FEDERAL COURT OF AUSTRALIA
Vodafone Hutchison Australia Pty Ltd v Australian Competition Consumer Commission [2017] FCA 1549
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The originating application for judicial review filed on 1 June 2017 be dismissed.
2. Within 28 days hereof the parties are to seek to agree on costs in the light of the reasons for judgment. If they are unable to reach an agreement, within that time, each party should file and serve an outline of written submissions not exceeding three pages in support of their respective positions on costs.
3. Final orders as to costs will be heard and determined on the papers and without a further oral hearing.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GRIFFITHS J:
1 When this matter was heard the Australian Competition and Consumer Commission (ACCC) was conducting an inquiry about the possible declaration of a domestic mobile roaming service. The ACCC regarded the inquiry as a public inquiry within the meaning of Pt 25 of the Telecommunications Act 1997 (Cth) (Telecommunications Act). The central issue in this judicial review proceeding is whether or not the ACCC’s inquiry is a valid and lawful inquiry. In essence, Vodafone Hutchison Australia Pty Ltd (the applicant) contends that it is not a valid and lawful inquiry because the ACCC failed to direct itself to a “specified eligible service” as it was obliged to do so, either at the commencement of the inquiry or, alternatively, at least by the stage involving public participation. After the hearing, the Court was informed that the ACCC had published its final decision and report relating to the inquiry. No party suggested that there was a lack of utility in determining the judicial review application.
2 The central issue requires the Court to construe relevant provisions of both the Telecommunications Act and the Competition and Consumer Act 2010 (Cth) (the CC Act).
3 Before doing so, it is desirable to summarise the relevant background facts (which are not in dispute) and then describe the key relevant statutory provisions.
Summary of background facts
4 On 5 September 2016, the ACCC published a media release which announced that, on that day, it would commence “an inquiry into whether or not to declare a wholesale domestic mobile roaming service”. As will shortly emerge, the time when a Pt 25 inquiry commences falls to be determined by reference to s 152AI of the CC Act (see further at [37] below), and not merely by what is stated in the ACCC media release.
5 On 26 October 2016, the ACCC released a discussion paper into whether to declare a wholesale domestic mobile roaming service. It stated that domestic mobile roaming would allow consumers to access mobile services through another operator’s network when outside the coverage area of their service provider. The discussion paper invited input from interested persons on several issues which were said to be relevant in determining whether to declare a mobile roaming service, including:
• the current state of competition for mobile services and whether there are barriers to extending mobile networks in regional Australia;
• the effect that declaring a mobile roaming service may have upon competition;
• the extent and nature of investment which has taken place in mobile networks since the last declaration inquiry;
• the effect the declaration may have on mobile network operators’ incentives to invest in extending and improving their networks; and
• the importance of geographic coverage for consumers and mobile service providers’ ability to compete.
6 It is desirable to say something more about the discussion paper. It described a mobile roaming service as one which “allows mobile subscribers of one network to use their mobile phones for calls, text messages and to access data services by means of another network in Australia when outside the coverage area of the network to which they subscribe”. It explained that a roaming service of itself does not increase mobile coverage in new areas, but, rather, increases the areas in which customers on networks with less coverage than other networks can use their mobile services. The discussion paper contained no more specific a description of the service that might be declared apart from the reference to a “wholesale domestic mobile roaming service”.
7 The discussion paper mentioned that on two previous occasions the ACCC had considered whether to declare a mobile roaming service. The first inquiry was in 1998 and concluded with the ACCC deciding not to declare a mobile roaming service on the basis that, although there would be competitive benefits from mobile roaming services, those benefits would likely be achieved without regulatory intervention. The second inquiry was in 2005. The ACCC concluded then that regulation of mobile roaming services could be in the long-term interests of end-users and advance other relevant objectives, but the ACCC determined that it was satisfied at that time that declaration was not necessary to ensure a roaming service was provided on a commercial basis.
8 The ACCC stated in the discussion paper that it was conducting the inquiry in 2016 “to determine whether the difference in geographic coverage provided by the three mobile networks is impacting competitive and efficient outcomes in mobile markets, and whether declaring a mobile roaming service would be in the long-term interests of end-users”. It is convenient to refer to the concept of the “long-term interests of end-users” as LTIE.
9 The discussion paper contained a section which described the way in which mobile services were currently supplied in Australia and some of the challenges of doing so in regional areas. Part 4 of the discussion paper contained material relating to the topic of the LTIE. The ACCC explained that it would “explore the service description of such a service in the next part of the paper”, but it noted that there were specific aspects of the service that would be relevant to the ACCC’s consideration of whether declaration would be in the LTIE. The ACCC stated, in particular, that it “will consider whether the scope of the service, for example only declaring a service in specific areas with limited infrastructure based competition or with technological limitations (for example, only 3G services), would impact competition in retail markets”. Part 4 of the discussion paper then set out a relatively detailed analysis which was directed to identifying and defining relevant markets, assessing the state of competition in those markets and considering the likely state of competition in those markets with and without declaration.
10 Submissions were invited not only on the effect of declaration on relevant retail markets but also on the wholesale mobile roaming market.
11 Part 5 of the discussion paper was headed “Considerations if the ACCC were to declare a domestic mobile roaming service”. At the beginning of that part, the ACCC stated that, if it were to declare a domestic mobile roaming service, “it would be necessary to consider a service description and the scope of that service description as well as regulated issues in making an access determination”. It explained that these issues were discussed in this part of the discussion paper.
12 In Pt 5.1, it was stated that, if the ACCC decided to “declare a mobile roaming service, a key element of the decision will be the appropriate scope of the service description”. It identified key issues as including:
• the geographic areas that should be covered;
• the network technology that should be covered; and
• the type of mobile services that should be included.
13 Further, after stating that the ACCC had not at this stage formed any views about whether a roaming service should be declared, it said that “it is important to examine these issues during the inquiry as they may affect the extent to which the declaration of a mobile roaming service may promote the LTIE”.
14 A lengthy consolidated list of questions which interested parties were invited to make submissions on was set out in Appendix A of the discussion paper. Question 44 should be noted:
44. If the ACCC were to declare a mobile roaming service:
a. How should the service be described?
b. What would the appropriate geographic scope for the service be?
c. Should the service description be technology neutral or limited to certain technologies (e.g. 3G network)? Please provide reasons for your views.
15 Other relevant stated questions were whether a declared mobile roaming service should include mobile voice, SMS and data services (question 45); whether there were services that should be included or explicitly excluded (question 46) and whether there were other matters which should explicitly be set out in the service description (question 47).
16 It is evident from the discussion paper that the ACCC had not, at that point, settled on the description of any more specific domestic mobile roaming service which might be declared. This is one of the matters upon which the ACCC invited input from interested parties. The applicant’s case is that the ACCC’s inquiry, to be valid, had to be one in relation to a specified eligible service and that no such service has been yet identified by the ACCC, including but not limited to what was in the discussion paper.
17 Over 130 submissions were made to the ACCC in response to the discussion paper. The applicant’s submission directly and specifically addressed the ACCC’s questions regarding service description. In particular, it identified different geographic options for any service description and made submissions concerning the relative merits of its suggested options. It proposed a specific service description which was based on areas with less than three mobile networks, but also addressing technology and service considerations. At no point prior to the commencement of these proceedings did the applicant complain that, in its view, the inquiry being conducted by the ACCC, in which it actively participated, was unlawful.
18 On 5 May 2017, the ACCC published a draft decision on its domestic mobile roaming declaration inquiry. In the Executive Summary, the ACCC said that its draft decision was not to declare a domestic mobile roaming service. It said that an issue was whether the difference in geographic coverage between the mobile networks had led to reduced competition or inefficient outcomes in mobiles markets and whether declaration of a mobile roaming service would address those concerns. It stated:
Consistent with the legislative framework, the ACCC has considered whether declaring a roaming service would promote the long-term interests of end-users (LTIE) by promoting competition, achieving any-to-any connectivity and encouraging the economically efficient use of, and investment in, infrastructure.
19 The draft decision contained an invitation for people to make submissions on the matters raised in the draft decision, which the ACCC said it would take into account in reaching its final decision on the inquiry.
20 The draft decision comprised 90 pages in total. At page 11, the ACCC noted that the applicant (referred to as VHA):
… has been a strong advocate for imposing economic regulation to address what it sees as negative consumer effects of the significant differences in network coverage disparity. It claims that it is not economic for VHA to replicate Telstra or Optus’s coverage; that is, that a significant amount of Telstra’s coverage is a natural monopoly. This is a difficult claim to test and the ACCC examines this further when it outlines the relevant markets to this inquiry when applying the LTIE test.
21 The ACCC’s preliminary conclusion in the draft decision report that declaration of a mobile roaming service would not promote the LTIE, as well as its other tentative conclusions, are reflected in the following paragraphs in that part of the report under the heading “Conclusion”:
…
The ACCC considers that competition in the national mobile services market is currently showing signs of being reasonably effective but is less effective in parts of regional, rural and remote Australia. However, while there is less or perhaps no choice of service provider for some consumers who require or value widespread geographic coverage, these consumers still benefit from greater competition in non-regional parts of the market through reductions in prices and greater plan inclusions.
The ACCC considers that declaration does have the potential to promote competition in the retail markets to a modest extent and consider there is a risk that some consumers could be left worse off. Therefore, we do not consider that declaration will promote competition to such an extent that it supports a decision to declare.
The ACCC finds that declaration will not assist in achieving any-to-any connectivity as this is already being achieved.
We consider declaration may result in some efficiency gains in allowing access seekers to use the excess capacity available on the access provider’s existing infrastructure in areas where declaration would be likely to apply.
However, the ACCC considers that declaration would not promote economically efficient investment in infrastructure more generally. Declaration, coupled with an efficient regulated price, would in most cases promote efficient investment in infrastructure. However, given the lack of evidence that competition in the relevant markets is failing to deliver efficient outcomes, we cannot find that declaration is necessary. In such a case, there is a risk that declaration may in fact distort efficient investment incentives.
For all the above reasons, the ACCC’s draft decision is not to declare a domestic mobile roaming service.
The ACCC recognises the concerns of consumers in regional, rural and remote areas regarding mobile network coverage and quality. We are interested in views on whether there are regulatory or policy measures that may improve competition and have identified measures that could improve transparency for consumers and improve the current regulation of inputs essential to delivering quality mobile networks.
22 At the hearing, the Court was informed by the ACCC’s senior counsel that it was anticipated that the ACCC would come to its final decision in the period mid to end October 2017. On 18 October 2017 the applicant’s solicitors wrote to my associate and indicated that the ACCC intended to publish its final report on 23 October 2017.
Summary of relevant legislative provisions
23 Consideration has to be given to relevant provisions of both the Telecommunications Act and the CC Act. In general terms, the former legislation contains important provisions relating to the powers and procedures of the ACCC in relation to telecommunications matters, whereas the latter legislation contains detailed provisions in Pt XIC relating to the telecommunications access regime. This regime turns on the ACCC having first declared a specified eligible service to be a declared service for the purposes of that Part.
24 It is important to note that Pt 25 of the Telecommunications Act, which relates to public inquiries, has a broader application than merely to the process leading up to the possible declaration of a specified eligible service. This wider operation is relevant to the task of statutory construction. Pt 25 has an ambulatory operation, which is not confined merely to the conduct of a public inquiry into a proposal to make a declaration. It provides for public inquiries to be conducted into a range of matters relating to telecommunications by the ACCC or the Australian Communications and Media Authority. The proper construction must accommodate these matters.
(a) Telecommunications Act summarised
25 Before identifying the key provisions in Pt 25 it is relevant to note other aspects of that legislation. Section 3 states that the main object of the Telecommunications Act, when read together inter alia with Pt XIC of the CC Act, is to provide a regulatory framework that promotes the following matters:
(a) the long-term interests of end-users of carriage services or of services provided by means of carriage services; and
(b) the efficiency and international competitiveness of the Australian telecommunications industry; and
(c) the availability of accessible and affordable carriage services that enhance the welfare of Australians.
26 Other objects of the Telecommunications Act are set out in s 3(2).
27 As noted above, Pt 25 deals with public inquiries by various regulatory bodies. Div 3 deals specifically with inquiries by the ACCC. It is appropriate to set out in full the key provisions.
28 Section 497 provides for the holding of a public inquiry in the exercise of the ACCC’s discretion (the Minister may also direct the ACCC under s 496 to hold an inquiry, but that did not occur here):
497 When inquiry may be held
(1) This section applies if the ACCC considers that it is appropriate and practicable to hold a public inquiry under this Division about a matter relating to the ACCC’s telecommunications functions and powers.
(2) The ACCC may hold such an inquiry about the matter.
29 Section 498 sets out how the public is to be informed about a public inquiry:
498 Informing the public about an inquiry
(1) If the ACCC holds a public inquiry, it must publish, in whatever ways it thinks appropriate, notice of:
(a) the fact that it is holding the inquiry; and
(b) the period during which the inquiry is to be held; and
(c) the nature of the matter to which the inquiry relates; and
(d) the period within which, and the form in which, members of the public may make submissions to the ACCC about that matter; and
(e) the matters that the ACCC would like such submissions to deal with; and
(f) the address or addresses to which submissions may be sent.
(2) The ACCC need not publish at the same time or in the same way notice of all the matters referred to in subsection (1).
30 Section 499 empowers the ACCC, in its discretion, to publish a discussion paper in the course of conducting a public inquiry:
499 Discussion paper
(1) After deciding to hold a public inquiry about a matter, the ACCC may cause to be prepared a discussion paper that:
(a) identifies the issues that, in the ACCC's opinion, are relevant to that matter; and
(b) sets out such background material about, and discussion of, those issues as the ACCC thinks appropriate.
(2) The ACCC must make copies of the discussion paper available at each of the ACCC offices. The ACCC may charge a reasonable price for supplying copies of the discussion paper in accordance with this subsection.
(3) The ACCC may otherwise publish the discussion paper, including in electronic form. The ACCC may charge a fee for supplying a publication under this subsection.
31 Section 500 obliges the ACCC to provide a reasonable opportunity for the public to make written submissions and provides some protection from civil liability for those who do so:
500 Written submissions and protection from civil actions
(1) The ACCC must provide a reasonable opportunity for any member of the public to make a written submission to the ACCC about the matter to which a public inquiry relates.
(2) For the purposes of subsection (1), the ACCC is taken not to have provided a reasonable opportunity to make submissions unless there was a period of at least 28 days during which the submissions could be made.
(3) Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of the making in good faith of a statement, or the giving in good faith of a document or information, to the ACCC in connection with a public inquiry under this Division.
(4) The rule in subsection (3) applies whether or not the statement is made, or the document or information is given, in connection with a written submission or a public hearing.
…
32 The ACCC is obliged by s 505 to prepare a report which sets out its findings arising from the public inquiry:
505 Reports on inquiries
(1) If the ACCC holds a public inquiry, the ACCC must prepare a report setting out its findings as a result of the inquiry.
(2) If the inquiry was held because of a direction given by the Minister under section 496, the ACCC must give a copy of the report to the Minister.
(3) If the inquiry was held otherwise than because of a direction given by the Minister under section 496, the ACCC must publish the report.
(4) The ACCC is not required to include in a report any material:
(a) that is of a confidential nature; or
(b) the disclosure of which is likely to prejudice the fair trial of a person; or
(c) that is the subject of an order or direction under section 503 or 504.
33 Section 505A empowers the ACCC to use certain material from a previous public inquiry:
505A ACCC may use material presented to a previous public inquiry
(1) This section applies if:
(a) the ACCC has held a public inquiry (the original inquiry) under this Part; and
(b) any of the following subparagraphs applies:
(i) evidence or other material was presented to a hearing for the purposes of the original inquiry;
(ii) a written submission was lodged with the ACCC for the purposes of the original inquiry;
(iii) any other information obtained by the ACCC was used by the ACCC for the purposes of the original inquiry; and
(c) the ACCC holds another public inquiry under this Part.
(2) The ACCC may:
(a) in the case of evidence or other material presented to a hearing–treat the whole or a part of the evidence or other material as if it had also been presented to a hearing for the purposes of the other public inquiry; or
(b) in the case of a written submission lodged with the ACCC treat–the whole or a part of the written submission as if it had also been lodged with the ACCC for the purposes of the other public inquiry; or
(c) in the case of any other information obtained by the ACCC–use the whole or a part of the information for the purposes of the other public inquiry.
(3) This section does not, by implication, limit the information that may be used by the ACCC for the purposes of a public inquiry under this Part.
(b) CC Act summarised
34 Pt XIC sets out the telecommunications access regime. Relevantly, the telecommunications access regime operates by reference to a carriage service being a declared service. Broadly, carriers and carriage service providers who provide declared services are required to comply with standard access obligations in relation to the services. If agreement cannot be reached on the terms and conditions on which carriers and carriage service providers are to comply with the standard access obligations, but there is an access undertaking in place, the terms and conditions are those set out in the access undertaking. If there is no agreement and no access undertaking, nor any binding rules of conduct made by the ACCC, the terms and conditions are as specified in an access determination made by the ACCC. It goes without saying that the telecommunications access regime, which depends on a carriage service being a declared service, imposes significant obligations and entitlements on carriers and carriage service providers as well as access seekers.
35 Section 152AB sets out the object of Pt XIC:
Object of this Part
Object
(1) The object of this Part is to promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Promotion of the long-term interests of end-users
(2) For the purposes of this Part, in determining whether a particular thing promotes the long-term interests of end-users of either of the following services (the listed services):
(a) carriage services;
(b) services supplied by means of carriage services;
regard must be had to the extent to which the thing is likely to result in the achievement of the following objectives:
(c) the objective of promoting competition in markets for listed services;
(d) the objective of achieving any-to-any connectivity in relation to carriage services that involve communication between end-users;
(e) the objective of encouraging the economically efficient use of, and the economically efficient investment in:
(i) the infrastructure by which listed services are supplied; and
(ii) any other infrastructure by which listed services are, or are likely to become, capable of being supplied.
Subsection (2) limits matters to which regard may be had
(3) Subsection (2) is intended to limit the matters to which regard may be had.
Promoting competition
(4) In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(c), regard must be had to the extent to which the thing will remove obstacles to end-users of listed services gaining access to listed services.
Subsection (4) does not limit matters to which regard may be had
(5) Subsection (4) does not, by implication, limit the matters to which regard may be had.
Encouraging efficient use of infrastructure etc.
(6) In determining the extent to which a particular thing is likely to result in the achievement of the objective referred to in paragraph (2)(e), regard must be had to the following matters:
(a) whether it is, or is likely to become, technically feasible for the services to be supplied and charged for, having regard to:
(i) the technology that is in use, available or likely to become available; and
(ii) whether the costs that would be involved in supplying, and charging for, the services are reasonable or likely to become reasonable; and
(iii) the effects, or likely effects, that supplying, and charging for, the services would have on the operation or performance of telecommunications networks;
(b) the legitimate commercial interests of the supplier or suppliers of the services, including the ability of the supplier or suppliers to exploit economies of scale and scope;
(c) the incentives for investment in:
(i) the infrastructure by which the services are supplied; and
(ii) any other infrastructure by which the services are, or are likely to become, capable of being supplied.
Subsection (6) does not limit matters to which regard may be had
(7) Subsection (6) does not, by implication, limit the matters to which regard may be had.
Investment risks
(7A) For the purposes of paragraph (6)(c), in determining incentives for investment, regard must be had to the risks involved in making the investment.
(7B) Subsection (7A) does not, by implication, limit the matters to which regard may be had.
Achieving any-to-any connectivity
(8) For the purposes of this section, the objective of any-to-any connectivity is achieved if, and only if, each end-user who is supplied with a carriage service that involves communication between end-users is able to communicate, by means of that service, with each other end-user who is supplied with the same service or a similar service, whether or not the end-users are connected to the same telecommunications network.
36 The following relevant definitions are to be found in s 152AC:
…
“carriage service” has the same meaning as in the Telecommunications Act 1997, and includes a proposed carriage service.
…
“declared service” has the meaning given by section 152AL.
…
37 The following provision should be noted as it relates to the timing of the commencement of a public inquiry:
152AI When public inquiry commences
For the purposes of this Part, a public inquiry held by the Commission under Part 25 of the Telecommunications Act 1997 commences when the Commission publishes the notice under section 498 of that Act about the inquiry.
38 Div 2 of Pt XIC deals with declared services. Section 152AL is at the heart of this proceeding, particularly sub-section 152AL(3):
152AL Declared services
Eligible service
(1) For the purposes of this section, an eligible service is:
(a) a listed carriage service (within the meaning of the Telecommunications Act 1997); or
(b) a service that facilitates the supply of a listed carriage service (within the meaning of that Act);
where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons).
Declaration made after public inquiry services not supplied by an NBN corporation
(3) The Commission may, by written instrument, declare that a specified eligible service is a declared service if:
(a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and
(b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending when the declaration was made; and
(d) the Commission is satisfied that the making of the declaration will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way.
(3A) A declaration under subsection (3) does not apply to an eligible service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons).
(3B) Before commencing to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make a declaration under subsection (3) in relation to an eligible service, the Commission must consider whether to hold a public inquiry under that Part about a proposal to make a declaration under subsection (8A) in relation to the service.
Note: For combined public inquiries, see section 152AN.
…
Declaration has effect
(4) A declaration under subsection (3) has effect accordingly.
Gazettal of declaration
(5) A copy of a declaration under subsection (3) is to be published in the Gazette.
…
(8) The Commission may declare a service under subsection (3) even if the service is, to any extent, covered by subsection (7).
Declaration made after public inquiry–services supplied by an NBN corporation
(8A) The Commission may, by written instrument, declare that a specified eligible service, to the extent to which the service is supplied, or is capable of being supplied, by a specified NBN corporation (whether to itself or to other persons), is a declared service if:
(a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and
(b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997; and
(c) the report was published during the 180-day period ending when the declaration was made; and
(d) the Commission is satisfied that the making of the declaration will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services.
If the Commission does so, the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).
Note: Eligible services may be specified by name, by inclusion in a specified class or in any other way.
…
(8D) If:
(a) an eligible service is supplied, or is capable of being supplied, by an NBN corporation (whether to itself or to other persons); and
(b) the NBN corporation is a carrier or a carriage service provider; and
(c) the NBN corporation has formulated a standard form of access agreement that relates to access to the service; and
(d) the standard form of access agreement is available on the NBN corporation’s website;
then:
(e) the service, to the extent to which it is supplied, or is capable of being supplied, by the NBN corporation (whether to itself or to other persons) is a declared service; and
(f) the declared service relates to the NBN corporation for the purposes of subsections 152AXB(2) and 152AXC(7).
…
39 Section 152ALA deals with the duration of a declaration. It is relevant to note s 152ALA(7):
Public inquiry during 18-month period ending on the expiry date of a declaration
(7) The Commission must:
(a) during the 18-month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about:
(i) whether to extend or further extend the expiry date of the declaration; and
(ii) whether to revoke the declaration; and
(iii) whether to vary the declaration; and
(iv) whether to allow the declaration to expire without making a new declaration under section 152AL; and
(v) whether to allow the declaration to expire and then to make a new declaration under section 152AL; and
(vi) whether to extend or further extend the expiry date of a declaration by a period of not more than 12 months and then to allow the declaration to expire without making a new declaration under section 152AL; and
(b) prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and
(c) publish the report during the 180-day period ending on the expiry date of the first-mentioned declaration.
40 Sections 152AM and 152AN are also important:
152AM Inquiries about proposals to declare services
(1) This section applies to a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or (8A)(a) or 152ALA(7)(a).
(2) The Commission may hold the inquiry:
(a) on its own initiative; or
(b) if requested in writing to do so by a person.
(3) The Commission does not have a duty to consider whether to hold a public inquiry of a kind mentioned in paragraph 152AL(3)(a) or (8A)(a) if the Commission is requested to do so by a person.
(4) The Commission must give the ACMA a copy of the report about the inquiry prepared in accordance with section 505 of the Telecommunications Act 1997.
(5) If the inquiry is held at the request of a person, the Commission must give the person a copy of the report about the inquiry prepared under section 505 of the Telecommunications Act 1997.
152AN Combined inquiries about proposals to declare services
(1) The Commission may decide to combine 2 or more public inquiries of a kind mentioned in paragraph 152AL(3)(a), or (8A)(a) or 152ALA(7)(a).
(2) If the Commission makes such a decision:
(a) the Commission may publish a single notice relating to the combined inquiry under section 498 of the Telecommunications Act 1997; and
(b) the Commission may prepare a single discussion paper about the combined inquiry under section 499 of that Act; and
(c) the Commission may hold hearings relating to the combined inquiry under section 501 of that Act; and
(d) the Commission must ensure that each inquiry is covered by a report under section 505 of that Act, whether the report relates:
(i) to a single one of those inquiries; or
(ii) to any 2 or more of those inquiries.
Applicant’s case summarised
41 The primary points raised by the applicant in support of its judicial review challenge may broadly be summarised as follows. First, the ACCC’s failure to date to direct itself, or the public inquiry, to a “specified” eligible service means that a valid public inquiry within the meaning of Pt 25 of the Telecommunications Act had not yet commenced or, alternatively, could not be concluded without legal error.
42 Secondly, the applicant placed strong emphasis on the significance of the word “specified” in the chapeau to s 152AL(3). It submitted that, in the statutory scheme, this word delineates the scope of a public inquiry, underpins the mandated opportunity for public participation, and provides the framework for the application of the statutory criteria by the ACCC.
43 Thirdly, the applicant emphasised that one of the purposes of a public inquiry is to inform the ACCC in arriving at its state of satisfaction under s 152AL(3)(d) as to whether the making of the declaration will promote the LTIE. It cited Foster J’s observations in Telstra Corporation Ltd v Australian Competition and Consumer Commission [2017] FCA 316; 344 ALR 511 (Telstra Corporation) at [11], where his Honour described s 152AB as “a critical provision” which “specifies the overarching significance of the LTIE as the sole object of Pt XIC”. His Honour added that the specified objectives in s 152AB(2) (which give content to the LTIE) are considerations which the ACCC “is obliged to keep… in the forefront of its thinking and ultimately of its decision-making when making decisions under Pt XIC”.
44 Fourthly, the applicant emphasised that the public inquiry required by s 152AL(3)(a) must be one “about a proposal to make the declaration”, being a declaration that a “specified eligible service” is a declared service. It submitted that there must be a “proposal” to declare a “specified eligible service” and that this is the “matter” to which the public inquiry is to relate. This, it said, is the inquiry which must be notified to the public so that submissions can be made, and which also informs the proper discharge of the ACCC’s powers to prepare a discussion paper and meet the other statutory requirements concerning the inquiry.
45 The applicant submitted that “specified” should be construed according to ordinary principles of statutory construction and that its ordinary meaning connotes a degree of definition, detail, explication or particularisation that is more demanding than words such as “mention” or “identification”. It referred to the Full Court’s observations in Telstra Corporation Ltd v Seven Cable Television Pty Ltd [2010] FCA 1160; 102 FCR 517 (Seven Cable) at [108]-[109] in relation to a similar provision, where it was stated that a service must be “adequately specified so that it may be identified”.
46 The following matters were relied upon by the applicant in support of its submission that a “high degree of specificity is required”:
(a) such specificity is contemplated in the statutory scheme because it is a precondition to the exercise of power under s 152AL(3) that there be a public inquiry under Pt 25 of the Telecommunications Act “about” a “proposal” to declare a specified eligible service;
(b) such specificity is contemplated in order to give effect to the ACCC’s obligations to notify the public about the nature of the matter to which the inquiry relates (s 498 of the Telecommunications Act);
(c) such specificity is required if the ACCC is to discharge its duty of affording a reasonable opportunity for the public to make submissions about the matter to which the public inquiry relates (s 500 of the Telecommunications Act);
(d) such specificity is required for the purpose of the ACCC determining whether it is satisfied that the making of the declaration will promote the LTIE as required by s 152AL(3)(d); and
(e) such specificity in the description of the eligible service is essential for the meaningful delineation of the scope and extent of the statutory consequences and obligations which flow from the making of a declaration, including in respect of such matters as access undertakings and access determinations.
47 As mentioned above, the applicant put its central case in two alternative ways. Its primary case is that the eligible service must be “specified” from the time of the proposal to make a declaration through to the making of any such declaration. The applicant acknowledged, however, that it did not deny that the ACCC could conduct preliminary inquiries, falling short of a “public inquiry” about the proper specified eligible service to propose the declaration.
48 The applicant’s alternative case is that the specification of the eligible service may develop or evolve in the course of the public inquiry, and move towards a greater degree of specificity. But the ACCC must have specified an eligible service which is capable of being declared at least by the time when it invites and receives public submissions about, and directs itself as to the application of, the LTIE in the context of the statutory requirement imposed by s 152AL(3)(d).
49 The applicant submitted that its construction was assisted by provisions in both the Telecommunications Act and the CC Act which authorise the ACCC to conduct combined public inquiries, which enable it to consider multiple proposals contemporaneously and to publish a single notice, a single discussion paper, combined hearings and a consolidated report. The applicant also relied upon the ACCC’s power under s 505A to use material from a previous public inquiry, which enables it to avoid duplication.
50 In further support of its construction, the applicant drew attention to the relationship between ss 152AL(3) and (3A). The latter provision provides that a declaration of a specified eligible service under s 152AL(3) does not apply to an eligible service which is supplied, or is capable of being supplied, by an NBN corporation. Moreover, attention was drawn to the relationship between ss 152AL(3) and (3B) and (8A). The former provision requires the ACCC, before commencing to hold a public inquiry into Pt 25 about a proposal to make a declaration under s 152AL(3) in relation to an eligible service, to consider whether to hold a public inquiry under Pt 25 about a proposal to make a declaration under ss 152AL(8A) in relation to that service. A declaration made under the latter provision can only relate to a specified eligible service which is supplied, or is capable of being supplied, by a specified NBN corporation. The applicant submitted that the effect of these provisions was to require the ACCC to direct its attention to whether there was comparable particularity and that this could only occur if the eligible service is specified at the commencement of the process.
51 The applicant emphasised the central significance of the LTIE criterion and the need for the eligible service to be specified at the outset if the public participation processes were to be meaningful, particularly in respect of this criterion. Furthermore, the applicant emphasised the significant commercial and property interests which could be affected by the ACCC’s decision whether or not to declare an eligible service.
52 The applicant relied upon various grounds of judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). They include breach of natural justice; failure to observe procedures required by law; failure to take into account mandatory relevant considerations and error of law (ss 5 and 6 of the ADJR Act). Each of these grounds turned on the central issue of statutory construction bearing upon the applicant’s contentions that the ACCC had not yet commenced a valid public inquiry or, alternatively, is conducting a flawed public inquiry by its failure to date to specify an eligible service. It sought an order under s 16(2)(b) of the ADJR Act directing the ACCC to refrain from holding the purported public inquiry under Pt 25 of the Telecommunications Act and a declaration that the draft decision is affected by error of law because it does not specify the eligible service which the ACCC is considering declaring to be a declared service. Alternatively, the applicant sought various common law relief, including certiorari to quash the draft decision and prohibition or an injunction to restrain the current inquiry from continuing. It is notable that the applicant did not seek a stay or interlocutory injunctive relief.
The respondents’ submissions summarised
53 On its own application, Telstra Corporation Limited (Telstra) was joined as a respondent in the proceeding. On its own separate application, Optus Mobile Pty Limited (Optus) was granted leave to intervene in the proceeding. The ACCC, Telstra and Optus made submissions in opposition to Vodafone’s claims. It is sufficient to summarise those submissions at a high level of generality in order to avoid duplication because they are largely reflected in the reasons given below for rejecting Vodafone’s cases.
54 The ACCC contended that the statutory scheme was one that did not tie its hands to having to specify a particular eligible service at the outset of the public inquiry. Emphasis was placed on the following particular features of the statutory scheme:
(a) the characteristics and complexities of the telecommunications market and how services can be affected by geographical and technical considerations;
(b) specification may evolve as a result of the public inquiry process itself; and
(c) as matters stood at the time of the hearing, the ACCC did not propose to make any declaration in respect of a wholesale mobile roaming service.
55 The ACCC emphasised how the key provisions in s 152AL(3) of the CC Act are expressed in the past tense, with the exception of paragraph (d). The three conditions to the ACCC’s power to declare a specified service as expressed in paragraphs (a) to (c) all involve a backward-looking exercise. Only paragraph (d) is expressed in the present tense. Accordingly, having regard to these matters, the ACCC submitted that it would be open to it to form the requisite satisfaction immediately prior to the making of any declaration. Moreover, in support of its construction, the ACCC relied upon the fact that, under s 152AL(3)(c), it was open to it to make a declaration within the 180-day period of publishing its report about a public inquiry. The ACCC submitted that this suggests that it need not have formed the requisite satisfaction at the time of the publication of the final report, nor is it confined to matters which emerged during the public inquiry process in informing that satisfaction.
56 Moreover, while the ACCC thought at the time that it was conducting a Pt 25 public inquiry, it submitted that this would not be fatal where there is an alternative available source of power. The ACCC relied upon cases which say that if there is an alternative source of power the fact that a decision-maker has relied wrongly on another source of power is not fatal. The ACCC made detailed submissions concerning relief in the event that Vodafone’s construction was upheld. Emphasis was placed on the concession made by Vodafone to the effect that the ACCC can conduct a preliminary inquiry, prior to commencing a public inquiry. Accordingly, the ACCC submitted that, if necessary, it was open to the Court to characterise what had occurred as a preliminary inquiry.
57 Telstra submitted that Vodafone’s construction should not be accepted because it was inconsistent with the broad discretionary power conferred upon the ACCC by s 152AL to declare a specified eligible service. It submitted that the breadth of this discretion is reflected in the limited nature of the constraints placed upon it in provisions such ss 152ALA(7) and 152AL(3B). Telstra said that the only purported fetter relied upon by Vodafone is s 152AL(3)(a), but Telstra emphasised that that paragraph is a fetter on the power to declare, not on the conduct of a public inquiry under Pt 25 of the Telecommunications Act. Telstra submitted, moreover, that that fetter on the power to declare only arises at the time of declaration. At the time of the hearing no final decision had been made one way or the other by the ACCC on the issue of declaration.
58 Telstra also emphasised the importance of the word “specified”. It submitted that the meaning of that word is specification or designation, rather than particularity itself. A specified eligible service needs to be clearly defined, but that does not mean that it cannot be broadly defined.
59 Telstra contended that the Note to s 152AL(3) is an important aid to statutory construction. This is because it confirms that specification can be by way of name (eg domestic mobile roaming service), by being part of a class (a genus or a species, as opposed to sub-species) or in some other way.
60 Telstra drew attention to the breadth of the word “about” in s 497 of the Telecommunications Act. It submitted that this term should be given its ordinary meaning, in the sense of looking at something from various sides and angles. Telstra submitted that, for the purpose of conducting a public inquiry, all that was needed is an eligible service as the subject matter of the public inquiry and the specification can come later if and when the ACCC is satisfied that the conditions to the making of such a declaration exist.
61 Telstra submitted that, in any event, a wholesale domestic mobile roaming service would be a sufficient specification in its own right. It referred to pages 63, 65 and 67 of the ACCC’s discussion paper, which addresses various matters bearing upon the specification of the eligible service. It contended that all the questions posed by the ACCC in those passages relate to the various permutations within the overall class of a wholesale domestic mobile roaming service.
62 Optus submitted that Vodafone’s construction could be tested by asking: Is the ACCC’s public inquiry to date (i.e. at the date of the Court hearing) something which may in future be capable of characterisation as an inquiry “about a proposal to make the declaration” for the purposes of s 152AL(3)(a)? Optus submitted that the ACCC discharged its relevant legal obligations by publishing in the discussion paper a detailed description of the mobile roaming service and its different parameters.
63 Optus also challenged Vodafone’s reliance on the Full Court’s observations in Seven Cable that a declared service must be “adequately specified so that it may be identified”. Those observations were made in the context of the ACCC having issued a deeming statement under transitional provisions that were intended to preserve access arrangements in place prior to the introduction of Pt XIC. The ACCC had specified a service in a way that was intended to address unbundling, but in doing so, it specified only part of a service when, in fact, optional extras were required to supply the service. Optus emphasised that the Full Court was not considering when adequate specification must occur before the making of a declaration (or, in that case, transitional deeming), but rather whether the ACCC had adequately specified a service.
64 Optus challenged Vodafone’s reliance upon Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2002] FCA 589; 173 ALR 362 (Foxtel Management). Optus submitted that both the Full Court and the primary judge in that litigation adopted an approach which supported the view that service description can and should evolve during the public inquiry process and as a result of submissions made by interested parties, referring in particular to Foxtel Management at [55].
Disposition of the judicial review challenge
65 The contemporary approach to statutory construction in Australia is well settled. It was recently described by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 at [14] (footnotes omitted):
14. The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
66 The recent observations of Gageler J in Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54 at [71] are also relevant to the task of construction in the particular circumstances here (footnote omitted):
71. Difficult though it is, the constructional choice can and must be made in the application of workaday interpretative methodology. Nothing simpler or more sophisticated is involved than attempting sympathetically to determine which construction of the contested statutory text better fits the context of the statutory scheme of which that text forms part. Linguistic indications are important. More important is the “purpose and policy” reasonably attributed to the provision within the statutory scheme.
67 It is convenient to first address Vodafone’s primary case on the proper construction of s 152AL(3) before turning to its alternative case.
(a) Vodafone’s primary case
68 As noted above, Vodafone’s primary contention is that, for the purposes of s 152AL(3)(a), an inquiry must commence with a “specified eligible service” which effectively means that, at the time a public inquiry commences, the ACCC must already have determined the terms of a proposed declaration.
69 For the following reasons, Vodafone’s primary case should be rejected.
70 First, I accept the ACCC’s submission that, for the purpose of determining whether an inquiry is an inquiry within the meaning s 152AL(3)(a) the correct question is not to put at the forefront of the case, as Vodafone does, the meaning of the word “specified” or the phrase “specified eligible service”. Rather, the correct approach is to focus on the issue whether, at the time when the ACCC is determining whether or not to make a direct declaration, the preceding public inquiry can properly be characterised as being “about a proposal to make the declaration”. The central flaw in Vodafone’s primary case is that it obscures the important fact that a public inquiry under Pt 25 of the Telecommunications Act is distinct from, albeit related to, the making of a declaration under s 152AL of the CC Act.
71 The four conditions to the ACCC’s power to make a declaration under s 152AL(3) are set out in paragraphs (a) to (d) of that provision, namely:
(a) that the ACCC “has held” a public inquiry under Pt 25 of the Telecommunications Act “about a proposal to make the declaration”;
(b) the ACCC has produced a report about the inquiry under s 505 of the Telecommunications Act;
(c) the declaration is made not more than 180 days after the report was published; and
(d) the ACCC is satisfied that the making of the declaration will promote the LTIE.
72 There is a clear relationship between the conduct of a Pt 25 public inquiry and the making of a declaration, but they are distinct processes. This is reflected in the fact that a declaration may be made within a six month period after a report on a Pt 25 inquiry is published. Moreover, it is implicit in s 152AL(3) that a Pt 25 inquiry terminates when a report is published in accordance with s 505 of the Telecommunications Act.
73 Secondly, Vodafone’s primary case sits uncomfortably with the breadth of the provisions in Pt 25 of the Telecommunications Act. It is notable that the relevant provisions give the ACCC considerable flexibility in initiating and conducting public inquiries, which is scarcely surprising having regard to what one would expect from the notion of an “inquiry”, which is intended to inform the ACCC’s decision-making. Such provisions include:
s 497, which empowers the ACCC to hold a public inquiry “about a matter relating to the ACCC’s telecommunications functions and powers” if the ACCC considers that “it is appropriate and practicable” to do so;
s 498(1)(c), which obliges the ACCC to give notice, in whatever ways it thinks appropriate, of various matters, including the fact that it is holding the inquiry, the “nature of the matter to which the inquiry relates” and “the matters that the ACCC would like [public] submissions to deal with”;
s 499, which empowers the ACCC to prepare and publish a discussion paper that identifies the issues that, in its opinion, are relevant to the matter which is the subject of the public inquiry and to set out such material and discussion concerning the issues relevant to the subject matter as the ACCC thinks appropriate;
s 500, which obliges the ACCC to provide the public with a reasonable opportunity to make a written submission “about the matter to which a public inquiry relates”; and
s 505, which obliges the ACCC to prepare a report which sets out its findings as a result of its public inquiry, which findings may include a decision not to make a declaration.
74 It may be accepted that if the ACCC ultimately determines to declare an eligible service the declaration must have sufficient specificity so that those who are affected by it, particularly access providers and access seekers, know precisely what are its terms and limits. The holding of a Pt 25 inquiry and the making of a declaration are different, albeit related, steps in the process contemplated by s 152AL(3). Merely because it is essential that a declaration have a high and precise degree of specificity does not mean that the same specificity is required throughout the entire course of a Pt 25 public inquiry. Indeed, such a construction sits uncomfortably with the dynamic and iterative qualities of such an inquiry. The legislative scheme contemplates, for example, that the ACCC may publish a discussion paper in relation to “a matter” relating to its telecommunications functions and powers. It may canvass a range of options that might be addressed in a declaration concerning an eligible service. In the case of a wholesale domestic mobile roaming service, such options could include the geographic scope of the declaration, as well as different options relating to the types of technology and particular services to be covered by the declaration. As the ACCC pointed out, where it proceeds to declare a specified eligible service by reference to one particular permutation or option, the inquiry could still properly be characterised as being one “about” a proposal to make that declaration even though it could equally be characterised as being an inquiry about possible declarations concerning other permutations. Similarly, if an inquiry commences without a precise description of a specified eligible service, but such a description emerges during the course of the conduct of the inquiry, possibly in response to submissions received by the ACCC, the inquiry can still properly be characterised as being an inquiry “about a proposal to make the declaration”.
75 Thirdly, I accept the respondent’s submissions that adoption of Vodafone’s primary case could lead to irrational, impractical and unintended outcomes which suggest that its construction should not be accepted. It is well settled that where there is a choice between “two strongly competing interpretations… the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention” (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 321 per Mason and Wilson JJ and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ). In particular:
(a) on Vodafone’s construction, the ACCC is obliged to commit and confine itself from the outset of an inquiry to considering only one or more particular specified eligible services which are proposed for declaration. The ACCC would be powerless to change the proposed service description without commencing a new inquiry, notwithstanding that, for example, during the course of the inquiry, and possibly as a result of submissions it receives, the ACCC sees merit in changing the proposed service description;
(b) Vodafone’s primary case would produce unwieldy and unlikely consequences. There is no legal obligation on the ACCC to provide any person with an opportunity to make submissions prior to the commencement of a Pt 25 inquiry. Accordingly, it is open to the ACCC to commence an inquiry without providing any potential access provider or access seeker with an opportunity to comment on a proposed service description before the inquiry commences. If it then emerges during the course of the inquiry, possibly as a result of submissions it receives, that the proposed specification is inappropriate, under Vodafone’s case, the ACCC would have to start the process again. Section 505A may operate to alleviate some of the inconvenience but it is not a complete answer; and
(c) the ACCC’s power under s 152AN to combine two or more public inquiries of a kind mentioned in s 152AL(3)(a) does not avoid the impracticalities created by acceptance of Vodafone’s primary case. That is because, according to that case, the ACCC would need to “specify” the various eligible services at the outset of the combined public inquiries and in advance of the statutory public consultation process. The ACCC would have no legal capacity to “fine-tune” the description of the possible specifications during the course of the combined inquiries. That seems most improbable.
76 The need for considerable flexibility in this area is well reflected by the facts of this particular case. It is not suggested that the task of statutory construction is to be determined by reference to such facts. Rather, the facts support the ACCC’s construction, having regard to matters of text, context and purpose.
77 The public inquiry commenced by the ACCC into the possible declaration of a wholesale domestic mobile roaming service was sufficiently broad to accommodate more than one form of declaration relating to such a service. Notably, one of the very matters upon which the public were invited to make submissions was the formulation of an appropriate declaration in respect of that subject matter (see [14] above). The discussion paper expressly stated that if the ACCC was ultimately to decide to make a declaration, it would be “necessary to consider a service description and the scope of that service description” and that key relevant issues would be the “geographic areas”, “network technology” and “type of mobile services” to be covered by a declaration. Each of Vodafone, Telstra and Optus responded to that specific invitation and made submissions on what would be the appropriate service description, including by reference to geographic areas and whether the declaration should be confined to Telstra coverage areas or extend to areas covered by both Telstra and Optus.
78 Telecommunications services and products, including “eligible services” as statutorily defined, are notoriously complex, as is reflected on the face of cases such as Seven Cable, Telstra Corporation, Foxtel Management and the circumstances of this particular case. Although some eligible services can be expressed at a broad level of generality, such as “local loops” or “wholesale domestic mobile roaming service”, there are numerous permutations and nuances below such general descriptions. To require the ACCC, at the outset of a public inquiry in relation to whether to declare an eligible service under s 152AL(3), to identify the precise description and terms of any such ultimate declaration and without any capacity to vary the description as a result of further reflection by the ACCC and informed by public submissions it receives would be to impose an inflexible and rigid process which is not supported by the two relevant statutory regimes.
79 I accept Telstra’s submission that Vodafone has not offered a sufficient explanation as to why the Parliament would have conferred on the ACCC broad powers to conduct public inquiries and to make the completion of a public inquiry an essential prerequisite to the making of a declaration under s 152AL(3), yet deny the ACCC power to include as part of such a public inquiry the very issue of the precise form of declaration or service description in respect of the subject matter of the inquiry.
80 I do not accept Vodafone’s submissions that such specificity at the outset of the public inquiry process is necessary to give effect to statutory provisions relating to public consultation and the ACCC’s assessment of the various conditions set out in s 152AL(3). It is revealing that Vodafone availed itself of the opportunity to make submissions as invited by the ACCC in the discussion paper without any complaint that it was disabled from doing so because of the alleged absence of specificity in the concept of a wholesale domestic mobile roaming service. Nor did Vodafone complain, prior to the commencement of these proceedings, that the ACCC lacked power to conduct the public inquiry which occurred. This is not a case where the subject matter of the public inquiry was expressed at such a high and imprecise level of generality that the public consultation process was meaningless.
81 Nor do I accept Vodafone’s related submission that, in view of s 152AL(3)(d) (which imposes a condition on the making of a declaration that the ACCC be satisfied that the declaration will promote the LTIE), a valid public inquiry must necessarily involve a consideration of that issue by the ACCC in the steps leading up to its decision whether or not to declare a service. In my view, this submission is flawed because it fails to recognise that, although the conduct of a public inquiry and the making of a declaration are related, they are also separate. It is important to recognise that a Pt 25 public inquiry need not result in a decision one way or the other in respect of a proposed declaration.
82 Naturally, of course, the need to be satisfied of the LTIE criteria as a condition to the making of a declaration must be appreciated by the ACCC. That is simply because one possible outcome which may result from the conduct of the inquiry is the making of a declaration. Necessarily, therefore, the ACCC will need to be satisfied of the LTIE criterion in s 152AL(3)(d) at a future point in time if that outcome crystallises. That is a different proposition, however, from saying that, from the outset of a public inquiry, the ACCC must apply the LTIE criterion against a particular form of proposed declaration.
83 It is desirable to deal specifically with four points raised by Vodafone in reply. First, Vodafone contended that any inflexibility or impracticability created by its preferred construction “is entirely appropriate and contemplated by the statutory scheme”. It calls in aid of this contention the notion that, where a statute is capable of more than one construction, a construction which interferes least with private property rights should be preferred (citing, for example, Clissold v Perry [1904] HCA 12; 1 CLR 363 (Clissold) at 373 per Griffith CJ and at 378 per Barton and O’Connor JJ).
84 In my view, the practical consequences of Vodafone’s construction cannot be discarded so easily. I reject the submission that “inflexibility and impracticability” are built into the statutory regime. On the contrary, as emphasised above, the statutory scheme is one which confers a range of broad discretionary powers on the ACCC, most of which are conditioned on the ACCC’s judgment and evaluation of relevant matters.
85 As to Vodafone’s reliance on cases such as Clissold, I consider that the relevant presumption carries little, if any, weight when it is raised in the context of statutory regime such as this one which seeks to balance a range of competing statutory rights and entitlements of service providers and access seekers (see generally Pearce and Geddes, Statutory Interpretation in Australia, 8th edition, 2014, at [5.23]). The significance of these considerations and the relevance of the extensive regulatory statutory regime which creates statutory rights of access to another telecommunications operator’s network is reflected in Telstra Corporation Ltd v The Commonwealth of Australia [2008] HCA 7; 234 CLR 210, albeit in the context of a complaint that provisions in Pt XIC effected an acquisition of Telstra’s property other than on just terms and contrary to s 51(xxxi) of the Constitution.
86 Secondly, I reject Vodafone’s contention that the issue of statutory construction is not assisted by the proposition that a public inquiry and a declaration are distinct aspects of the procedure by which the ACCC may declare a specified eligible service. In particular, I reject Vodafone’s submission that, under the ACCC’s construction, the ACCC would have power to conduct a public inquiry without ever specifying the eligible service proposed to be declared, and then subsequently declare some hitherto unannounced specification of the eligible service. That submission glosses over the terms of the four pre-conditions to the declaration of a specified eligible service in s 152AL(3), most notably the condition in paragraph (a) thereof which requires the ACCC to have held a Pt 25 public inquiry “about a proposal to make the declaration”. Necessarily, therefore, at the point in time when the ACCC determines to make a declaration it must determine whether it has held such an inquiry. This determination is properly characterised as a jurisdictional fact or condition precedent to the exercise of the ACCC’s power to declare. Whether or not there has been a public inquiry under Pt 25 of the Telecommunications Act “about a proposal to make the declaration” is a matter of objective determination and is itself amenable to judicial review. It is notable that the condition in s 152AL(3)(a) is not expressed by reference to the ACCC’s satisfaction or subjective state of mind, in contrast with the condition in s 152AL(3)(d).
87 Nor do I accept Vodafone’s contention that the term “about” in context of the phrase which appears in s 152AL(3)(a) (i.e. “about a proposal to make the declaration”) should be given a narrower construction, along the lines of requiring that there has been an inquiry “into” a proposal to make the declaration. The Macquarie Dictionary 5th edition, gives no less than 21 ordinary meanings of the term “about”. When used as a preposition, eight ordinary meaning are given:
1. of; concerning; in regard to: to talk about secrets. 2. connected with: instructions about the work. 3. somewhere near or in: she is about the house. 4. near; close to: about my height. 5. on every side of; around; the railing about the tower. 6. on or near (one’s person): they had lost all they had about them. 7. here and there in or on: wander about the place. 8. concerned; engaged in doing…
Having regard to considerations of both text and context, the term “about” should be given a broad construction which is reflected in synonyms such as “concerning” or “regarding” or “in regard to”.
88 Thirdly, I do not consider that Vodafone’s construction is assisted by the requirement in s 505(1) of the Telecommunications Act which obliges the ACCC to prepare a report setting out its findings if it holds a Pt 25 public inquiry. It may be accepted that the content of that obligation is informed by the character and purpose of the public inquiry, as Vodafone contended. That does not mean, however, that this obligation is only capable of performance if the findings have to relate to a particular or specified eligible service. I do not accept Vodafone’s contention that, while not every inquiry may ultimately end in a decision by the ACCC to declare a specified eligible service, there is a requirement that, at some relevant point in the inquiry process, the inquiry must be constituted such as to permit that possibility. Contrary to Vodafone’s submission, the statutory language does not direct that position.
89 In any event, even if Vodafone’s contention was accepted, I consider that the ACCC’s description of the subject matter of the inquiry being whether or not to declare a wholesale domestic mobile roaming service would constitute a sufficient description for the purposes of the conduct of the public inquiry, recognising that the description may be fine-tuned as a result of the public inquiry and the ACCC’s consideration of the relevant statutory criteria which govern its decision whether or not to declare a specified eligible service. I accept Telstra’s submission regarding the significance of the text and breadth of the Note to s 152AL(3).
90 Fourthly, Vodafone was critical of the submission advanced by both Telstra and Optus (not, however, the ACCC) that the reference in s 152AL(3B) to “eligible service” (i.e. without the adjective “specified”) means that a proposal to make a declaration under s 152AL(3) need only be “in relation to an eligible service”. In my view, the terms of s 152AL(3B) are of limited relevance to the task of statutory construction here. In particular, I do not consider that the absence of the term “specified” in the phrase “eligible service” assists. Both ss 152AL(3A) and (3B) are directed to the situation where an eligible service is supplied by an NBN corporation. The statutory regime contains discrete provisions relating to the declaration of, and access to, eligible services supplied by an NBN corporation (see, in particular, s 152AL(8A)). The effect of s 152AL(3A) is that a declaration made under s 152AL(3) does not apply to an eligible service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation. It is necessarily implicit in this concept that the declaration relates to a specified eligible service, thus there was no need to use the phrase “specified eligible service” in s 152AL(3A). Sub-section 152AL(3B) is a related provision to s 152AL(3A). They were both introduced at the same time in 2011, together with other provisions relating to an NBN corporation, including s 152AL(3)(8A).
91 These provisions relating to an NBN corporation do not support Vodafone’s preferred construction. The wording of s 152AL(3B) simply recognises that specificity is not, as a matter of fact, required to ascertain whether an eligible service is supplied, or is capable of being supplied, by an NBN corporation. In my respectful opinion, the various provisions in s 152AL which relate to eligible services supplied by an NBN corporation are neutral to the task of statutory construction.
(b) Vodafone’s alternative case
92 As noted above, Vodafone’s alternative case is that, if the ACCC is lawfully able to commence an inquiry without having first settled on a description of the proposed specified eligible service, such specification must occur at least by the time the ACCC invites public submissions about, and directs its attention to, the LTIE criteria.
93 The alternative case should be rejected. It finds no support in the statutory scheme. Moreover, in common with Vodafone’s primary case, it is predicated on an incorrect assumption that a Pt 25 inquiry must end either with a declaration of a specified eligible service or a decision not to declare a specified eligible service. The ACCC is empowered to terminate a public inquiry at any point during the inquiry process. For example, as the ACCC pointed out, if the ACCC commences an inquiry but arrives at a view, prior to having formulated a detailed service description, that the subject matter of the inquiry, however, specified, is not appropriate for declaration, it can terminate the inquiry.
Conclusion
94 For these reasons, Vodafone’s judicial review challenge should be dismissed. All the grounds of review fail because of the rejection of Vodafone’s primary and alternative cases. Within 28 days hereof the parties should seek to agree orders as to costs. If they are unable to do so, within that time each should file and serve a written submission not exceeding three pages setting out the orders for which it contends and brief reasons in support. The issue of costs will then be determined on the papers and without a further oral hearing.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. |
