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.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Allsop CJ, Robertson and Griffiths JJ.