ON 4 MARCH 2015, the High Court of Australia delivered Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd  HCA 7 (4 March 2015).
The High Court allowed an appeal by the Australian Communications Media Authority (ACMA) against a decision of the Federal Court of Australia regarding the investigation of a broadcast in December 2012 by Today FM (Sydney) Pty Ltd, a licensee under the Broadcasting Services Act 1992 (Cth).
The broadcast contained a recorded telephone conversation between two radio presenters and two of the staff of the King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient. The conversation was recorded and broadcast without the consent of either of the hospital staff.
ACMA investigated the matter and determined that Today FM breached a licence condition of breaching a law of the Commonwealth or State or Territory by communicating a private conversation without the consent of the principal parties in breach of the Surveillance Devices Act 2007 (NSW).
Today FM brought proceedings in the Federal Court of Australia seeking declarations and injunctions against ACMA. They argued (1) that ACMA was not authorised to determine the breach of the licence condition issue until a competent court had determined that Today FM had committed the Surveillance Devices Act offices and (2) in the alternative, that if ACMA was so authorised, the legislation was invalid because of its inconsistency with the separation of judicial and executive powers in the Constitution.
The Federal Court dismissed the matter but on appeal the Full Court of the Federal Court allowed an appeal on the grounds of the first argument.
Special leave was granted for ACMA to appeal to the High Court of Australia. The High Court allowed the appeal, holding that ACMA has the power to make an administrative determination that a licensee has committed a criminal offence (under the Surveillance Devices Act), notwithstanding there being no court determination of the offence as the tribunal is not exercising judicial power not adjudging or punishing criminal guilt.
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