FEDERAL COURT OF AUSTRALIA

Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

INTRODUCTION AND BACKGROUND

1        On 4 December 2012, the applicant (“Today FM”) recorded a telephone call between two presenters of Today FM’s “Summer 30” 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 inpatient being treated for acute morning sickness. One of the staff, apparently accepting that the presenters were indeed the Queen and Prince Charles, provided certain details about the Duchess’ condition.

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

3        Today FM holds a commercial radio broadcasting licence, number 3032, under the Broadcasting Services Act 1992 (Cth) (“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, including, in cl 8(1)(g):

[T]he licencee 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;

4        On 13 December 2012, the respondent (“ACMA”) formally notified Today FM 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 Today FM had complied with the Sch 2, cl 8(1)(g) licence condition; and

(b)    invited Today FM 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, and specifically, s 11(1) of the Surveillance Devices Act 2007 (NSW) (“SDA”).

5        On 4 June 2013, the ACMA provided Today FM with a confidential copy of Preliminary Investigation Report No. 2928 (“Preliminary Investigation Report”).

6        In the Preliminary Investigation Report, the ACMA – having observed that it considers that offences established by the SDA may be relevant for the purposes of assessing the licensee’s compliance with the Sch 2, 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 of the SDA, the licensee has breached a condition of its licence set out in paragraph 8(1)(g) of Schedule 2 to the BSA.

7        At page 21 of the Preliminary Investigation Report, the ACMA provides this description of its apprehended jurisdiction:

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 the formation of such an opinion by it, or reliance on that opinion for the purpose of taking 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.

THE ORIGINATING APPLICATION

8        By originating application dated 18 June 2013, Today FM seeks 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) (“ACMA Act”). Today FM also seeks interlocutory and final injunctive relief, restraining the ACMA (amongst other things) from making any determination that Today FM has committed any criminal offence and, specifically, offences under the SDA.

9        Today FM bases its claim on the following propositions:

(a)    First, on their proper construction, the BSA and the ACMA Act do not authorise the ACMA to make findings that a licensee has committed a criminal offence;

(b)    secondly, if, contrary to (a), the BSA and the ACMA Act do authorise the ACMA to make such findings, the provisions are invalid, in providing for the exercise of judicial power otherwise than in conformity with Ch III of the Constitution; and

(c)    thirdly, and independently of the preceding bases, the finding proposed by the ACMA will interfere, or at least carries a real risk of interference, with the administration of justice in a criminal proceeding and the Court would accordingly restrain it.

10        By its primary case, Today FM seeks a declaration that, where the ACMA conducts an investigation pursuant to s 170 of the BSA and prepares a report on such an investigation pursuant to s 178(1), upon their proper construction, ss 10 and 12 of the ACMA Act, and ss 5, 178(2) and Sch 2, Pt 4, cl 8(1)(g) of the BSA, operate so that the ACMA is not authorised to:

(a)    Find that the holder of a commercial radio broadcasting licence has breached the licence condition prescribed by Sch 2, Pt 4, cl 8(1)(g) of the BSA; and/or

(b)    take any action, pursuant to Pt 10, Div 3 of the BSA, in relation to any alleged breach by a licensee of the licence condition prescribed by Sch 2, Pt 4, cl 8(l)(g) of the BSA,

unless and until a competent court adjudicates that the licensee has used the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory.

11        If this construction is accepted, Today FM seeks a further declaration to the effect that the ACMA is not authorised to find that Today FM:

(a)    In recording the telephone call, contravened s 7(1) of the SDA;

(b)    in broadcasting the recording of the telephone call, contravened s 11(1) of the SDA;

(c)    as a result of paras (a) and (b), used its broadcasting service in the commission of an offence under s 11(1) of the SDA; and

(d)    as a consequence of the matters in paras (a) – (c), breached the cl 8(1)(g) licence condition.

12        In the alternative, if upon their proper construction, ss 10 and 12 of the ACMA Act and ss 5, 170, 178 and Sch 2, Pt 4, cl 8(1)(g) of the BSA, operate so that the ACMA is authorised to:

(a)    Find that the holder of a commercial radio broadcasting licence has breached the licence condition prescribed by Sch 2, Pt 4, cl 8(1)(g) of the BSA; and/or

(b)    take any action, pursuant to Pt 10, Div 3 of the BSA, in relation to any alleged breach by a licensee of the licence condition prescribed by Sch 2, Pt 4, cl 8(l)(g) of the BSA,

prior to a competent court adjudicating that the licensee has used the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory, Today FM seeks a declaration that each of those provisions is invalid to the extent that it purports to authorise such conduct, because each is, to that extent, inconsistent with the separation of executive and judicial power mandated by Chs II and III of the Constitution.

13        Further, or in the alternative, Today FM seeks a declaration that the preliminary findings of the ACMA, in the Preliminary Investigation Report, that Today FM:

(a)    In recording the telephone call, contravened s 7(1) of the SDA;

(b)    in broadcasting the recording of the telephone call, contravened s 11(1) of the SDA;

(c)    as a result of the matters in paras (a) and (b) herein, used its broadcasting service in the commission of an offence under s 11(1) of the SDA; and

(d)    as a consequence of the matters in paras (a), (b) and (c) herein, has breached the licence condition prescribed by cl 8(1)(g) of Pt 4 of Sch 2 of the BSA,

are beyond power or invalid, because each is inconsistent with the separation of executive and judicial power mandated by Chs II and III of the Constitution.

14        Finally, Today FM seeks an order that the ACMA be restrained permanently, by itself, its servants or agents, from doing or engaging in any of the following:

(a)    Making any determination that the licensee has committed any criminal offence and, specifically, committed an offence against either the SDA or the Telecommunications (Interception and Access) Act 1979 (Cth) (“TIAA”), by reason of the recording and/or broadcast of the telephone call; and/or

(b)    forming, concluding, or expressing any opinion, that Today FM has committed any criminal offence and, specifically, committed an offence against either the SDA or the TIAA, by reason of the recording and/or broadcast of the telephone call; and/or

(c)    preparing any final report pursuant to s 178 of the BSA, or otherwise, in so far as any such report purports to determine, or express any opinion, that Today FM has, by reason of recording and/or broadcasting the telephone call, used its broadcasting service in the commission of an offence under s 11(1) of the SDA and that, as a consequence, has breached the BSA Sch 2, cl 8(1)(g) licence condition.

THE STATUTORY FRAMEWORK

The ACMA and Broadcasting Services

15        The ACMA is an administrative body established pursuant to s 6 of the ACMA Act.

16        Parliament’s intention with respect to the regulation of broadcasting services (and datacasting services) in Australia is embodied in s 4(2) of the BSA. They are to 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.

17        Section 5(1) of the BSA provides that in order to achieve the objects of the BSA in a way that it 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 rule established by this Act.

18        Section 5(2) of the BSA is relevant in the present factual context. It provides:

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.

19        The ACMA’s broadcasting functions are set out in s 10(1) of the ACMA Act and relevantly include:

(1)    To regulate broadcasting services in accordance with the BSA (para (a));

(2)    to allocate, renew, suspend and cancel licences and to take other enforcement action under the BSA (para (c));

(3)    to conduct investigations as directed by the Minister under s 171 of the BSA (para (e);

(4)    to monitor compliance with program standards relating to broadcasting in Australia (para (l));

(5)    to monitor and investigate complaints concerning broadcasting services (para (m)).

20        By s 12 of the ACMA Act, the ACMA’s general powers are expressed as encompassing powers to do all things necessary or convenient to be done for or in connection with the performance of its functions, other than three specific powers, none of which are relevant for present purposes.

Investigation of Breach of Licence Conditions

21        Section 170 of the BSA confers on the ACMA the function of conducting investigations “for the purpose of the performance or exercise of any of its broadcasting … functions … and related powers”. In certain circumstances the ACMA must conduct an investigation; it must investigate a complaint received under ss 147, 148 and 150 (see s 149), and where the Minister directs an investigation under s 171(1). In all other cases the decision to conduct an investigation rests with the ACMA.

22        In the present case, the ACMA commenced the investigation of its own motion. In investigating Today FM in relation to the broadcast of the Segment, the ACMA was concerned with the following matters, as identified in its letter to Today FM of 13 December 2012:

(1)    Today FM’s compliance with relevant provisions of the Commercial Radio Australia Codes of Practice and Guidelines 2011,

(2)    Today FM’s compliance with an additional licence condition imposed on Today FM’s licence under s 43(1) of the BSA, and

(3)    Today FM’s compliance with the condition in cl 8(1)(g) of Sch 2 to the BSA.

23        The BSA “creates the right to hold a licence but regulates the licensee’s exploitation of that right for its own benefit, by imposing limitations crafted in, and to secure, the public interest”: Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (No 2) (2009) 178 FCR 199 at [42] (Rares J). Section 42(2)(a) of the BSA requires Today FM to comply with the conditions of its licence, including cl 8(1)(g) of Sch 2. Section 5 of the BSA charges the ACMA with monitoring compliance with that condition and all of the other conditions in Sch 2. Many of the conditions call for compliance with indicia which do not require a process of reasoning involving a construction and application of a statute or a law to a given set of facts before concluding whether the condition has been breached, but none of Div 1 of Pt 11 (Complaints to the ACMA), Div 2 of Pt 13 (Investigations) or Sch 2 to the BSA differentiate between such conditions and their alleged breach, and others, such as Sch 2, cll 8(1)(a) and (g), which do require such a process of reasoning. The absence of such differentiation is consistent with the ACMA’s role under the BSA to monitor broadcasting services and to take such regulatory action as it considers necessary, consistently with the policy statements in ss 4 and 5 of the BSA.

24        An investigation under s 170 is designed to uncover facts, matters and circumstances in relation to the subject matter of the investigation. An investigation of whether a commercial radio licensee has breached cl 8(1)(g) of Sch 2, of necessity, requires consideration of whether an offence has been committed under a Commonwealth, State or Territory law, but for the purposes of determining whether the licensee used the broadcasting services the subject of the licence in the commission of that offence. The focus of the condition, and thus the ACMA’s inquiry, is the use of the broadcasting service in the commission of the underlying offence, not the licensee’s liability for any underlying offence.

CONSIDERATION AND ANALYSIS OF TODAY FM’S PRIMARY CASE

25        In response to Today FM’s primary case that unless and until a competent court adjudicates that Today FM has used the broadcasting service provided by its licence in the commission of an offence against another Act or a law of a State or Territory, the ACMA is not authorised to find that Today FM has breached the licence condition prescribed by Sch 2, Pt 4, cl 8(1)(g) of the BSA, and/or to take action, pursuant to Pt 4, Div 3 of the BSA, in relation to any such alleged breach, I find myself in total agreement with the submissions of the ACMA to the contrary, and the process of reasoning on which those submissions are predicated. In those circumstances, I embrace both as part of my reasons on this particular issue.

26        The ACMA could employ various forms of reasoning in reaching a view on the commission of an offence. An obvious avenue of reasoning would be to rely on a court of competent jurisdiction having found the offence to have been committed, although the ACMA would still have to afford the licensee an opportunity to be heard on whether the court’s finding should be accepted (see General Medical Council v Spackman [1943] AC 627 at 634–635 per Viscount Simon LC; as his Lordship said, there is no question of estoppel or res judicata; the licensee admitting commission of the offence would offer a second avenue). However, there is no reason arising from the language in which the condition is expressed, or in the more general context of the investigation power in s 170 of the BSA, to confine the ACMA solely to these two routes. The investigation – which is facilitated by provisions in the BSA including the conduct of examinations (ss 173 – 176) and production of documents (s 177) – might enable the ACMA to come to a view as to whether an offence has been committed without a court having so adjudicated or the licensee having so admitted.

27        Whatever the means, or combination of means, of reasoning employed by the ACMA, and whether the end opinion is favourable or adverse to the licensee on the point, it does not amount to the ACMA making a judgment as to the licensee’s criminal guilt, still less determining an appropriate punishment for criminal guilt. The only immediate end product of the investigation is no more or less than 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.

28        The ACMA may record its findings on an investigation in a report prepared pursuant to s 178(1) of the BSA (it must prepare a report where it carries out an investigation at the direction of the Minister). However, the BSA does not give the findings in a report binding force, nor does the BSA make provision for the findings in a report prepared by the ACMA to take effect for any particular purpose. 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.

29        Section 178(2) confers on the ACMA a discretion to give its report to the Director of Public Prosecutions where the conduct “could” constitute an offence under a Commonwealth law. This provision is at the centrepiece of Today FM’s argument, its presence advanced as telling against a legislative intention to permit the ACMA to make a finding that a person has committed a criminal offence. However, in circumstances where the ACMA’s determinations are not, and can never be, conclusive of whether an offence has been committed, I agree with 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 of 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.

30        The ACMA may also publish the report, pursuant to s 179(1), and may be directed to do so in the case of an investigation directed by the Minister. As is the case with preparing a report, the act of its publication, whether mandatory or discretionary, has no legal effect. It will involve the public generally coming to learn of the findings the ACMA has made as an administrative body in relation to the questions before it, which in the present type of case would include a finding as to whether a licensee used its services in the commission of an offence contrary to cl 8(1)(g) of Sch 2 of the BSA. However, the act of publishing the report, and with it the expression of any opinion as to whether an offence has been committed, does not amount to an adjudication of criminal guilt in the manner in which a court’s decision would operate (as the preliminary report, at p 21, in the current case makes clear: see [7] above).

31        Section 179(3)(b) of the BSA is significant in this context. It provides that the ACMA is not required to publish a report or part thereof “if the publication or disclosure would be likely to prejudice the fair trial of a person”. The inclusion of that provision indicates contemplation on the part of the legislature that the ACMA’s consideration of matters which may involve the commission of an offence could proceed, on an administrative level, before, or at the same time as, such matters are before a court. Section 199(3) makes similar provision where the ACMA proceeds to the conduct of a hearing.

32        The availability of the regulatory sanctions for which Div 3 of Pt 10 of the BSA makes provision does not call for any contrary conclusion. The 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. In so far as it also makes provision for offences to be prosecuted and civil penalties sought, which will be decided by a court exercising judicial power, any finding by the ACMA will not be decisive.

33        Section 141 of the BSA permits the ACMA to issue a remedial direction to a commercial radio licensee provided that it is “satisfied” that the licensee has breached, or is breaching, a condition of the licence, or a registered code of practice. In that circumstance, which may be continuing, the ACMA may issue a written notice directing the person to take action which is directed towards ensuring that the person does not breach the condition or code, or is unlikely to breach that condition or code, in the future (s 141(1) and (6)).

34        On the construction of the provisions of the BSA for which Today FM contends, the ACMA must await a finding of guilt by a criminal court before it can issue a direction notwithstanding that a licensee may be using its broadcasting service to engage in continuing or repeated conduct which in its opinion constitutes an offence. In circumstances where the court may never come to make that finding – a possibility that Today FM acknowledges – that outcome is inconsistent with the function of the section within the broader regulatory framework, providing a mechanism by which the ACMA may bring infringing conduct to an expeditious end or otherwise ensure that its occurrence is not repeated going forward.

35        Section 143 of the BSA provides that if a commercial radio broadcasting licensee breaches a condition of the licence, the ACMA may suspend the licence for a period not exceeding three months or cancel the licence. There is no suggestion on the face of that section that a judicial finding of breach is a prerequisite to the ACMA taking action under this section. As noted above, the only express limitation on the power is the requirement in s 143(2) that the ACMA give the licensee written notice of its intention and a reasonable opportunity to make representations to the ACMA in relation to the proposed action. Should the ACMA proceed to suspend or cancel a licence, the merits of that decision (and any breach findings that underpin the decision) are reviewable by the Administrative Appeals Tribunal: s 204(1). Apart from merits review, a decision to cancel or suspend a licence could also be the subject of a judicial review challenge, although discretionary questions about relief might arise.

36        The possibility of criminal or civil penalty proceedings in relation to the 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) of Sch 2 as and when it considers it necessary to do so. In the event that criminal or civil penalty proceedings are taken under the BSA with respect to an alleged breach of clause 8(1)(g) of Sch 2 by a commercial radio licensee, the court is not bound or otherwise affected by the ACMA’s view as to the commission of an offence. Relevantly:

(1)    Should proceedings be brought pursuant to s 139(3) of the BSA, which makes it an offence for a commercial radio licensee to breach certain conditions of a licence (including that presently relevant), a court would apply the standard of beyond reasonable doubt (Evidence Act 1995 (Cth), s 141(1)). The questions in the trial for resolution to that standard would include whether the licensee had used the broadcasting service in the commission of an offence against any law of Australia.

(2)    Alternatively, under s 140A(3) of the BSA the breach by a licensee of a larger set of conditions (again including the one presently relevant) is a contravention of the BSA which can be made the subject of a civil penalty. Again, a court would determine the question whether the licensee had used the broadcasting service in the commission of an offence, but in a civil trial, and on a balance of probabilities basis (Evidence Act, s 140). Proof in the civil context of facts which amount to the commission of a crime need only be undertaken to the civil standard, that is upon the balance of probabilities, albeit bearing in mind the statement of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 368: see Rejfek v McElroy (1965) 112 CLR 517.

(3)    If a person breaches a direction that the ACMA issues under s 141 of the BSA, the person commits an offence (s 142(3) for commercial radio broadcasting licensees), or is liable to a civil penalty (s 142A(1)). The court would exercise judicial power in determining the licensee’s compliance, in the case of the former provision in a criminal trial and in the case of the latter provision in a civil trial. In both instances the underlying breach finding made by the ACMA could be collaterally challenged.

37        In circumstances where a court hearing civil penalty proceedings may arrive at a different result from a court hearing proceedings for an offence (noting the operation of ss 205L to 205N of the BSA), Today FM’s reliance upon the spectre of contradictory judicial determinations where the ACMA takes licence action is misplaced. As noted above, in so far as the ACMA’s investigations are concerned s 179(3) of the BSA contemplates that there may be an overlap in the timing of such an investigation and the conduct of a criminal trial.

38        The bifurcation of administrative and judicial functions under the BSA as between the ACMA and the Court does not require a judicial determination of guilt as a precondition to the ACMA investigating a breach of cl 8(1)(g) of Sch 2. If the DPP decides not to prosecute, the issue may never arise for determination.

39        I agree with the ACMA’s ultimate submission on this issue that when the provisions of the BSA as to the ACMA’s role in regulating the conduct of licensees under the BSA, including the conduct of investigations and the consequences thereof, are properly understood, the narrow construction of ss 10 and 12 of the ACMA Act, and ss 5, 178 and cl 8(1)(g) of Sch 2 to the BSA for which Today FM contends has no foundation. The relief sought in prayer 1 of the application must be dismissed.

CONSIDERATION AND ANALYSIS OF TODAY FM’S ARGUMENT OF ALLEGED INFRINGEMENT OF CONSTITUTIONAL SEPARATION OF POWERS

40        In the face of that construction of the provisions of the BSA which are the subject of the declaration sought in prayer 1, Today FM’s alternative argument is that those provisions, so construed, are inconsistent with the separation of executive and judicial power mandated by the Constitution. In order to succeed on this alternative argument, Today FM has to establish that the ACMA’s exercise of the functions imposed by those provisions to the extent that they are impugned, in particular its examination of whether Today FM has breached cl 8(1)(g) of Sch 2 to the BSA, involves an exercise of judicial power.

41        Although Today FM contends that the subject matter of the investigation where cl 8(1)(g) of Sch 2 is the focus of an investigation is quintessentially one that engages the exercise of judicial power, I agree with the ACMA’s submission that the subject matter cannot be viewed in isolation. The legislative context in which the ACMA may have cause to investigate the matters in cl 8(1)(g) of Sch 2, and the consequences of it forming an opinion that a licensee has breached the condition, which have been examined above, reveal a number of features which, in combination, do not support a characterisation of the ACMA’s conduct of an investigation, such as the present, as involving the exercise of judicial power.

42        First, the ACMA, which is not constituted by lawyers alone, has broad regulatory functions which it is to discharge in accordance with the objects of the BSA and the regulatory intentions and directives expressed by Parliament in ss 4 and 5: Attorney-General (Cth) v Alinta Ltd (2007) 233 CLR 542 at [6] per Gleeson CJ.

43        Secondly, the ACMA can, as it has in the present case, act of its own motion in exercising the power in s 170 of the BSA to conduct an investigation: see, R v Spicer; Ex parte Australian Builders’ Labourers’ Federation (1957) 100 CLR 277 at 289 per Dixon CJ. Even when a complainant or the Minister triggers an investigation, neither takes on the role of an opposing party, and the ACMA conducts an investigation in a non-adversarial context: R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J.

44        Thirdly, as noted above, the purpose of an investigation is to uncover facts, matters and circumstances which may or may not support a conclusion adverse to a licensee on the regulatory issues being investigated, which conclusion may or may not be communicated by the ACMA or relied upon for action in some relevant way under the BSA. Contrary to Today FM’s contention, the investigation does not involve resolution of a legal controversy as between it and the ACMA: see, TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 295 ALR 596 at [28] per French CJ and Gageler J.

45        Fourthly, ss 179(3) and 199(3) of the BSA, to which reference has been made above, indicate that the ACMA may consider matters which may involve the commission of an offence in the course of its administrative processes before, or at the same time as, such matters are before a court for determination of criminal guilt.

46        Fifthly, the immediate end product of the investigation is no more or less than the ACMA, as an administrative body, forming an opinion on a matter within its remit. As Today FM acknowledges in its written submissions, any remedial action that the ACMA may take pursuant to s 141 or s 143 of the BSA (noting that it is open to the ACMA to take no such action) is “consequential” upon the formation of that opinion.

47        The absence of any direct legal effect of a finding of breach is not consonant with an exercise of judicial power, which generally follows a process of “an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, as long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist”: Tasmanian Breweries at 374 per Kitto J, cited, inter alia, in Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [41] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ and Alinta at [94] per Hayne J. See, also, Brandy v Human Rights and Equal Opportunity Commission (1994) 183 CLR 245 at 268–269 per Deane, Dawson, Gaudron and McHugh JJ.

48        Similarly, publication of a report pursuant to s 179 of the BSA, if it occurs, has no immediate and necessary legal consequence. Publication may have adverse reputational consequences for a licensee, which is acknowledged by the requirement, in s 180, to give the licensee a chance to make representations before adverse findings are published. Alternatively, the publication of a report that, after investigation, the ACMA is not satisfied that the licensee has used its broadcasting service in the commission of an offence may have favourable reputational consequences for the licensee. However, the inclusion in a report of a statement as to the ACMA’s conclusion as to whether a licensee has used their broadcasting service in the commission of an offence does not amount to a determination of legal rights for or against the licensee in the manner in which a court’s decision would operate.

49        Sixthly, Div 3 of Pt 10 of the BSA in part creates controversies which will be decided by a court exercising judicial power, and in other part creates administrative powers for the ACMA. To the extent that a court exercising judicial power is seized with determining whether a licensee has breached cl 8(1)(g) of Sch 2 of the BSA, it will do so to the requisite standard of proof unconstrained by any opinion the ACMA may have reached as the result of an investigation. In the event that the ACMA may take administrative action, there are available avenues by which a person may seek review of findings made by the ACMA: Breckler at [46]; Alinta at [175] per Crennan and Kiefel JJ.

50        Many positive features essential to the exercise of judicial power are not by themselves conclusive of it: Precision Data Holdings Ltd v Wills (1991) 173 CLR 167 at 188–189 (the Court), referred to with approval in Brandy at 267. The role of the ACMA in conducting an investigation under s 170 of the BSA and making findings as to the result of the investigation does not involve the exercise of judicial power. An investigation involving consideration of cl 8(1)(g) of Sch 2 of the BSA does not alter that characterisation.

51        The relief sought in prayers 2 and 3 of the application must be dismissed.

CONSIDERATION AND ANALYSIS OF TODAY FM’S ARGUMENT OF ALLEGED INTERFERENCE WITH THE ADMINISTRATION OF JUSTICE

52         I also agree that Today FM’s contention that the ACMA must be restrained from finalising its investigation because the Australian Federal Police is now investigating the recording and subsequent broadcast, rests on a misunderstanding of the principle on which it relies.

53        An administrative process may be restrained by injunction if the continuation of an administrative process would constitute a contempt of a court in which there are criminal proceedings, on the basis that it would interfere with the due administration of justice: Hammond v The Commonwealth (1982) 152 CLR 188, recently considered in X7 v Australian Crime Commission (2013) 298 ALR 570.

54        However, it is essential to the exercise of this jurisdiction that the criminal proceedings be on foot. An administrative process cannot constitute an interference with the due administration of justice in criminal proceedings which are yet to be commenced. It is not sufficient that criminal proceedings be imminent or on the cards. As the New South Wales Court of Appeal observed in Edelsten v Richmond (1987) 11 NSWLR 51 at 58 per Hope JA, Priestley and Clarke JJA agreeing:

Absent an express statutory provision, a body having power to compel the giving of self-incriminating answers should not permit the examination of a witness in respect of matters involved in related current criminal proceedings against that witness: Hammond v The Commonwealth (1982) 152 CLR 188 at 198, 206. When, there being no current proceedings against the witness, he may be charged with a relevant crime, a body having such a power may require the witness to give incriminating answers, no matter how imminent the bringing of the criminal charge may be: Sorby v The Commonwealth (1983) 152 CLR 281 at 306-307.

55        The passage in the reasons of Basten JA in New South Wales Crime Commission v Lee (2012) 301 ALR 629 at [24], on which Today FM relies, is consistent with this line of authority (an appeal from this decision is presently reserved before the High Court). See, also, Sorby v The Commonwealth (1983) 152 CLR 281 at 306–307 per Mason, Wilson and Dawson JJ, A v Boulton (2004) 204 ALR 598 at [127]–[145] per Weinberg J and Re Application under Major Crime (Investigative Powers) Act 2004 (2009) 24 VR 415 at [64] per Warren CJ. The passages from the judgment of Gibbs CJ in Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1981–1982) 152 CLR 25 at 56 and Jessup J in ABC v Sage (2009) 175 FCR 319 at [23] on which Today FM relies in its reply submissions, do not take the matter any further.

56        In the absence of criminal proceedings having commenced against Today FM, the applicant can point to no interference with the administration of justice caused by the ACMA’s proceeding to finalise its investigation. The existence of a relevant prejudice should proceedings be commenced is in any event highly contestable, in circumstances where, for the reasons noted above, any findings which the ACMA may make in finalising its investigation as to whether Today FM breached cl 8(1)(g) of Sch 2 of the BSA, even if adverse to Today FM, would not be determinative of the question of criminal guilt.

CONCLUSION

57        The application must be dismissed, with costs.

Associate:

Dated:    7 November 2013