Can an administrative agency determine that a crime has been committed?

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7, the High Court considered when an administrative agency can make a determination of the commission of a crime.  The case arises out of the sorry saga of two Today FM presenters impersonating the Queen and Prince Charles in inquiries of the hospital in which the Duchess of Cambridge was a patient.  ACMA conducted an investigation and published a preliminary report expressing the ‘view’ that Today FM had used its broadcasting service in the commission of an offence under the Surveillance Devices Act 2007 (NSW).  Commission of an offence in the course of use of a broadcasting service was a breach of the licence and carried with it the possibility of its revocation: s. 8(1)(g) Australian Communications and Media Authority Act 2005 (Cth). The Court said of ACMA’s ‘view’: No worries; full steam ahead, overturning a unanimous decision of a bench of the Full Federal Court presided over by its Chief Justice, and restoring the trial judge’s conclusions.

There are no doubt implications for Legal Services Commissioners and other disciplinary investigators where misconduct is defined to include the engaging in of criminal offences.  Under the uniform legislation to come into force in Victoria and NSW this year, Legal Services Commissioners will become decision makers and have the power to impose fines for professional misconduct.  I have blogged before about various cases in which a related question has arisen, of the appropriateness of administrative tribunals making determinations of the commission of offences, not with criminal consequences but with penal disciplinary consequences.

Today FM sought to enjoin ACMA from publishing a final report to similar effect.  It argued that either ACMA was not entitled on the proper construction of the Act to make a finding of the commission of an offence and that only the judiciary could do so, or if that is what the Act purported to empower ACMA to do, it was unconstitutional.  The High Court rejected the argument, distinguishing ACMA from ICAC on the basis that the latter was primarily an investigative body the statutory scheme associated with which contemplated that other agencies would make judgments about guilt of crimes and corrupt practices.  Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 635-636 was thereby distinguished.

A plurality judgment given by French CJ, Hayne, Kiefel, Bell and Keane JJ said:

  1. … It is the Authority’s function to monitor and regulate broadcasting services throughout Australia. There is no incongruity in empowering the Authority to take administrative enforcement action against a licensee who uses the broadcasting service in the commission of an offence, whether the offence is against Commonwealth, State or Territory law. Nor is it incongruous that the Authority may suspend or cancel a licence based upon its determination that the broadcasting service has been used in the commission of an offence notwithstanding the licensee’s (or a third person’s) subsequent acquittal of the offence. The court trying the criminal offence is required to determine guilt upon admissible evidence beyond reasonable doubt.
  2. In determining that a licensee has breached the cl 8(1)(g) licence condition, as a preliminary to taking enforcement action, the Authority is not adjudging and punishing criminal guilt. It is not constrained by the criminal standard of proof and it may take into account material that would not be admitted in the trial of a person charged with the relevant offence. It may find that the broadcasting service has been used in the commission of an offence notwithstanding that there has been no finding by a court exercising criminal jurisdiction that the offence has been proven. Where a person is prosecuted for the relevant offence, the Authority is not bound by the outcome of the criminal proceeding and may come to a contrary view based upon the material and submissions before it.89
  3. It follows that the provisions of the BSA which empower the Authority to investigate the breach of a licence condition, report on the investigation and take administrative enforcement action do not require, in the case of the cl 8(1)(g) licence condition, that any such action be deferred until after (if at all) a court exercising criminal jurisdiction has found that the relevant offence is proven.

There were protections in the statute for the reputation of persons the subject of such determinations, as Gageler J pointed out in his separate, concurring judgment:

  1. When attention is turned from the norm of conduct prescribed by cl 8(1)(g) to the powers of investigation conferred on the Authority by Div 2 of Pt 13 of the BSA, it is tolerably clear that the concerns of the common law which invoke the common law principle of construction are specifically addressed and given a precise statutory measure of protection. Reputation is addressed and protected by the requirement that any examination by the Authority is to be in private125 and the Authority be- ing prohibited from publishing in a report any matter, disclosure of which would be likely to adversely affect the interests of a person, until the Authority has given the person a reasonable period to make representations in relation to the matter.126 Integrity of the criminal process is addressed and protected by the Authority not being required to publish any part of its report, disclosure of which would be likely to prejudice the fair trial of a person.127 The Authority’s decision to publish or not to publish would be subject to the standard implied conditions that the decision be made according to a process which is fair and that the decision not be unreason- able.128

125  Section 175 of the BSA.

126  Section 180 of the BSA.

127  Section 179(3) of the BSA.

128  Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 370-371 [88]-[92]; [2013] HCA 18.

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