Powers of Regulators Brought Into the Spotlight by High Court Decision

Recently the High Court of Australia handed down its unanimous decision in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 (HCA Decision) which relates to the powers of the Australian Communications and Media Authority (Authority).

The HCA Decision accepts that the Authority was permitted to make a finding of fact that a licensee committed a criminal offence and in doing so had breached a licence condition, despite the fact that no proceedings in relation to the criminal offence had been commenced or successfully prosecuted.

There are numerous industries that are regulated through licences, authorisations and associated conditions and it is expected the HCA Decision could have a wide reaching impact on regulatory regimes generally. Accordingly, the HCA Decision:

  • may be concerning for participants in regulated industries, given that it dispenses with the need for a regulator to prove that an offence has been committed prior to taking administrative action; and
  • is likely to be well received by regulators as it reinforces their powers to take administrative enforcement action.

Licence and authorisation holders need to be aware of:

  • the extensive powers of regulators to investigate, report on and take administrative enforcement action, and make their own findings of fact independently of other judicial proceedings that may be applicable in any particular set of circumstances; and
  • the fact that these extensive powers may facilitate the ease with which a licence or authorisation is cancelled or suspended by an administrative decision maker.

Participants in regulated industries should take these matters into account in their regulatory compliance programs.
For further information, please refer to our Legal Insight dated 1 April 2015.

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