming an opinion are the overarching references in ss 5(1)(b) and (2).

62        Secondly, the provision posits two inquiries, the first concerning whether an underlying offence has been committed and the second as to whether in committing the offence the broadcasting service was used.

63        Thirdly, although the phrase “the commission of an offence” is not defined and may have different meanings in different statutory contexts, the core notion in the phrase is of “a legal conclusion, capable of being reached only once a competent decision-maker has considered whether the physical and fault elements of the underlying offence are satisfied, and that no available defence or exception applies”.

64        Fourthly, on its proper construction, the clause operates only if the underlying offence has been unarguably established as having been committed because only then will a question arise as to the possibility of the breach of the licence condition if the licensee uses its broadcasting service to commit the offence. The language of s 178(2) highlights this point and supports this construction. It uses the language of “conduct that could constitute an offence”, as opposed to the language in cl 8(1)(g) of “in the commission of an offence”. The use of the noun “commission” denotes the committing or perpetrating of a crime, as distinct from conduct that could constitute an offence.

65        Fifthly, the primary judge erred in not taking into account the relevance to the task of construction of the principle of legality. That principle requires that clear language be used to overthrow fundamental principles, such as maintenance of the separation between executive and judicial functions (citing Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J and Lee v NSW Crime Commission (2013) 302 ALR 363 (Lee) at [313] per Gageler and Keane JJ).

66        Sixthly, as an administrative agency with powers and functions which reflect its administrative character, the ACMA is ill-equipped to determine whether or not a criminal offence has been committed.

(b)    The intervener’s submissions outlined

67        The appellant’s construction was supported by Commercial Radio Australia Ltd (CRA), which sought and was granted leave under r 36.32 of the Federal Court Rules 2011 to intervene on condition that no order as to costs would be made in its favour or against it. The intervention was not opposed.

68        The CRA’s submissions on the proper construction of the relevant provisions may be summarised as follows:

(a)    The text of cl 8(1)(g) is important. It is predicated upon an underlying offence against another law having been committed. The only other licence condition in the BSA which requires compliance with another Act or law is cl 8(1)(a), which prohibits a licensee, “in contravention of” the TAP Act, from broadcasting a tobacco advertisement within the meaning of that Act. Section 13 of the TAP Act makes it an offence for a person to broadcast a tobacco advertisement otherwise than as permitted by s 14. The contrasting language of “a contravention” in cl 8(1)(a) and “the commission of an offence” in cl 8(1)(g) is important. Clause 8(1)(a) becomes otiose if cl 8(1)(g) authorises the ACMA to make findings in relation to any offence, because s 13 of the TAP Act provides for an offence of broadcasting a tobacco advertisement.

(b)    An inference should be drawn from s 178(2), which empowers the ACMA to give a report of the investigation to the DPP if the investigation relates to conduct that could constitute an offence under the BSA or another Commonwealth law, that the legislature did not contemplate that the ACMA would make findings about offences under any other laws.

(c)    Noting that there was no equivalent to cl 8(1)(g) in the preceding Broadcasting Act 1942 (Cth), the CRA says that it might have been expected that the extrinsic materials would have made some reference to an intention to introduce “a very substantial shift in broadcasting legislation” if it was intended to empower the ACMA to make findings that licensees (and perhaps other persons) have committed offences under any law of the Commonwealth, State or Territories and there is no such reference.

(c)    The respondent’s submissions outlined

69        The ACMA supported the primary judge’s reasoning and raised the following additional matters in support of its construction:

(a)    The ACMA is not merely an investigative body - it is a regulatory body which has a power to investigate but also has the function of taking enforcement action. The ACMA emphasised the potential potency of broadcasting services and the legislature’s intention that broadcasting licensees should operate within the law, a proposition which, it was submitted, favoured a broad construction of the ACMA’s powers.

(b)    Although there is no express reference in cl 8(1)(g) to the ACMA attaining a state of satisfaction as to the matters therein, that is not determinative having regard to the references in overarching provisions, such as ss 4(2) and 5, to “the opinion of the ACMA”. In effect, the ACMA contended that these overarching provisions, which operate by reference to the ACMA forming an opinion, filtered down to separate provisions, such as cl 8(1)(g), so as to incorporate in such provisions the notion of the ACMA forming an opinion on the relevant subject matter. The ACMA also drew attention to other provisions in the BSA, such as ss 6, 38A, 125, 149, 151 and 152, to the need for the ACMA to be “satisfied” of certain matters.

(c)    The ACMA placed particular emphasis on the terms of s 141, which provides for the ACMA’s power to issue a remedial direction. Subsection 141(1) is relevantly in the following terms:

If the ACMA is satisfied that a person who is:

…

(b)    a commercial radio broadcasting licensee; or

....

has breached, or is breaching, a condition of the licence, the ACMA may, by written notice given to the person, direct the person to take action directed towards ensuring that the person does not breach that condition, or is unlikely to breach that condition, in the future.

The ACMA relies on this provision as indicating that its operation turns not on the satisfaction of a court in relation to a breach, but on the ACMA’s satisfaction that a breach has occurred or is occurring.

(d)    Similarly, the ACMA points to its power under s 143, after giving notice, to suspend or cancel a licence for breach of either a s 141 notice or a licence condition. It submits that, as long as it gives notice, it is able to take action under this provision without having to wait for any judicial finding.

(e)    The ACMA also emphasises that cl 8(1)(g) does not depend upon a conviction for an offence, but only refers to the commission of an offence. And even where there is a conviction, the ACMA contends that “the facts can be fully traversed in the administrative process, including by denying the essential facts upon which an extant conviction is based”, citing Saffron v Commissioner of Taxation (1991) 30 FCR 578 at 581-582 per Davies J, 590-592 per Lockhart J and 600-601 per Beaumont J in dissent (Saffron). The ACMA also supported the primary judge’s finding that, on the authority of Spackman, where a court has found that an offence has been committed, the ACMA can act upon that conviction as long as it affords the licensee an opportunity to be heard on whether the court’s finding should be accepted.

(f)    The licence condition imposed by cl 8(1)(g) should be construed as referring only to a relevant offence being committed by the licensee and not any person because that construction is consistent with the focus of the balance of the provision, which relates to whether the licensee has used its broadcasting service in the commission of a relevant offence.

(g)    Despite the different language of cll 8(1)(a) and (g), the provisions do not operate differentially for the purposes of determining whether there has been a breach.

(h)    The principle of legality has no application because a finding of breach of the relevant condition by the ACMA does not involve a finding of criminal guilt and merely reflects the administrative outcome of the conduct of an investigation by the ACMA in the performance of its broadcasting functions and related powers. Any report by the ACMA is not given binding force by the BSA and, even if published, does not amount to an adjudication of criminal guilt as would a court finding that an offence has been committed. In any event, the ACMA submits that there is no ambiguity in the relevant provisions so as to attract the principle of legality.

(i)    Sections 179(3) and 199(3) are consistent with a broad construction of the particular licence condition, because they are demonstrative of an intention to permit the ACMA’s consideration of matters which may involve the commission of an offence to proceed on an administrative level before, or at the same time as, such matters are before a court exercising criminal jurisdiction.

(j)    The ACMA’s view of its powers is consistent with the powers of the Australian Securities and Investments Commission under s 16 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act).

70        The ACMA also made submissions in support of the primary judge’s conclusion that the ACMA is not exercising judicial power when it investigates a possible breach of cl 8(1)(g).

71        Finally, as to the appellant’s formal submission concerning interference with the due administration of criminal justice, the ACMA drew the Court’s attention to the High Court’s recent decision in Lee, as reaffirming the principle that proceedings must be on foot.

RESOLUTION OF THE APPEAL

72        As with many issues of statutory construction, reasonable minds may differ on the better construction of a particular provision. That is the case here with the central issue. For the following reasons, however, we respectfully consider that the primary judge erred in upholding the ACMA’s view of its relevant power.

73        First, it is important to keep firmly in mind the following statement by the High Court in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ (footnotes omitted):

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.

74        Secondly, in implementing that approach, the following relevant features of the text of the licence condition imposed by cl 8(1)(g) are notable.

(a)    It applies to the commission of an offence, not against the BSA, but against any other Commonwealth Act or a law of a State or Territory. The range of potential offences is very wide and encompasses any Commonwealth law apart from the BSA and any State or Territory law, which would in almost all cases be unrelated to broadcasting except by virtue of the use the broadcasting service in the commission of it.

(b)    Assuming for the moment that the provision relates only to the conduct of a licensee and not any other person (which is the basis on which the primary judge has apparently proceeded), the condition is necessarily forward-looking, however, the question whether or not the condition has been breached will necessarily look to the licensee’s past conduct.

(c)    There are two essential parts to the provision. The first is whether (on the relevant assumption) the licensee has committed a criminal offence against either another Commonwealth Act (apart from the BSA) or any law of a State or Territory. The second is whether the licensee used its broadcasting service in committing such an offence. Only if such an offence has been committed does the question arise whether the licensee has used its broadcasting service in the commission of that offence.

75        Whether or not the broadcasting service has been used in that way is a question of fact which the ACMA is well able to determine.

76        The position is different, however, with regard to the first matter. As a matter of general principle it is not normally to be expected that an administrative body such as the ACMA will determine whether or not particular conduct constitutes the commission of a relevant offence. It may be open to the legislature, subject to relevant constitutional constraints, to make clear that such a body is empowered to undertake that or a similar task. But under our legal system the determination of whether or not a person has committed a criminal offence can generally only be determined by a court exercising criminal jurisdiction. That fundamental point was emphasised by Brennan, Deane and Dawson JJ in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 27 (Lim):

There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially and exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and “could not be excluded from” the judicial power of the Commonwealth. That being so, Ch. III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive.

(footnotes omitted)

77        The learned primary judge was well aware of these constitutional constraints. As noted above, his Honour gave careful reasons why he rejected the appellant’s alternative argument that, if the ACMA’s view of the relevant statutory revisions was correct, those provisions are invalid as being inconsistent with Ch III of the Constitution. But that alternative argument only arises if the ACMA’s construction of those provisions is correct. As noted above, the learned primary judge’s acceptance of the ACMA’s construction turned largely on his Honour’s conclusion that, in determining that the licensee had breached cl 8(1)(g), the ACMA was not making a finding on criminal guilt but, rather, was merely forming and expressing “its opinion on the question administratively”.

78        In our view, that approach presents several difficulties. First, it necessarily requires that cl 8(1)(g) be read as though it turns upon the ACMA merely forming an opinion on the two matters expressed therein, namely (a) the licensee using its broadcasting service and (b) in conduct which constitutes the commission of an offence against another Commonwealth Act or any State or Territory law. The text of cl 8(1)(g) does not state that the ACMA is to form an opinion on whether or not a relevant offence has been committed, let alone an opinion which is based on the balance of probabilities and not the normal criminal standard of beyond reasonable doubt. We see no warrant for reading those words into the text as the ACMA did, and with which the learned primary judge implicitly agreed in accepting the totality of the ACMA’s view of both its power and the proper construction of the relevant provisions.

79        Secondly, it seems to us that when licence conditions are read in conjunction with the provisions in Div 3 of Pt 10 dealing with action which may be taken in relation to a licensee’s breach of a licence condition, the legislative scheme is one which requires the ACMA to make relevant findings (and not merely express opinions) before it can exercise its regulatory powers of enforcement. For example, the ACMA’s power under s 141 to issue a remedial direction turns on the ACMA being “satisfied” that a licensee has breached, or is breaching, the condition of its licence. To have such a state of satisfaction, the ACMA will necessarily have had to make relevant findings as to whether a licensee has breached, or is breaching, a licence condition. The ACMA’s power under s 143 to suspend or cancel a licence goes further, is not conditioned by the ACMA having a particular state of satisfaction, but rather turns on a finding having been made, presumably by the ACMA, that a licensee has either failed to comply with a relevant remedial notice issued by the ACMA under s 141 or a finding that the licensee has breached a condition of its licence (without any remedial direction having been issued).

80        Thirdly, we do not consider that the issue of construction is determined by, in effect, diluting cl 8(1)(g) and reading it as though it simply requires the ACMA to come to a non-binding “administrative opinion” as to whether or not the licensee has committed a relevant offence (assuming that the provision is limited to an offence committed only by the licensee). In our view, primacy should be given to the text of the provision. Its operation depends upon findings being made, not the expression of an opinion. The ordinary meaning of the phrase “the commission of an offence” carries with it, in our legal system, the connotation that a court exercising criminal jurisdiction has found that an offence has been committed. The legislation does not, in its terms, envisage that the ACMA will itself make any form of determination in respect of that particular matter. That is because, consistently with the observations in Lim set out above, that matter is one for determination only by a criminal court. If such a body makes such a determination it is then open to the ACMA to conduct an investigation into the question whether the licensee used its broadcasting service in committing the relevant offence. If it is found to have committed the offence, the licence condition may have been breached and the ACMA will determine whether it has been and what, if any, remedial action should be taken against the licensee as authorised by the BSA.

81        Fourthly, and in any event, we do not consider that the distinction between expressing an opinion and stating a finding as to whether an offence has been committed has any particular significance to the central issue of construction. In our view, the issue of construction is not assisted one way or the other by the indisputable fact that an expression of administrative opinion by the ACMA that an offence has been committed would fall well short of amounting to a binding determination of criminal guilt. The following observations by Gleeson CJ in Greiner v Independent Commission Against Corruption (1992) 28 NSWLR 125 at 147, although directed to a different statutory authority, are equally apposite to the ACMA (case references omitted):

The publication of findings of Royal Commissions or Commissions such as the present defendant, or the Criminal Justice Commission of Queensland, although they do not affect or create legal rights or obligations, can have the most far-reaching consequences for the reputation of citizens. Both the High Court of Australia and the Privy Council in recent years have made it clear that reputation is now regarded as an interest capable of attracting judicial intervention to see that the requirements of the law are observed… .

82        Ipp J made similar observations in Parker v Miller [1998] WASCA 124 (in concluding that neither the Anti-Corruption Commission (the ACC) nor a Special Investigator conducting an investigation under the Anti-Corruption Commission Act 1988 (WA) was empowered to make findings that police officers had been guilty of inter alia criminal conduct (the Findings)):

The ACC contended that the Findings were merely expressions of opinion and not findings of guilt in the legal sense. However, the fact that the Findings were expressions of opinion is not material. The verdict of the jury, or the judgment of a properly constituted judicial officer, is, in effect, merely the expression of the opinion of the jury or the judicial officer. The unstated implication of the proposition that the Findings were not findings of guilt in the legal sense is that, because the Findings have no force in law - unlike findings of guilt by a jury or other properly constituted court - they have no material effect. But the Findings, if published, are capable of causing far-reaching prejudice to those affected thereby; the prejudice would result from the weight that others may attach thereto. As can be seen, in the present case, the Commissioner acted immediately upon the Findings to suspend five of the applicants and to direct the sixth applicant to take paid leave. The harm brought about by the suspension is obvious. There is also the potential of harm to the reputation of the applicants. For these reasons, the prerogative relief is available against the ACC… .

83        Those observations have equal force here in circumstances where the ACMA has a discretion whether or not to publish a report which contains a finding or expression of opinion that the licensee has committed a criminal offence and such a finding triggers a range of possible sanctions, including suspension or cancellation of the broadcasting licence.

84        Fifthly, as the ACMA emphasises, cl 8(1)(g) refers to “the commission of an offence” and not to a “conviction”. If the latter term had been used there would be little or no doubt that a conviction had to be entered in a criminal proceeding. The omission of any reference in cl 8(1)(g) to a conviction suggests that the ACMA could find that the particular licence condition has been breached in circumstances where, for example, a person has been found guilty of a relevant offence but no conviction is entered (under a provision such as s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) or where a person has admitted the relevant offence and the matter is yet to proceed to a conviction. In our view, however, the fact that cl 8(1)(g) operates on the basis of a finding of a relevant offence having been committed as opposed to there being a conviction does not establish that the legislature intended the ACMA to make such a finding.

85        Sixthly, we consider that s 140 of the BSA provides further support for a construction which leaves the determination of whether or not an offence has been committed for the purposes of cl 8(1)(g) to a criminal court. Section 140 deals with continuing offences and provides as follows:

A person who breaches section 139 is guilty of a separate offence in respect of each day (including a day of a conviction under this section or any subsequent day) during which the breach continues. (Emphasis added).

86        Section 139 creates various offences, including in respect of a commercial radio broadcasting licensee who breaches the conditions of its licence set out in cl 8(1) of Sch 2. In the context of commercial radio broadcasting licensees, a distinction is drawn in ss 139(3) and (3A) between different licence conditions. As is apparent from the following text of those provisions, the two provisions refer respectively to a person being “guilty of an offence” and a person who “commits an offence”:

(3)    A person is guilty of an offence if:

(a)    the person is a commercial radio broadcasting licensee; and

(b)    the person engages in conduct; and

(c)    the person’s conduct breaches a condition of the licence set out in subclause 8(1) (other than paragraphs 8(1)(ha)) of Schedule 2.

Penalty: 500 penalty units.

(3A)    A person commits an offence if:

        (a)    the person is a commercial radio broadcasting licensee; and

        (b)    the person engages in conduct; and

(c)    the person’s conduct breaches the condition of the licence set out in paragraph 8(1)(ha) of Schedule 2.

Penalty: 60 penalty units.

87        The distinction which is drawn in those provisions may be explicable by the fact that the latter relates to an offence of strict liability. The appellant also suggested that the distinction simply reflects different terminology which was used when the BSA was first enacted, compared with the terminology used in subsequent amendments. In any event, the significant point is that s 140 operates by reference to a breach of any of the subsections in s 139, including both ss 139(3) and (3A), and s 140 expressly refers to “a conviction under this section”, which necessarily contemplates the involvement of a criminal court in making such a conviction and not the ACMA. That is not to say that the ACMA must always await a conviction by a criminal court in respect of a relevant offence before it can consider whether there has been a breach of the licence condition in cl 8(1)(g). As noted above, the ACMA’s power can also be enlivened by a finding of a criminal court that a person has committed a relevant offence but no conviction is entered.

88        Seventhly, we consider that the ACMA’s reliance on both Saffron and Spackman is misdirected. As to the Full Court’s decision in Saffron, that case determined the question whether it was an abuse of process for a taxpayer in an appeal under the then Pt V of the Income Tax Assessment Act 1936 (Cth) (which appeal was instituted prior to a criminal trial which resulted in the appellant’s conviction for conspiracy to defraud the Commonwealth), to give evidence as to facts upon which his income should be assessed which facts contradicted matters of fact upon which the conviction was based. Davies and Lockhart JJ held that there was no such abuse. Both their Honours emphasised the distinction between a case where a conviction is the foundation for the exercise of a power and a case where a conviction may be relevant to the exercise of a power but is not a precondition to that exercise. After reviewing relevant authority, Davies J stated at 582 (to similar effect see Lockhart J at 592):

Those cases establish that, where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then, even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotory of Supreme Court of New South Wales (1957) 97 CLR 279.

89        In our view, Saffron provides no support for the ACMA’s construction. Saffron was concerned with different legislation and dealt with a different issue, namely the admissibility of evidence in a tax appeal. In contrast, the central question here is whether the ACMA is authorised to make a finding that a relevant offence has been committed for the purposes of enforcing cl 8(1)(g). If, on its proper construction, only a criminal court can make such a finding we consider that, on the authority of cases such as Saffron and the other authorities referred to therein by Davies J (which include Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441 (Gungor)), in determining whether the licence condition in cl 8(1)(g) has been breached by the licensee using its broadcasting service in the commission of a relevant offence, the ACMA would not be entitled to challenge either a conviction or a finding by a criminal court that a criminal offence had been committed. The ACMA would, however, be entitled to take into account relevant facts which underpinned the criminal court’s conviction or finding if those facts were relevant to the exercise of the ACMA’s discretionary powers, such as the discretion it has under s 143 of the BSA whether or not to suspend or cancel a licence.

90        As to the relevance of the House of Lords decision in Spackman, as noted above, the primary judge accepted the ACMA’s contention that, in circumstances where a court exercising criminal jurisdiction has entered a conviction, the ACMA could rely on that conviction subject, however, to procedural fairness being afforded to the licensee to be heard on the issue whether the court’s finding should be accepted. We respectfully agree that such a conviction could be relied upon by the ACMA in applying cl 8(1)(g) and that procedural fairness obligations would also have to be met. We respectfully disagree, however, with any suggestion that, in an administrative process in which the exercise of power is founded on a conviction, the essential facts upon which the conviction is based could be traversed with a view to setting the conviction at nought. That would be inconsistent with Saffron and the cases referred to therein, including Gungor. Where, however, the exercise of power is not founded on a conviction, all relevant matters could be taken into account in the exercise of that power, including the facts on which the conviction was based (see Saffron at 582).

91        Finally, we reject the ACMA’s submission that the central issue of construction is assisted by reference to s 16 of the ASIC Act. Subsection 16(1) is relevantly in the following terms:

Interim report on investigation

(1)    Where, in the course of an investigation under this Division, ASIC forms the opinion that:

(a)    a serious contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, has been committed; or

(b)    to prepare an interim report about the investigation would enable or assist the protection, preservation or prompt recovery of property; or

(c)    there is an urgent need for the corporations legislation (other than the excluded provisions) to be amended;

it must prepare an interim report that relates to the investigation and sets out:

(d)    if paragraph (a) applies--its findings about the contravention, and the evidence and other material on which those findings are based; or

(e)    if paragraph (b) applies--such matters as, in its opinion, will so enable or assist; or

(f)    if paragraph (c) applies--its opinion about amendment of that legislation, and its reasons for that opinion;

and such other matters relating to, or arising out of, the investigation as it thinks fit.

…

92        Section 18 of the ASIC Act is a related provision to s 16. It is in the following terms:

Distribution of report

(1)    As soon as practicable after preparing a report under this Division, ASIC must give a copy of the report to the Minister.

(2)    Where a report, or part of a report, under this Division relates to a serious contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, ASIC may give a copy of the whole or a part of the report to:

(a)    the Australian Federal Police; or

(b)    the Chief Executive Officer of the Australian Crime Commission or a member of the staff of the ACC (within the meaning of the Australian Crime Commission Act 2002); or

(c)    the Director of Public Prosecutions; or

(d)    a prescribed agency.

(3)    Where a report, or part of a report, under this Division relates to a person's affairs to a material extent, ASIC may, at the person's request or of its own motion, give to the person a copy of the report or of part of the report.

(4)    The Minister may cause the whole or a part of a report under this Division to be printed and published.

93        These provisions in the ASIC Act provide no material assistance in construing the relevant provisions of the BSA having regard to their significantly different text and context.

94        In our view, although there are some contextual matters which favour the primary judge’s broad construction as set out in his Honour’s reasons for judgment, on balance, the weight of those matters favours a narrower construction. That narrower construction is to the effect that the ACMA is not empowered to make a finding that a criminal offence has been committed.

95        First, s 178(2) of the BSA is consistent with a narrower construction. As noted above, that provision empowers the ACMA to give a copy of a report (or part thereof) to the DPP if the report “on an investigation relates to conduct that could constitute an offence under this Act or another law of the Commonwealth”. Significantly, the focus is on conduct which could constitute an offence under those Commonwealth laws, not on any finding by the ACMA that, in its view or opinion, a criminal offence has been committed against any such law.

96        The plain object of s 178(2) is to involve the DPP in deciding whether or not to commence a prosecution in relation to any such offence and not simply leave the matter in the hands of the ACMA, including it forming and expressing an administrative opinion on the question whether or not such an offence has been committed.

97        Secondly, the legislature’s understandable concern to ensure that the fair trial of any person not be prejudiced by publishing the whole or part of an ACMA report, as manifested in s 179(3), does not suggest that it was envisaged that the ACMA would make any findings itself on criminal liability. The purpose of the provision is adequately explained by the same concern which underpins s 178(2), namely that an investigation leading to a report could relate to conduct which might constitute an offence against a Commonwealth law.

98        Thirdly, it is at least equally – if not more – improbable that the legislature intended that the ACMA be empowered to make findings of the liability of a licensee to prosecution or conviction for an offence against any State or Territory laws. Although the BSA contains no express provision which empowers the ACMA to furnish a copy of a report by it relating to conduct which could constitute an offence under a State or Territory law to the relevant law enforcement authority in the relevant State or Territory jurisdiction, that omission provides no indication of an intention that the ACMA itself would make findings on those matters. Subsection 179(3) is expressed in sufficiently wide terms to indicate that the qualification on the ACMA’s discretion to publish or disclose a report where the consequence would be likely to prejudice the fair trial of the person relates to a trial for an offence against a law of the Commonwealth or any State or Territory. This provision reinforces the ACMA’s own limited role and functions where criminal conduct may be involved, while requiring that the ACMA take appropriate steps so as to avoid any of its actions in publishing or disclosing a report prejudicing a person’s right to a fair trial in a court exercising criminal law jurisdiction.

99        Fourthly, as noted above, it appears that the primary judge may have proceeded on the basis that cl 8(1)(g) relates only to the commission of an offence by a licensee. We respectfully disagree with any such construction of cl 8(1)(g). In its express terms the provision is not so limited and we see no warrant for so confining it. If, on its correct construction, the provision applies to the licensee’s use of its broadcasting service in the commission of a relevant offence by any person, including but not limited to the licensee, the improbability of the legislature intending the ACMA to make a determination or even express an opinion as to whether a person who is not the licensee has committed a criminal offence becomes all the more stark.

100        Fifthly, and again with great respect to the primary judge, we take a different view of the significance of the word “could” in s 178(2) of the BSA. At [29], his Honour accepted the ACMA’s submission:

… that the choice of the word “could” is no more than a careful recognition on the part of the legislature that, while the ACMA may form its opinion on the question administratively, that opinion:

(1)    Does not itself determine the question of criminal guilt; and

(2)    can in no way bind the prosecuting authority as to whether it should proceed to launch the criminal process against the licensee or any other person who may be involved in the offence or the licence breach.

101        In our respectful opinion, the choice of the word “could” simply recognises the possibility that, in the course of conducting an investigation and preparing a report on whether a licensee has breached a licence condition, the ACMA may become aware of conduct which, objectively viewed, might amount to criminal conduct. The report prepared by the ACMA may or may not contain an expression of the ACMA’s opinion on the matter but, in either case, the ACMA is empowered to provide the DPP with a copy of its report or part thereof. The plain expectation is that, the matter having been drawn to his or her attention by the ACMA, the DPP, as the appropriate Commonwealth officer, will then determine whether or not to prosecute.

102        The relevant significance of the fact that this provision uses the word “could” serves to underline that the legislation does not contemplate that the ACMA will make its own determination on the issue whether or not such a criminal offence has in fact been committed. At most, the ACMA is empowered in an appropriate case to draw the possibility of an offence having been committed to the attention of the proper prosecuting authority.

103        To express the matter another way, the choice of the word “could” implicitly recognises that it is not the ACMA’s role to make an administrative determination as to whether or not an offence has actually been committed. That is so irrespective of the subject matter under investigation. The question whether or not criminal conduct has occurred is more likely to arise in an investigation by the ACMA into the question whether a licensee has breached the licence condition imposed by cl 8(1)(a) (simply because, in its own terms, that condition relates to criminal offences), but it is possible that in the course of conducting an investigation into some other matter, including but not limited to the breach of some other licence condition, the ACMA may become aware of conduct which might constitute a criminal offence. None of that suggests, however, that the legislature intended the ACMA to make some sort of finding or express an administrative opinion as to whether a criminal offence has actually been committed.

104        Sixthly, acceptance of the ACMA’s broad construction of the relevant provisions is capable of producing practical outcomes which can scarcely have been intended by the Parliament, as is illustrated by the following hypothetical case. On that construction, the ACMA is entitled to determine that the licensee has breached cl 8(1)(g) and, in an appropriate case, then cancel the relevant broadcasting service licence (after affording the licensee procedural fairness and complying with other relevant legislative requirements). Let it be assumed that several months later and at the conclusion of a criminal prosecution of the licensee for committing the relevant offence, the licensee is acquitted. A licensee in that situation will derive no comfort from understanding that the ACMA has simply expressed an administrative opinion on the question whether a criminal offence had been committed by it. Nor would it be comforted by the fact that it has a right of appeal to the AAT against the cancellation decision. There is no certainty that the AAT would grant a stay of the cancellation decision.

105        Seventhly, regard must be given to the different procedures and protections which are available to the ACMA, as opposed to a court exercising criminal jurisdiction. The powers and procedures available to the ACMA in conducting an investigation and/or a hearing are outlined above. They are profoundly different from the powers, procedures and protections which would apply in a criminal court. For example, the licensee could not be summoned by the prosecution to give evidence nor compelled to do so. Absent statutory abrogation, a natural person is entitled in criminal proceedings to the benefit of the privilege against self-incrimination. And in a criminal prosecution the rules of evidence would apply and the prosecution would be required to establish guilt by reference to the higher standard of beyond reasonable doubt. Moreover, in such proceedings, the prosecutor would also bear certain ethical obligations which have no counterparts in the ACMA. Another significant difference relates to the composition of the ACMA’s membership compared with that of a court administering the criminal law. As the appellant points out, there are no express statutory qualifications for eligibility to be appointed a member of the ACMA. Its members need have no legal qualifications. Finally, it is significant that the ACMA’s procedural powers are subject to any binding direction given by the Minister under either ss 171 or 183 relating to the conduct of certain investigations or the holding of certain hearings respectively.

106        In our opinion, all these matters serve to underline the unlikelihood that, in the absence of clear language, the legislature intended, by the words of cl 8(1)(g) and related provisions, to confer upon the ACMA a power to make an administrative determination or finding that a licensee has committed a criminal offence.

107        We also consider that the views expressed above are consistent with the approach taken in Balog v Independent Commission Against Corruption (1990) 169 CLR 625 (Balog), where the High Court was dealing with similar issues but in respect of different legislation. Apparently, the primary judge’s attention was not drawn to the potential relevance of Balog. The primary question in Balog was whether or not the New South Wales Independent Commission Against Corruption (ICAC) was entitled in a report of its investigation into alleged corrupt conduct to include a statement of any finding by it that any person was or may have been guilty of a criminal offence or corrupt conduct. The High Court held that it was not. This conclusion flowed from a close analysis of the relevant provisions of the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act), which in some respects are different from the relevant provisions of the BSA. In particular, it is relevant to note that ICAC’s principal function was investigative, whereas the ACMA is empowered not only to conduct investigations, but also to make determinations and, in appropriate circumstances, enforce relevant provisions of the BSA, including by suspending or cancelling a licence.

108        The ICAC’s role and function as an investigative body is reflected in various provisions of the ICAC Act, including s 74. That provision dealt with the ICAC’s power to publish reports on an investigation carried out by it and was in the following terms:

(1)    The Commission may prepare reports in relation to any matter that has been or is the subject of an investigation.

(2)    The Commission shall prepare reports in relation to a matter referred to the Commission by both Houses of Parliament, as directed by those Houses.

(3)    The Commission shall prepare reports in relation to matters as to which the Commission has conducted a public hearing, unless the Houses of Parliament have given different directions under subsection (2).

(4)    The Commission shall furnish reports prepared under this section to the Presiding Officer of each House of Parliament.

(5)    A report may include a statement of the Commission’s findings as to whether there is or was any evidence or sufficient evidence warranting consideration of:

(a)    the prosecution of a specified person for a specified offence; or

(b)    the taking of action against a specified person for a specified disciplinary offence; or

(c)    the taking of action against a specified public official on specified grounds, with a view to dismissing, dispensing with the services of or otherwise terminating the services of the public official.

(6)    A report shall include such a statement in relation to the persons substantially and directly interested in the subject-matter of the investigation concerned or persons named in the reference made by both Houses of Parliament.

(7)    A report required under this section shall be furnished as soon as possible after the Commission has concluded its involvement in the matter.

(8)    The Commission may defer making a report under this section if it is satisfied that it is desirable to do so in the public interest, except as regards a matter referred to the Commission by both Houses of Parliament.

(9)    In determining whether it is desirable in the public interest to defer making a report under this section, the Commission shall have regard as to whether or not the matter is before a court.

109        In holding that the ICAC was not empowered to make findings as to the liability of the person to conviction or even prosecution for any criminal offence, the High Court placed particular emphasis on the text of s 74(5), as is evident from the following passage in Balog at 633:

If the legislature had intended, by allowing or requiring the Commission to report, to confer upon it a power to express a finding concerning the criminal liability of a specified person, then it would have been unnecessary to include sub-s. (5) of s. 74. The reason for the inclusion of the sub-section in the limited form in which it is expressed is not difficult to discern. The expression of a finding of guilt or innocence of an offence or even of a prima facie case against an individual, in a report which is bound to be made public, must be likely to have a damaging effect on the reputation of the person concerned. And whilst such a finding may not necessarily have a tendency to interfere with the due administration of justice in the event of a subsequent trial, the possibility cannot be disregarded. Under s. 18, the Commission may furnish reports in connection with an investigation despite any proceedings that may be before any court (presumably proceedings in relation to a matter under investigation). But in the event of there being proceedings before a court, the Commission is, under the same section, to defer making a report to Parliament during the currency of the proceedings. Clearly the legislature was aware of the dangers of a report which would be made public and was concerned to protect proceedings before a court from interference arising from the publication of such a report. The concern of the legislature for the potentially damaging effect of a report is also to be seen in s. 74 itself. Sub-section (8) of that section allows the Commission to defer making a report (not being a report as to a matter referred by Parliament) where it is desirable to do so in the public interest, particularly, under sub-s. (9), where the matter is before a court. It would at least be consistent with that concern to conclude that the relevant limits of s. 74 are defined by sub-s. (5) and to construe the section as conferring no other power to make findings as to the liability of an individual to conviction or even prosecution.

110        In our opinion, the views we have expressed above regarding the proper construction of cl 8(1)(g) and related provisions involve the application of ordinary principles of interpretation consistent with those emphasised in that passage from Balog.

111        The following further observations in Balog at 635-636 are also apposite:

Whilst in our view the conclusions we have expressed flow from the application to the Act of the ordinary principles of interpretation, we would add the following observations lest we be thought to have taken unduly restrictive view of the Commission’s functions…. If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred: Smorgon v Australia and New Zealand Banking Group Ltd. See also Hamilton v Oades; Potter v Minahan; Wade v New South Wales Rutile Mining Co. Pty Ltd; and Baker v Campbell. (Citations omitted).

112        This approach to statutory interpretation is sometimes described as the principle of legality (see generally Gleeson CJ’s analysis of the principle in Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309 at [19]-[21]). In Lee, which raised the question whether relevant state legislation authorised the compulsory examination of persons in respect of whom criminal trials were pending, French CJ described the principle at [3] in the following terms (see also at [126] per Crennan J):

In some cases, a person under statutory examination may already be facing criminal charges and find himself or herself being asked questions touching matters the subject of those charges. Whether a statute authorises a compulsory interrogation of an accused person in those circumstances is a question of statutory interpretation. The courts do not interpret a statute to permit such questioning unless it is expressly authorised or permitted as a matter of necessary implication. When the text, context and purpose of the statute permit a choice to be made, the courts will choose that interpretation which avoids or minimises the adverse impact of the statute upon common law rights and freedoms. However, subject to constitutional limits, where a Parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected.

113        The history of the principle of legality was traced by Gageler and Keane JJ in Lee at [307]-[312] and their Honours made the following important observations at [313] and [314]:

Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.

The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has among its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme to invoke a general presumption against the very thing which the legislation sets out to achieve”. (Footnotes omitted).

114        In our view, the ACMA’s construction of the relevant provisions, if accepted, would derogate from an important principle in the Australian legal system to the effect that the determination of whether or not a person has committed a criminal offence is vested in courts exercising criminal jurisdiction, and not persons or bodies exercising executive power. Furthermore, for the reasons given above, while accepting that the ACMA’s powers and functions are not confined to investigation and extend to enforcement, we do not consider that the BSA manifests a clear intention to modify or depart from that principle by empowering the ACMA to make a finding or express an opinion that any person has committed a criminal offence.

115        Rejection of the ACMA’s construction does not denude cl 8(1)(g) of the BSA of meaningful effect. It simply means that the application and enforcement of that provision by the ACMA depends either on the licensee making an admission that it has used its broadcasting service in the commission of a relevant offence or a Court exercising criminal jurisdiction first finding that a relevant offence has been committed.

116        Having regard to our conclusion above that the appeal should be allowed on the basis of the proper construction of the relevant provisions, it is both unnecessary and inappropriate to determine the constitutional issue (see Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [248]-[252] per Gummow and Hayne JJ and Chief Executive Officer of Customs v El Hajje (2005) 224 CLR 159 at [28] per McHugh, Gummow, Hayne and Heydon JJ).

117        Finally, as the appellant acknowledged, the current state of authority in Australia is that it is essential to the exercise of jurisdiction to grant an injunction restraining an administrative process on the basis that it would interfere with the due administration of criminal justice that the criminal proceedings be on foot. In those circumstances, the primary judge was undoubtedly correct to reject this aspect of the judicial review challenge. The appellant made clear that it raised this ground of appeal to preserve its right to test the matter further in a higher place.

118        For these reasons we would allow the appeal, set aside the orders below, and in lieu thereof order that the ACMA’s determination made on or about 20 February 2014 to the effect that the appellant has breached the licence condition in cl 8(1)(g) be set aside. We will also order the ACMA to pay Today FM’s costs of both the appeal and below. There will be no order as to costs in respect of the intervener.

119        In the event that either the appellant or respondent considers that any additional relief is required to give effect to these reasons for judgment, we grant leave to apply for appropriate orders.

Associate:

Dated:    17 March 2014