027a HandsleyIn this case note, Professor Elizabeth Handsley writes about the High Court decision: ACMA v TodayFM (Sydney) Pty Ltd [2015] HCA 7 and the separation of powers. Professor Handsley teaches constitutional law and media law at Flinders University. Read more about Professor Handsley.


In the recent case of Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, the High Court of Australia answered some questions about how our legal system uses statutory interpretation and the separation of powers to support the rule of law.

Radio Station Licencing

Today FM (‘the station’) holds a licence under the Broadcasting Services Act 1992 (Cth) to run a commercial broadcasting service. All such licences are subject to certain standard conditions, including that ‘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’ (Schedule 2, clause 8(1)(g)). If one of those conditions is breached, the Australian Communications and Media Authority (‘ACMA’) has the power to seek a civil penalty order, issue a remedial direction or suspend or cancel the licence.

The ‘Prank’ and the ACMA Investigation

Following a prank that some of the station’s presenters played in 2012 on a nurse in the London hospital where the Duchess of Cambridge was being treated for severe morning sickness caused by her pregnancy with the heir to the English throne, the ACMA initiated an investigation and invited the station to make submissions on whether it had breached cl 8(1)(g) by committing an offence under the Surveillance Devices Act 2007 (NSW) (‘SDA’).

The offence would consist of publishing a private conversation that came to the station’s knowledge as a result of the use of a listening device. The station denied having committed any offence. In its report, the ACMA stated the ‘preliminary finding’ that the station had breached the condition in cl 8(1)(g) by contravening the NSW Act – that is, by committing an offence.

The station started proceedings in the Federal Court of Australia, and lost at first instance before Edmonds J. Between then and the station’s appeal, the ACMA finalised its investigation, with a firm finding that the station had breached the licence condition by committing an offence.

The Federal Court Case and Appeal

The case raised issues of statutory interpretation and of the constitutional separation of powers – specifically the separation of judicial power. The first issue arose from the station’s argument that the ACMA ‘was not authorised to find that it had breached the cl 8(1)(g) licence condition unless and until a competent court adjudicated that it had committed the SDA offence.’ [para 16] The second issue was based on an argument that the Broadcasting Services Act 1992 (Cth) (BSA) had invalidly purported to confer judicial power on the ACMA.

Significant for the Rule of Law

These issues have significance for the rule of law, because they examine the appropriate role of courts in holding government to account.

The first asks, ‘How should courts interpret legislation granting power to the executive? What general principles should guide that process?’

In other words, it involves the court in setting the parameters for executive power (and, some might say, the legislature’s power to confer power on the executive).

The second asks how far one can extend the principle laid down in the 1992 case of Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs [1992] HCA 64 that only a court exercising criminal jurisdiction can order punishment for criminal guilt.

After the station was successful in its appeal to the Full Court of the Federal Court of Australia, ACMA successfully sought special leave the have its case heard in the High Court.

The High Court Case

ACMA was successful in its appeal to the High Court of Australia. The station was ordered to pay the ACMA’s costs of both appeals.

The High Court delivered two judgments, one by French CJ, Hayne, Kiefel, Bell and Keane JJ and one by Gageler J who agreed in the result. This blog will focus on the joint judgment.

Their Honours disagreed with the principle the Full Court had used to interpret cl 8(1)(g), namely that ‘it is not normally to be expected that an administrative body … will determine whether or not particular conduct constitutes the commission of … an offence’. [para 34] Their Honours pointed to a number of instances in our legal system where bodies other than courts exercising criminal jurisdiction ‘determine facts which establish that a person has committed a crime’ [para 32] or ‘determine whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action’ [para 33].

The implication is that if there is a principle telling courts to interpret powers narrowly so that the executive can’t find criminal guilt (or the commission of an offence), it only applies where the outcome of that finding is punishment. They found that there was nothing in the text, the objects or the context of the BSA to indicate that the ACMA was not supposed to be able to reach its own conclusions on whether a licensee had committed an offence.

The second issue was whether the ACMA’s powers that depend on a finding that a licensee has committed an offence involve a conferral of judicial power on the administrative body, in breach of the doctrine of separation of judicial power laid down in the Boilermakers’ Case as further elaborated in Chu Kheng Lim, mentioned above. One the key indicators of judicial power is the resolution of a controversy between parties, and their Honours pointed out that there was no such controversy here [para 58]. Rather their Honours likened this arrangement to any other administrative process that involves the formation of ‘an opinion as to the legal rights of an individual as a step in [a] body’s ultimate determination’. [para 55]

The distinctions their Honours draw may be a little subtle for some but it is worth bearing in mind the important distinctions between civil and criminal proceedings, and especially the standards of proof required in each (balance of probabilities and beyond reasonable doubt, respectively). If one accepts those distinctions, one should also be able to understand why their Honours would say that the limitation of punishment power to criminal courts does not require that other kinds of power (eg administrative enforcement, suspension or cancellation of a licence) be limited in that way, even if all the relevant powers have in common that they involve some kind of declaration that an offence has been committed. The station raised, and their Honours rejected, an argument that suspension or cancellation of a broadcasting licence was ‘in substance a penalty’ [paras 56-58]. They pointed out, rightly in my view, that it is in the nature of licences that they are subject to suspension or cancellation if certain conditions are not met. This is quite a different matter from a punishment or penalty.

Therefore much of the outcry about the decision was misplaced. FreeTV Australia said that the decision made the ACMA ‘policeman, judge and jury’ – a conclusion that would detract from the rule of law – but as the discussion above shows, the Court preserved those roles in any case that could lead to actual punishment. Rather, the decision might remind us that however fine a principle the rule of law is for measuring and critiquing governmental power, private power – such as media power – can be abused too, and it’s sometimes important to have strong enforcement powers to prevent and address those abuses. That might take the form of ‘preventive enforcement’ which, in the words of one commentator, is ‘considered a foundation to a civilised and safe society’. Moreover, as ACMA Chairman Chris Chapman said, the decision ‘provides clarity regarding the operation of the licence condition’ – and clarity is always a good thing, from the perspective of the rule of law.