Federal Court of Australia

Mosaic Brands Ltd v Australian Communications and Media Authority [2022] FCAFC 79

ORDERS

THE COURT ORDERS THAT:

1.    The notice of contention is dismissed.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondents’ costs, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The Australian Communications and Media Authority (ACMA) is an entity of the Commonwealth established by the Australian Communications and Media Authority Act 2005 (Cth) (ACMA Act). The ACMA has a number of functions and powers which include, inter alia, the regulation of telecommunications in accordance with the Telecommunications Act 1997 (Cth), and other functions and powers conferred on it by, or under, the Telecommunications Act and other Commonwealth statutes, one of which is the Spam Act 2003 (Cth). Section 522 of the Telecommunications Act authorises the ACMA to require a person, by written notice, to give it any information or produce to it any documents that it has reason to believe are in the person’s possession which are relevant to the performance of any of its telecommunications functions or the exercise of any of its telecommunications powers. It is an offence to engage in conduct which contravenes a requirement in a notice issued under that section.

2    On 13 August 2020, the ACMA issued a notice (Notice) to Mosaic Brands Limited (Mosaic) pursuant to s 522 of the Telecommunications Act 1997 (Cth), requiring Mosaic to provide to it certain information and produce specified documents.

3    The primary judge dismissed Mosaic’s application which challenged the validity of the Notice. In summary, the primary judge concluded that there is an implied entitlement disclosure condition in s 522(2) of the Telecommunications Act, which requires that a notice specify, with reasonable clarity, that the information required to be given and/or the documents required to be produced relate to the performance or exercise of one or more of the ACMA’s telecommunications functions or powers. The primary judge concluded that as the relevant function or power in this case is the power conferred by s 510 to investigate a matter of a kind referred to in s 508, the condition will not be satisfied unless it appears from the Notice that the information or documents sought relate to one or more matters of that kind. The Notice was held to comply with the implied entitlement disclosure condition: at [81].

4    This appeal challenges that order, on the grounds in the further amended notice of appeal dated 1 November 2021, which are as follows (with the deleted portions and underlining removed):

1.    The trial judge erred in finding that the Notice entitled “Notice to Give Information and Produce Documents” (Notice) a copy of which was attachment A to the Amended Originating Application dated 28 October 2020 and which was dated 13 August 2020 satisfied the condition implied in s. 522 of the Telecommunications Act 1997 (Cth) (Telecommunications Act) that any notice issued pursuant to s. 522 disclose on its face that the First Respondent is entitled to require the recipient of the notice to furnish the information and produce the documents which the notice describes (Entitlement Disclosure Condition).

2.     The trial judge ought to have found that the Notice did not meet the Entitlement Disclosure Condition because:

a.    the Notice asserts the First Respondent is entitled to require the Appellant to disclose information and documents relevant to an investigation of the Appellant’s “associated conduct” but does not contain sufficient information to enable the Appellant to assess whether:

i.    the “associated conduct” is the subject of any suspicion held by ACMA or complaint made to ACMA; and

ii.    the information and documents specified, or any of them, are relevant to the First Respondent’s investigation of its “associated conduct” and validly required to be produced;

b.    the Notice asserts the First Respondent is entitled to require the Appellant to disclose information and documents relevant to conduct which is the subject of the First Respondent’s suspicion that the Appellant may have contravened the Spam Act but does not contain sufficient information to enable the Appellant to assess whether the information and documents specified are relevant to any conduct the subject of that suspicion and validly required to be produced; and

c.    further and in the alternative to paragraphs 2(a) and 2(b), the Notice fails to specify the matter or matters which are the subject of the First Respondent’s investigation.

3.    The trial judge erred in finding that the First Respondent’s entitlement to require the Appellant to give the information or produce the documents referred to in the Notice required no more than that the information and documents sought are relevant to an investigation into a contravention of the Spam Act 2003 (Cth) (the Spam Act) or Regulations under that Act.

Particulars

Reasons for Judgment, [62], [76]

4.    The trial judge ought to have found that the First Respondent’s entitlement to require the Appellant to give the information or produce the documents referred to in the Notice was limited to information and documents which relate to a matter or matters which the First Respondent has reason to suspect constitute contraventions of the Spam Act or Regulations under that Act.

5    On 9 August 2021, the ACMA filed a notice of contention dated 6 August 2021, alleging:

1.    The primary judge erred in concluding (at [39], [57], [59], [62] and [81](1) of the judgment) that a notice issued pursuant to section 522 of the Telecommunications Act 1997 (Cth) is subject to an implied entitlement disclosure condition requiring, as a condition of validity, the notice to disclose that the ACMA is entitled to require the recipient to give the information or produce the documents described in the notice.

2.    In the alternative, the primary judge erred in concluding (at [62] and [81](1) of the judgment) that the implied entitlement disclosure condition required, in the present case, that it appear from the notice that the information or documents sought relate to a body of facts which may constitute a contravention of section 16 or section 18 of the Spam Act 2003 (Cth).

6    From the notice of appeal and notice of contention the parties identified the following issues that arise: first, whether s 522 of the Telecommunications Act is subject to, as a condition of validity, an implied entitlement disclosure condition; second, if it is, the content of that condition; and third, whether the Notice satisfied that condition.

7    That said, it is important to recognise that the primary issue on this appeal is the third issue: whether the Notice complies with any entitlement disclosure condition that might apply.

8    For the reasons below, the appeal is dismissed.

The Notice

9    The Notice is in the following terms:

•    If the ACMA has reason to suspect that a person may have contravened the Spam Act 2003 (Spam Act) or regulations made under the Spam Act it may commence an investigation into this contravention (paragraph 510(1)(ab) of the Telecommunications Act).

•    The ACMA has received complaints between 10 October 2019 to 31 July 2020, which lead it to suspect that Mosaic Brands may have contravened section 16 and/or section 18 of the Spam Act. These complains relate to:

•    commercial electronic messages being sent without the consent of the recipient (section 16); and

•    commercial electronic messages failing to contain a functional unsubscribe facility (section 18).

•    As a result of the complaints, and the ACMA’s suspicion that Mosaic Brands may have contravened the Spam Act, the ACMA has commenced an investigation into the associated conduct of Mosaic Brands.

•    Paragraph 510(1)(ab) of the Telecommunications Act authorises the ACMA to investigate a contravention of the Spam Act or regulations under the Spam Act if the ACMA has reason to suspect that a person may have contravened the Spam Act or regulations under the Spam Act. Therefore, when the ACMA has reason to suspect that Mosaic Brands has contravened the Spam Act, an investigation into such conduct is relevant to the performance of the ACMA’s telecommunications functions and in the exercise of the ACMA’s telecommunications powers. The information and documents required in this Notice are relevant to the performance of those functions and the exercise of those powers to investigate whether Mosaic Brands has contravened the Spam Act.

•    Mosaic Brands was first informed of this investigation in a letter from the ACMA dated 10 February 2020.

10    In addition, three schedules were attached thereto. Schedule A contained definitions of terms used throughout the Notice. Schedule B set out the information and documents required for production to the ACMA. That included information about commercial electronic messages sent to specific addresses, information about unsubscribe messages sent to Mosaic, and documents relating to either type of message. Schedule C identified 153 electronic addresses, including email addresses and telephone numbers.

11    A copy of the Notice the subject of this appeal is annexed to these reasons as annexure A.

Statutory regime

12    As noted above, the ACMA is established by the ACMA Act: s 6.

13    Its functions are set out in Div 2, which relevantly includes s 8, in the following terms:

8 ACMA’s telecommunications functions

(1)     The ACMA’s telecommunications functions are as follows:

(a)     to regulate telecommunications in accordance with the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999;

   (b)     to advise and assist the telecommunications industry;

(c)     to report to and advise the Minister in relation to the telecommunications industry;

(d)     to report to and advise the Minister in relation to matters affecting consumers, or proposed consumers, of carriage services;

(e)    to manage Australia’s input into the setting of international standards for telecommunications (except so far as Standards Australia is responsible for managing that input);

(f)    to monitor, and report to the Minister on, all significant matters relating to the licensing of carriers under the Telecommunications Act 1997;

(g)    to make available to the public information about matters relating to the telecommunications industry;

(h)    to conduct public educational programs about matters relating to the telecommunications industry;

(i)    to give advice to the public about matters relating to the telecommunications industry;

   (j)    such other functions as are conferred on the ACMA by or under:

   (i)    the Spam Act 2003; or

   (ia)    the Do Not Call Register Act 2006; or

   (ii)    the Telecommunications Act 1997; or

(iii)    the Telecommunications (Carrier Licence Charges) Act 1997; or

(iv)    the Telecommunications (Consumer Protection and Service Standards) Act 1999; or

(iva)    Chapter 4 or 5 of the Telecommunications (Interception and Access) Act 1979; or

   (v)    the Telecommunications (Numbering Charges) Act 1997; or

   (vi)    Part XIC of the Competition and Consumer Act 2010;

(k)    to monitor, and to report to the Minister on, the operation of each Act specified in paragraph (j), to the extent it is so specified;

(l)    to do anything incidental to or conducive to the performance of any of the above functions.

(2)     An expression used in this section that is also used in the Telecommunications Act 1997 has the same meaning in this section as it has in that Act.

14    As is apparent, and noted above, those functions are broad-ranging and include regulation of telecommunications in accordance with the Telecommunications Act. Part 27 of that Act provides, inter alia, for the ACMA’s information gathering powers.

15    Relevantly, s 522 in the Telecommunications Act is the power to issue a notice to a person, and is as follows:

522 The ACMA may obtain information and documents from other persons

(1)    This section applies to a person if the ACMA has reason to believe that the person:

 (a)    has information or a document that is relevant to:

(i)     the performance of any of the ACMA’s telecommunications functions; or

(ii)     the exercise of any of the ACMA’s telecommunications powers; or

(b)    is capable of giving evidence which the ACMA has reason to believe is relevant to:

(i)     the performance of any of the ACMA’s telecommunications functions; or

(ii)     the exercise of any of the ACMA’s telecommunications powers.

(2)     The ACMA may, by written notice given to the person, require the person:

(a)     to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or

(b)    to produce to the ACMA, within the period and in the manner specified in the notice, any such documents; or

(c)    to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies; or

(d)    if the person is an individual—to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or

(e)    if the person is a body corporate or a public body—to cause a competent officer of the body to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents; or

(f)    if the person is a partnership—to cause an individual who is:

(i)    a partner in the partnership; or

(ii)    an employee of the partnership;

to appear before the ACMA at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

(3)    A person must comply with a requirement under subsection (2).

(4)     A person commits an offence if:

(a)     the ACMA has given a notice to the person under subsection (2); and

(b)    the person engages in conduct; and

(c)     the person’s conduct contravenes a requirement in the notice.

Penalty: 20 penalty units.

(5)     A notice under this section must set out the effect of subsection (4) and section 525.

(6)     In this section:

engage in conduct means:

(a)     do an act; or

(b)     omit to perform an act.

16    The power to issue a notice to carriers and service providers is in similar terms: s 521.

17    It is an offence to give false or misleading information or evidence under ss 521 and 522: s 525.

18    Investigations are addressed in Part 26.

19    Section 508 is as follows:

508 Matters to which this Part applies

This Part applies to the following matters:

(a)     a contravention of this Act;

(aa)    a contravention of the Telecommunications (Consumer Protection and Service Standards) Act 1999 or regulations under that Act;

(ab)     a contravention of the Spam Act 2003 or regulations under that Act;

(ac)     a contravention of the Do Not Call Register Act 2006 or regulations under that Act;

(b)     a contravention of a code registered under Part 6;

(c)     a failure by a carriage service provider to comply with an obligation, or discharge a liability, under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;

(d)    a matter relating to the supply of, or a refusal or failure to supply, a carriage service;

(e)     a matter relating to the connection of, or a refusal or failure to connect, customer equipment;

(f)     a matter relating to the performance of the ACMA’s telecommunications functions, or the exercise of the ACMA’s telecommunications powers;

except to the extent (if any) to which the matter relates to the content of a content service.

20    Section 510 sets out the powers of investigation by the ACMA:

510 Investigations by the ACMA

(1)     The ACMA may investigate a matter of a kind referred to in section 508 if:

(a)     in the case of a matter covered by paragraph 508(a)—the ACMA has reason to suspect that a person may have contravened this Act; or

(aa)     in the case of a matter covered by paragraph 508(aa)—the ACMA has reason to suspect that a person may have contravened the Telecommunications (Consumer Protection and Service Standards) Act 1999 or regulations under that Act; or

(ab)     in the case of a matter covered by paragraph 508(ab)—the ACMA has reason to suspect that a person may have contravened the Spam Act 2003 or regulations under that Act; or

(ac)     in the case of a matter covered by paragraph 508(ac)—the ACMA has reason to suspect that a person may have contravened the Do Not Call Register Act 2006 or regulations under that Act; or

(b)     in any case—a complaint is made under section 509; or

(c)     in any case—the ACMA thinks that it is desirable to investigate the matter.

(2)    The ACMA must not conduct such an investigation if it thinks that the subject matter of the investigation would not be a matter relevant to the performance of any of its functions.

(3)     The ACMA must investigate:

(a)     a matter of a kind referred to in section 508; or

(b)     any other matter concerning carriage services or the telecommunications industry;

if the Minister requests the ACMA so to investigate.

21    It is appropriate also to refer to s 512, which governs the conduct of the investigations:

512 Conduct of investigations

(1)     Before beginning an investigation of a matter to which a complaint relates, the ACMA must inform the respondent that the matter is to be investigated.

(1A)     However, the ACMA is not required to inform the respondent that the matter is to be investigated if:

(a)     the matter relates to a possible breach of:

(i)     the Spam Act 2003 or regulations under that Act; or

(ii)     the Do Not Call Register Act 2006 or regulations under that Act; and

(b)    the ACMA has reasonable grounds to believe that informing the respondent is likely to result in the concealment, loss or destruction of a thing connected with the breach.

(2)     An investigation under this Part is to be conducted as the ACMA thinks fit.

(3)     The ACMA may, for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it thinks fit.

(4)     It is not necessary for a complainant or a respondent to be given an opportunity to appear before the ACMA in connection with an investigation. This subsection has effect subject to subsection (5).

(5)     The ACMA must not, as a result of the investigation, make a finding that is adverse to a complainant or a respondent unless it has given the complainant or respondent an opportunity to make submissions about the matter to which the investigation relates.

(6)     However, the ACMA is not required to give the respondent an opportunity to make submissions if:

(a)     the matter relates to a possible breach of:

(i)     the Spam Act 2003 or regulations under that Act; or

(ii)     the Do Not Call Register Act 2006 or regulations under that Act; and

(b)     the ACMA has reasonable grounds to believe that giving the respondent an opportunity to make submissions is likely to result in the concealment, loss or destruction of a thing connected with the breach.

Primary judgment

22    The primary judge summarised the parties’ submissions at [25]-[37], which were repeated in this Court. As referred to above, the primary judge was satisfied that there is an implied entitlement disclosure condition in s 522 of the Telecommunications Act. Her Honour recognised that none of the authorities relied on by Mosaic related to s 522 of the Telecommunications Act, and that there do not appear to be any authorities which have considered the implication of such a condition in respect of either s 522 or “the relevant equivalent” in the Employment Services Act 1994 (Cth) (on which s 522 was based): at [41]. The primary judge analysed the authorities relied on, referring in particular to Federal Commissioner of Taxation v Australia and New Zealand Banking Group Limited [1979] HCA 67; 143 CLR 499 (FCT v ANZ); Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565 (Pyneboard); Seven Network Limited v Australian Competition and Consumer Commission [2004] FCAFC 267; 140 FCR 170 (Seven Network); D’Anastasi v Environment, Climate Change and Water (NSW) [2011] NSWCA 374; 81 NSWLR 82; and SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 (SA Brewing). Most of those authorities relate to s 155 of the then Trade Practices Act 1974 (Cth) (TPA) (now the Competition and Consumer Act 2010 (Cth)).

23    The primary judge observed that the question falls to be determined by reference to the text of s 522 of the Telecommunications Act, considered in its context. As to the ACMA’s submission that s 522(5) expressly addresses what a notice is required to include and that “an additional requirement above that is inconsistent with this clear expression of legislative intent through the drafting mechanism of expressing what is required to be contained in a notice”, her Honour observed that it does not follow from the mere fact that the legislation specifies that certain matters must be included that other matters need not be included: at [52]. Her Honour considered the Telecommunications Act and concluded that the power conferred by s 522 is intrusive and broad in scope and that, critically, sanctions are imposed for non-compliance: at [54].

24    The primary judge observed that while the authorities upon which Mosaic relied concern different legislation, the principles for which they stand are not confined to that legislation: at [55]. Her Honour observed that the same approach had been taken in relation to the issue of a notice under s 712 of the Fair Work Act 2009 (Cth) (FW Act): at [56].

25    The primary judge concluded at [57]-[59]:

[57]    Since the refusal or failure to comply with a s 522 notice is a [sic] punishable by a fine and the giving of information that is false or misleading is punishable by imprisonment, the weight of authority indicates that the power conferred by s 522(2) is subject to an implied condition that the notice discloses that the ACMA is entitled to require the recipient to give the information or produce the documents described in the notice.

[58]    It is true, as the ACMA submitted, that Mosaic’s submissions focus on the ACMA’s power of investigation in Pt 26 of the Telecommunications Act, not its power to require the production of information or documents which is contained in Pt 27. It is true, too, as the ACMA also submitted, that there is no reference to “matters” in Pt 27. But Pt 27 cannot be read in isolation from Pt 26. “ACMA’s telecommunications functions” and “ACMA’s telecommunications powers” are defined terms in the Telecommunications Act. The former means “the functions that are telecommunications functions, in relation to the ACMA, for the purposes of the [ACMA Act]” and the latter the powers conferred on the ACMA by a number of Acts including, relevantly, the Telecommunications Act and the Spam Act (s 7). One of the ACMA’s telecommunications powers is the power to conduct an investigation. That is the power with which Pt 26 is concerned. It is evident that one of the purposes of the ACMA’s information-gathering powers, for which Pt 27 provides, is to facilitate or assist its investigation powers.

[59]    Where, as here, the information and documents are sought for such a purpose, in accordance with the line of authorities upon which Mosaic relied, a notice issued under s 522 of the Telecommunications Act must disclose that the ACMA has reason to believe that the person who is served with the notice has information or documents relevant to that purpose. It follows, too, from those authorities, that a notice issued under s 522 will be invalid if it does not appear from its terms that the information required to be given or the documents required to be produced relate to the exercise of those powers.

26    The primary judge addressed specific arguments raised by the ACMA. Her Honour rejected the submission that there is nothing in the text of s 522 to indicate that the words “any such documents” is a reference to documents which are actually relevant to the ACMA’s functions and powers, concluding that the section instead applies to a person “if the ACMA has reason to believe…”: at [60]. As to the submission that the absence of the word “matter” in s 522 or any link in s 522 to any “matter” indicates that there is no reason to limit the power conferred by s 522 by reference to a “matter”, her Honour accepted that the power conferred by s 522 is not confined to information or documents connected to an investigation. At [62] her Honour concluded:

[62]    I accept the ACMA’s submission that the power conferred by s 522 is not confined to information (or documents) connected to an investigation. In the present case, however, the notice is being issued for the purpose of an investigation. The power to investigate conferred by s 510 is limited to a matter of a kind referred to in s 508. It seems to me that, where the power is being exercised for the purpose of an investigation, the entitlement disclosure condition will not be satisfied unless it appears from the notice that the information or documents sought relate to one or more matters of that kind. Here, those matters consist of a body of facts which, depending on what other facts may come to light during or as a result of the investigation, may constitute a contravention of s 16 or 18 of the Spam Act.

27    Having found that an entitlement condition is implied in s 522, the primary judge concluded that the Notice complied with the condition. Her Honour concluded at [73]-[78]:

[73]    Gibbs ACJ observed in FCT v ANZ at 525 that where a notice is directed to a person’s own documents the very description of those documents may be enough to show that the notice is within the relevant power. That appears to be the case here.

[74]    The approach urged on the Court by Mosaic smacks of the “precious”, “over-technical” or “hypercritical” approach to a statutory notice eschewed by the authorities. It is an approach, it will be recalled, that the Full Court in Pyneboard described as “[a]rtificial dissection, in the cause of determined obfuscation”, which “can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning”. The Notice must be read in context and in a fair, non-technical manner. Read in this way, the Notice makes it tolerably clear what documents and information were required and why the ACMA was entitled to require their production. In particular, the Notice made clear that the information and documents related to matters of the kind described in s 508 of the Spam Act [sic].

[75]     The Notice explained that:

(1)     the ACMA had received complaints relating to Mosaic sending commercial electronic messages without the consent of the recipient, which may be a contravention of s 16 of the Spam Act, and commercial electronic messages which do not contain a functional unsubscribe facility, which may be a contravention of s 18 of that Act;

(2)     those complaints were received between 10 October 2019 and 31 July 2020;

(3)     the complaints led the ACMA to suspect that Mosaic may have contravened the Spam Act;

(4)     consequently, the ACMA was authorised to investigate the suspected contraventions;

(5)     the ACMA had commenced an investigation into Mosaic’s “associated conduct”;

(6)     the information and documents sought by the Notice were relevant to the performance of the ACMA’s functions and the exercise of its investigation powers because the ACMA had reason to suspect that Mosaic had contravened the Spam Act; and

(7)     the information and documents related only to “the relevant period”, which was from 1 December 2019 to 31 July 2020.

[76]     In context, the reference to Mosaic’s “associated conduct”, and therefore the object of the investigation, was Mosaic’s involvement in the dispatch of commercial electronic messages without the consent of the recipients and without a functional unsubscribe facility.

[77]     Further, for categories 1–3 in Schedule B to the Notice, the Notice identified the specific electronic addresses in respect of which Mosaic was required to provide the relevant information and documents. For category 4, the Notice specified the date range of the unsubscribe messages sought (in order to address incomplete compliance by Mosaic with an earlier notice). Category 5 was limited to the electronic addresses identified in response to category 4.2.

[78]     For these reasons the relationship between the information and documents the ACMA sought to a matter of the kind referred to in s 508 is apparent on the face of the Notice.

28    The primary judge rejected Mosaic’s submission to the contrary at [64]-[72]. Her Honour also observed at [79]:

[79]     Mosaic did not identify what further information the Notice was required to contain, except for an oblique reference to a “list…of the messages the sending of which was suspected as constituting those contraventions”. I acknowledge that Mosaic does not bear the onus of identifying the details the Notice should contain. But it does bear the onus of establishing that the Notice is invalid. To require a notice to contain the level of detail Mosaic insisted upon would be tantamount to requiring all the facts necessary to constitute a contravention or possible contravention to be pleaded. This approach is contrary to authority (see SA Brewing v Baxt at 370–371 and Seven Network at [49](vii)) and must be rejected. In SA Brewing v Baxt at 371 Fisher and French JJ held that:

Neither the constructional nor policy supports for the entitlement disclosure condition requires that a notice plead a contravention or suspected contravention. It is fundamental that the proper progress of legitimate investigation be not disrupted by what may amount to demurrer or strike out motions on the terms of the notice. Where, however, the “matter” referred to in the notice is incapable, after allowing for undiscovered facts, of amounting to a contravention, then the issue of the notice is not a valid exercise of power.

29    Her Honour concluded at [81] that there is an implied entitlement disclosure condition in s 522(2) of the Telecommunications Act, and that the Notice complies with that entitlement disclosure condition:

[81]    The answers to the questions raised by Mosaic’s application are as follows:

(1)    There is an implied entitlement disclosure condition in s 522(2) of the Telecommunications Act. The notice must specify (with reasonable clarity) that the information required to be given and/or the documents required to be produced relate to the performance of one or more of the ACMA’s telecommunications functions or the exercise of one of more of those powers. Where, as here, the relevant function or power is the power conferred by s 510 to investigate a matter of a kind referred to in s 508, that requirement will not be satisfied unless it appears from the notice that the information or documents sought relate to one or more matters of that kind.

(2)    The Notice complies with the implied entitlement condition. …

Mosaic’s submissions

30    Mosaic contended that the primary judge was correct to conclude that s 522 of the Telecommunications Act is subject to an entitlement disclosure condition.

31    Mosaic’s submission was that for this Notice to be valid it must on its face: (1) convey with reasonable clarity to the recipient the information that must be furnished or the documents that must be produced; and (2) disclose that the ACMA is entitled to require the recipient to furnish the information or produce the documents described.

32    Mosaic submitted that these two conditions are necessary whenever legislation which empowers an administrative decision maker to issue a notice contains two features: first, where the legislation does not empower the decision maker to require the recipient of the notice to furnish any information whatsoever or produce any document whatsoever but only “such information” and “such documents” as are relevant to a specified matter; and second, where the legislation creates an offence for non-compliance with the notice. Where both features are present, a notice will be invalid unless it discloses on its face that the administrative decision-maker is entitled to require the recipient to furnish the specified information or produce the specified documents. Mosaic cited authorities said to support that proposition, relying most heavily on cases which considered s 155 of the TPA. Mosaic cited in support, inter alia, FCT v ANZ at 524 per Gibbs ACJ and 536-537 per Mason J; Pyneboard at 570; Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493; 240 ALR 135 at 143 [36]; MacDonald v Australian Securities Commission (1993) 43 FCR 466.

33    It submitted that the references in s 522(2)(a) and (b) to “such information” and “such documents” limit the information and documents which the recipient of a notice is required to produce to those which are objectively relevant to the performance of the ACMA’s functions and exercise of its powers within the meaning of s 522(1)(a). It submitted that both the first and second features which enliven the rule of implying an entitlement disclosure condition are present. There is nothing in the text, context or purpose of s 522 that excludes the application of the rule. It was said to follow that the primary judge was correct in concluding that a notice issued under s 522 will only be valid if it satisfies the two conditions referred to above at [31].

34    Mosaic submitted that the primary judge was in error in concluding that the entitlement disclosure condition was satisfied by the Notice. It relied on the term “matter” in Pt 26 of the ACMA Act (appearing in ss 508-510) which it said defines and limits the scope of the ACMA’s functions. For example: the use of the term “a matter” in the chapeau to s 510 limits the ACMA’s investigatory functions to “a matter” and the use of the term “matter” in ss 510(1)(a), 510(1)(aa), 510(1)(ab) and 510(1)(ac) limits the investigatory functions conferred in s 510(1) to where there exists a reason to suspect expressly in respect of a “matter”. In that regard, the authorities construing s 155(1) of the TPA are a helpful guide to construing the term “matter” in Pt 26 and understanding its significance to a notice issued under s 522 of the Telecommunications Act. It was submitted that the word “matter” in ss 508 and 510 carries a meaning analogous to that in WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 (WA Pines v Bannerman). It submitted that the primary judge’s conclusion gave no meaning to the term “matter” in those provisions. Mosaic made submissions about aspects of the Notice, contending it did not comply with the condition. It submitted that:

If the ACMA were in fact limiting its investigation to matters which may constitute contraventions of s 16 and s 18 of the Spam Act, it would seem a straightforward matter to identify each matter the subject of a complaint (and therefore being investigated within the limits of ss 508(ab) and 510(1)(b)) and to state the reason that exists for the ACMA to suspect that Mosaic had contravened the Spam Act within the limits of s 510(1)(ab). Instead, the Notice asserts a breadth of investigation untethered to the statutory limits on the ACMA’s functions. That does not enable Mosaic to assess whether the information or documents sought are “such information” or “such documents” as referred to in ss 522(2)(a) and 522(2)(b).

The ACMA’s submissions

35    The ACMA contended that the primary judge erred in divorcing authorities from their statutory context and concluding that the “weight of authority” supported the existence of an entitlement disclosure condition. There is no universal principle that an entitlement disclosure condition attaches to any statutory power of compulsory production, the ACMA submitted, citing, for example, Aurora Construction Materials Pty Ltd v Victorian Workcover Authority [2018] VSCA 165 (Aurora) at [36]. It submitted that such a condition has been adopted in certain statutory contexts, and rejected in others, and provided examples. It submitted that the authorities which had found the existence of an entitlement disclosure condition all involved statutory provisions which have expressly limited the power of compulsory production to specified matters or purposes, citing s 155(1) of the TPA; ss 184 and 193(1) of the Protection of the Environment Operations Act 1997 (NSW); ss 706 and 712 of the FW Act; and s 9 of the Occupational Health and Safety Act 2004 (Vic).

36    The ACMA addressed the statutory regime. First, unlike the statutory regimes which have been found to be the subject of an entitlement disclosure condition, the ACMA’s power under s 522(2) is not confined to specified matters or purposes. Second, s 522(5) expressly addresses what is required to be contained on the face of a notice, namely the effect of ss 522(4) and 525 of the Act. Third, there is nothing in the context and purpose of s 522, including extrinsic material, that would indicate that Parliament contemplated that s 522 would be subject to an entitlement disclosure condition. The ACMA addressed the distinction between provisions of the ACMA Act and s 155 of the TPA, a provision which was the focus of the authorities relied on by Mosaic.

37    It was observed that the proposition underlying Mosaic’s argument is that the ACMA was required to disclose on the face of the Notice the basis of the ACMA’s “reason to suspect” under s 510(ab). It was submitted that her Honour did not endorse such a requirement and such a requirement is unsound.

38    The ACMA submitted that if the condition was implied, the primary judge was correct to find the Notice satisfied it. The authorities, as the primary judge recognised, are clear in respect of the correct approach to ascertaining whether a notice complies with an entitlement disclosure condition, citing, for example, Pyneboard. The ACMA addressed why the Notice does specify the matter or matters the subject of the ACMA’s investigation. The ACMA submitted that Mosaic’s assertion that the Notice does not contain sufficient information to allow it to judge whether the ACMA validly requires the specified information or documents to be given is without foundation. The ACMA addressed the specific criticisms that Mosaic made of the Notice.

Mosaic’s reply

39    In reply, Mosaic contended that it is not necessary for this Court to consider whether the authorities have recognised a “universal principle” for implying an entitlement disclosure condition but rather that it is enough for this Court to apply the narrower principle referred to in [32] above. There is nothing in the authorities to suggest that the entitlement disclosure condition ought not to be implied when the compulsory production required is limited to specified matters or purposes through the ordinary processes of statutory construction. Mosaic submitted that the Notice involves a complete failure to articulate a connection between, on the one hand, the 153 complaints and the “reason to suspect” relevant to those complaints, and, on the other hand, the communications to addresses unconnected to the complaints during the same period.

Consideration

40    As noted above at [31], Mosaic’s submission is that for this Notice to be valid it must on its face: (1) convey with reasonable clarity to the recipient the information that must be furnished or the documents that must be produced; and (2) disclose that the ACMA is entitled to require the recipient to furnish the information or produce the documents described. That latter condition is what has been described as an entitlement disclosure condition: SA Brewing at 370.

41    It is the content of that condition, and whether the primary judge has erred in concluding that this Notice satisfies that condition, to which Mosaic addresses its appeal grounds.

42    Mosaic’s submission as to the Notice cannot be accepted. The appeal must, therefore, be dismissed.

Authorities

43    If such an entitlement disclosure condition exists, its implication arises from s 522, and so its content necessarily turns on a consideration of that provision. Nonetheless, given the content of Mosaic’s grounds of appeal and its reliance on particular authorities, it is appropriate to first consider those authorities.

44    A useful starting point is FCT v ANZ where the High Court was concerned with s 264(1) of the then Income Tax Assessment Act 1936 (Cth) (ITAA). Section 264(1) at that time was as follows:

264 Commissioner may require information and evidence

(1)     The Commissioner may by notice in writing require any person, whether a taxpayer or not, including any officer employed in or in connexion with any department of a Government or by any public authority:

(a)     to furnish him with such information as he may require; and

(b)     to attend and give evidence before him or before any officer authorized by him in that behalf concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto.

45    Of s 264, Gibbs ACJ observed at 524:

The apparent intention of the Parliament is that the Commissioner is entitled to have produced any books and documents that relate to the taxpayer's income or assessment, even if he does not know what those books and documents may reveal. A document may be required to be produced only if it in fact relates to the income or assessment of the person in question, but if it is of that description, that is enough. In other words the Commissioner is entitled to make what was described as a “roving enquiry” into the income or assessment of a particular taxpayer and for that purpose to have produced such documents as relate to that income or assessment.

46    And as to the notices in that case, at 525-526:

The next question that arises is whether the notices given to the Bank were sufficient in form. To be valid a notice to produce documents under s. 264 (1) (b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, “your books of account”) may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind––a requirement to produce documents relating to the income or assessment of some person––and a notice requiring the production of documents not so related is beyond the scope of the power. Similar reasoning was applied, correctly in my opinion, by Burt C.J. in Snow v. Keating (W.A.) (52) where the notice required a taxpayer to give evidence but did not specify the person concerning whose income or assessment the evidence was sought.

47    Of s 264, Mason J observed at 534-535:

The power conferred upon the Commissioner by s. 264 to require a person to furnish information, to attend and give evidence and to require the production of books, documents and other papers enables him to obtain information and inspect documents when the "full and free access" given by s. 263, for whatever reason, is inadequate to enable him to inspect documentary records, though I can see no reason why the exercise of the power should be restricted to these circumstances. Section 264 makes no reference back to s. 263; nor does s. 264 condition the power which it confers upon an exercise of the right of access given by the earlier section, or an attempt to exercise that right. The later section should therefore be construed according to its terms. They are not to be cut down and distorted by the making of a vague and indefinite implication based on the existence of the earlier provision. The fact is that ss. 263 and 264 serve two different purposes. Section 263 is a general provision giving the Commissioner a right of access. It makes lawful that which otherwise would be unlawful, e.g. entry upon premises, the examination of a document. The succeeding section arms the Commissioner with inquisitorial and coercive powers. However, this difference supplies no reason for departing from the language of s. 264 which is expressed in the widest terms. 

Except in one respect the powers given by s. 264 should be circumscribed only by reference to the limitations which are expressed in that section. Thus, in s. 264 (1) (b) the power to compel evidence is restricted to evidence "concerning his or any other person's income or assessment" and the power to require production is confined to documentary records "relating thereto", that is, to "his or any other person's income or assessment". However, the power to require information contained in par. (1) (a) is not similarly limited. As it is a power given to the Commissioner for the purpose of enabling him to perform his functions under the Act it must be circumscribed by reference to this purpose. 

48    Mason J continued at 536:

And, for a similar reason there is nothing in the suggestion that an issue or dispute of fact must first arise between a taxpayer and the Commissioner before the Commissioner can invoke s. 264. There is simply no basis for the implication of such a limitation. The strong reasons which inhibit the use of curial processes for the purposes of a "fishing expedition" have no application to the administrative process of assessing a taxpayer to income tax. It is the function of the Commissioner to ascertain the taxpayer's taxable income. To ascertain this he may need to make wide-ranging inquires, and to make them long before any issue of fact arises between him and the taxpayer. Such an issue will in general, if not always, only arise after the process of assessment has been completed. It is to the process of investigation before assessment that s. 264 is principally, if not exclusively, directed. 

49    This reasoning has been applied in a number of cases involving s 155 of the TPA, for example, in Pyneboard.

50    Section 155(1) was relevantly in the following terms:

155 Power to obtain information, documents and evidence

(1)    Where the Commission, the Chairman or the Deputy Chairman has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of this Act, or is relevant to the making of a decision by the Commission under subsection 93 (3), a member of the Commission may, by notice in writing served on that person, require that person:

(a)     to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;

(b)     to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or

(c)     to appear before the Commission at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.

51    Section 155(5) was in the following terms:

(5)    A person shall not:

(a)     refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it;

(b)     in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading; or

(c)     obstruct or hinder an authorized officer acting in pursuance of subsection (2).

52    In Pyneboard, this Court concluded at 570-572 (footnotes omitted):

The requirement that a notice under s. 155 (1) show the person to whom it is addressed that the Commissioner is entitled to require that he furnish the information or produce the documents which the notice specifies will not be satisfied unless it appears from the notice that the information or documents sought are information or documents “relating” to one or more “matters” of a kind described in the subsection. …

If, on examination of the terms of the notices, it does not appear that the information or documents sought by a particular requirement are information or documents relating to one or other of the above “matters”, the requirement will, at least to the extent to which it would require the furnishing of such information or the production of such documents, be beyond the power conferred by s. 155 (1) of the Act. In this regard however, it should be stressed that the question whether a notice discloses the necessary relatedness between documents or information sought and the identified “matters” is, like the question whether the terms of the notice are sufficiently clear, not to be approached in an over-technical or hypercritical way. As was pointed out in Melbourne Home of Ford Pty. Ltd. v. Trade Practices Commission (No.3) (14) the power conferred by s. 155 (1) is an investigative power which authorizes questions both wide in scope and unspecific in subject matter. The fact that the recipient of the notice is or will, in the event, be unable to supply relevant information or disclose relevant documents will not, in itself, preclude the validity of a requirement in a s. 155 notice. The relevant question is whether the information or documents sought are capable, in a broad investigative context, of being properly regarded as related to any one of the “matters” which the notice identifies.

53    In SA Brewing, again in the context of s 155, this Court at 369-372 applied Pyneboard. The Court went on to explain at 370 that:

As with the requirement that the notice be clear in its terms, this will not support an over-technical or hypercritical approach to its construction: Pyneboard Pty Ltd v Trade Practices Commission (supra) at 376. And it is fundamental, that given the investigative nature of the power under consideration, there is no requirement that the notice “plead” all the facts necessary to constitute a contravention or possible contravention. The words “may constitute” enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: Davenport v Trade Practices Commission (1983) 70 FLR 123 at 130-131 (Northrop J). In doing so however, it is not necessary for the Court to determine whether a contravention has occurred or will occur, nor will it idly speculate or draw on improbable circumstances to uphold the validity of a notice (at 132).

54    The Court considered the basis of the entitlement disclosure condition. It observed at 370 that in respect to FCT v ANZ, the condition as expressed by Gibbs ACJ in the passage recited above is based on the language of s 264 of the then ITAA. The Court observed at 371 that a statutory basis for the condition in s 155 of the TPA was propounded by Davies J in Bannerman v Mildura Fruit Juices Pty Ltd (1982) 2 FCR 581 (Bannerman v Mildura Fruit) at 588-590:

Section 155 of the Trade Practices Act 1974 (Cth) must be given effect in like manner. Not only does the section provide a penalty for breach of the obligation imposed upon the recipient of the notice, but s 155(1) in terms does not empower the Chairman to require the recipient of the notice to provide any information whatever or any document whatever but only ‘such information’ and ‘such documents’, that is to say, information and documents ‘relating to a matter that constitutes, or may constitute, a contravention of this Act’.

55    The Court in SA Brewing continued at 371:

That approach was not addressed in the joint judgment of Bowen CJ and Neaves J. Their Honours simply reaffirmed the condition and pointed out that the identification of the matter provides for the recipient of the notice a point of reference by which to judge whether it validly requires the specified information to be furnished or the specified documents to be produced. Agreeing, as we do with their Honours' view of the utility and desirability of the requirement, it finds its roots and ultimate justification in a proper construction of s 155(1) as enunciated by Davies J. And on that basis it emerges as an aspect of the statutory power able to be discerned in the words of the statute.

56    Significantly, in a passage extracted by the primary judge at [79] and above at [28], the Court in SA Brewing at 371 concluded that:

Neither the constructional nor policy supports for the entitlement disclosure condition requires that a notice plead a contravention or suspected contravention. It is fundamental that the proper progress of legitimate investigation be not disrupted by what may amount to demurrer or strike out motions on the terms of the notice. Where, however, the “matter” referred to in the notice is incapable, after allowing for undiscovered facts, of amounting to a contravention, then the issue of the notice is not a valid exercise of power.

57    Finally, the Court concluded at 372:

The entitlement disclosure condition is an emanation of the statutory language empowering the Chairman only to serve a notice requiring the furnishing of such information, the production of such documents or the giving of such evidence as relates to a matter which constitutes or may constitute a contravention.

58    In Commissioner of Taxation v Pilnara Pty Ltd [1999] FCA 1805; 96 FCR 82 (Pilnara), this Court considered s 264A of the then ITAA at [34]-[40]:

[34]    The task at hand is, of course, to construe s 264A. The section does not contain an express requirement that any notice issued under it must contain an entitlement disclosure condition. The question is whether such a condition should be implied.

[35]     In our view, and with due respect to the primary judge, no such condition should be implied into s 264A.

[36]     We think that there are relevant distinctions between s 264A of the Income Tax Assessment Act and s 155 of the Trade Practices Act.

[37]     First, s 155 is concerned with a “matter” involving a contravention of the Trade Practices Act. There are many contraventions which might arise under that Act. That fact necessitates the implication of an entitlement disclosure condition in any notice issued under s 155. But s 264A of the Income Tax Assessment Act is only concerned with information and documents “relevant to the assessment of a taxpayer”.

[38]     Secondly, the basis upon which the condition was implied in Pyneboard is absent in the present context. The implication in Pyneboard was expressed as being based on the circumstances that refusal or failure to comply with a notice issued under s 155 was punishable by imprisonment or fine (see p 374).

[39]     We acknowledge that the evidentiary exclusion in s 264A(lO) may, on occasion, be a very serious matter. Accordingly we would not distinguish the s 155 cases solely on this basis.

[40]     There is, perhaps (as Mr A Robertson SC, senior counsel for the appellant pointed out), some irony in the fact that the Full Court in Pyneboard relied upon the decision of the High Court of Australia in Commissioner of Taxation (Cth) v Australia & New Zealand Banking Group Ltd, a case which related to notices issued under s 264 of the Income Tax Assessment Act. It is clear from the statements of Gibbs ACJ at 525 and 528 and Mason J at 537 and 535 in that case, that it is sufficient for the purposes of a notice issued under s 264 that the notice refer to a person’s income or assessment to show that the notice is within the power conferred by that section. See also Jacobs J at 541-542 and Murphy J at 547. We see no relevant distinction between the provisions of s 264 and s 264A on the question of the entitlement disclosure condition. In our view, the approach taken in Australia & New Zealand Banking Group Ltd should be applied to the present matter. Accordingly we hold that it is sufficient, for the purposes of s 264A, simply to identify the taxation assessment of a party served with a notice under that section.

59    Mosaic also referred to authorities as examples of implying entitlement conditions, in relation to s 712 of the FW Act, s 86(1A)(c) of the Workplace Relations Act 1996 (Cth) (repealed), s 193 of the Protection of the Environment Operations Act 1997 (NSW) and s 9 of the Occupational Health and Safety Act 2004 (Vic): see, for example, Construction, Forestry, Mining and Energy Union v Alfred [2016] FCA 591; 242 FCR 35; Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Inspector Lam [2018] FCA 1379; Fair Work Ombudsman v United Petroleum Pty Ltd [2020] FCA 590; 85 Degrees Coffee Australia Pty Ltd v Rodwell [2020] FCA 1190; 299 IR 280; Thorson v Pine [2004] FCA 805; Thorson v Pine [2004] FCA 1316; 139 FCR 527.

60    It is also plain that there are authorities which have not found such a condition, in other statutory contexts: see, for example, Pilnara, examining s 264A of the then ITAA; James v Chief Commissioner of State Revenue (No 2) [2011] NSWSC 654; 81 NSWLR 267, examining s 72 of the Taxation Administration Act 1996 (NSW); AB Pty Ltd v Australian Crime Commission [2009] FCA 119; 175 FCR 296, examining s 29 of the Australian Crime Commission Act 2002 (Cth); and West Tamar Council v Leonard [2012] TASSC 68; 21 Tas R 412, examining s 47(1)(c) of the Integrity Commission Act 2009 (Tas).

61    Pausing there. The authorities make it clear that whether such a condition is implied into a notice provision, and if so, the necessary content of the notice, turns on the particular statutory scheme under consideration. It is plain that the issue at hand is not resolved by simply transposing the reasoning from one statutory scheme into another. There is, as the ACMA correctly submitted, no universal rule as to implying a condition into a notice provision. Rather, attention must be directed to the particular statutory scheme in issue.

The statutory scheme

62    The starting point for the ascertainment of the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]-[71], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47]; and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408. The plurality in SZTAL at [14] observed:

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.

63    A number of observations may be made about the present statutory scheme.

64    First, the functions of the ACMA, as identified in Div 2 of the ACMA Act, are very broad. They are not confined to the investigation of possible contraventions of various acts but, as is readily apparent from the terms of s 8, cover a vast range of functions, many of which are of an entirely different nature.

65    Second, s 522 of the Telecommunications Act, which entitles the ACMA to obtain information and documents from “other persons”, is also drafted in very broad terms. The only express limitation on the application of power in this section is that contained in subsection (1), which relevantly provides that the section will apply if the ACMA has reason to believe that the person has information or a document that is relevant to: (i) the performance of any of the ACMA’s telecommunications functions; or (ii) the exercise of any of the ACMA’s telecommunications powers. The use of the power in s 522 is therefore directed to the performance of the ACMA’s functions, or the exercise of its powers.

66    Third, s 522 was part of the Telecommunications Act when it was enacted in 1997, although there have been subsequent amendments to the language of subsections (4) and (5). The Explanatory Memorandum to the Telecommunications Bill 1996 (Cth) explained that Pt 27, where s 522 is found, was based on Pt 4.9 of the Employment Services Act 1994 (Cth). The Explanatory Memorandum described Pt 27, which contains s 522, as follows:

Part 27 will enable the ACA to obtain information and documents from carriers, service providers and others whom the ACA has reason to believe have relevant material or who are capable of giving relevant evidence in connection with the performance or exercise of any of the ACA’s telecommunications functions and powers.

67    Although Mosaic submitted that s 522 was enacted in the context of what “was settled and mature jurisprudence about the limitations on statutory notices issued by federal regulators”, the breadth of the assertion about the jurisprudence fails to acknowledge that whether any condition is implied is statute-specific. On the other hand, as the ACMA submitted, although the Courts had decided a number of the cases in respect to s 155 of the TPA (which addressed the entitlement disclosure condition) prior to the enactment of s 522, in enacting the provision Parliament chose not to use the language of, or language analogous to that of, s 155.

68    Fourth, Parliament has made both a contravention of a requirement in a s 522 notice, and giving false or misleading information in response to a notice, criminal offences: s 522(4) and s 525. We observe that this is to be contrasted to s 264 of the then ITAA, which did not proscribe a criminal offence.

69    Fifth, s 522(5) expressly states that the notice must set out the effect of s 522(4) and s 525. That is, the notice must set out that the recipient commits a criminal offence if they contravene a requirement of the notice. This is the only provision which identifies what must be contained on the face of a notice issued pursuant to s 522. Although, as the ACMA submitted, other sections of the Telecommunications Act contain more detailed specifications of what is to be included in notices issued pursuant to those other sections, for example, s 315C(6) and (7), and s 521(4) and (5), these additional requirements also only relate to the consequences for breach of the relevant notice to which those provisions relate.

70    The extent of the specification in s 522 as to the content of a notice can, for example, be contrasted to that in s 61D(a) of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth), considered in Ehrke v Australian Building and Construction Commissioner [2020] FCA 267 (Ehrke), an authority relied on by the ACMA. Section 61D requires that an examination notice be in the prescribed form, if prescribed by the regulations. Regulation 7 of the Building and Construction Industry (Improving Productivity) Regulations 2017 (Cth) then provides that Form 3 sets out the matters required to be stated in such an examination notice: see Ehrke at [7], [25], and [26]. In Ehrke at [37], the Court concluded that Form 3 “expressly and comprehensively sets out the matters required to be included”. That description is not apt in relation to s 522(4) of the Telecommunications Act. That s 522(4) is not exhaustive of the requirements in a notice under that provision is also plain when it is recognised, as the ACMA did, that any notice must state with some clarity the documents and information sought.

71    Sixth, although much attention was focused by Mosaic on ss 508 and 510(a) and (ab) as establishing the existence and content of the implied entitlement disclosure condition, these provisions appear in Pt 26 of the Telecommunications Act. Section 522 appears in Pt 27, and by its plain terms, has much broader application. In that context, in construing s 522 to determine if the condition is implied, focus must be directed to that provision, and not Pt 26. The existence of the condition must be considered in the context of the breadth of the functions and powers to which s 522 applies. If a condition is implied it must apply to all the functions and powers in which a notice under s 522(1)(a) and (b) can be issued. Mosaic did not address its submission with regard to that context. Indeed, Mosaic’s submission as to the existence of the condition is based on an analogy with s 155, and the reference to the word “matter” in Pt 26. It appeared on Mosaic’s submission that the existence of the condition in s 522 is ambulatory, depending on the function or power being exercised.

72    Nonetheless, given the extent of Mosaic’s reliance on s 508 and s 510, it is appropriate to refer to Pt 26 of the Telecommunications Act in more detail. It provides that the ACMA may investigate certain “matters” relating to telecommunications: s 507. Those “matters” are listed in s 508, and include, inter alia, contraventions of the Telecommunications Act and contraventions of the Spam Act: s 508(a) and (ab). Again, the matters in s 507 are broad, and not confined to contraventions. Similarly, the breadth of s 510 is readily apparent, as it empowers the ACMA to investigate a matter of a kind referred to in s 508 if, in any case, the ACMA thinks that it is desirable to investigate the matter: s 510(1)(c); and provides that the ACMA must investigate a matter of the kind referred to in s 508, or any other matter concerning carriage services or the telecommunications industry, if the Minister requests the ACMA to investigate: s 510(3). This part of the Telecommunications Act is, given the breadth of the functions and powers in the ACMA Act, only one aspect of the ACMA’s functions and powers.

73    The term “matter” in Pt 26 is used in the sense of a “subject matter” or “topic”. The term appears in s 508, which identifies in a list the “matters to which the part applies”, and includes, inter alia, the contravention of various acts, in addition to more general matters (for example, relating to the connection of, refusal or failure to connect customer equipment, and a matter relating to the performance of the ACMA’s telecommunications functions, or the exercise of its powers). This use of the term “matter” here is to be contrasted to its use in s 155 of the TPA, which is relied on by Mosaic. Section 155 expressly limits the power to issue a notice to “a matter that constitutes, or may constitute, a contravention” of the TPA. In that context, in WA Pines v Bannerman at 564, Brennan J observed that “[a]s a matter of grammar, the clause ‘that constitutes, or may constitute, a contravention’ qualifies ‘matter’”. As the ACMA correctly submitted, it is the existence of those qualifying words which led the word “matter” in s 155 to be construed as “a body of facts which ‘constitute’ or ‘may constitute’ a contravention”: and see WA Pines v Bannerman at 568. Part 26 employs the word “matter” in a different sense. Section 155 is to be contrasted with s 522, which is directed to the performance of any of the ACMA’s telecommunications functions or the exercise of any of its telecommunications powers. We return to this distinction below.

Notice of contention

74    It is appropriate to first consider the notice of contention since it would, if successful, be a complete answer to Mosaic’s appeal. The issue for consideration is whether an entitlement disclosure condition is implied in s 522.

75    It is important to recall that Mosaic’s submission on this issue is based primarily on an analogy it seeks to draw between s 522 of the Telecommunications Act and s 155 of the TPA, which is considered in the various authorities. Necessary for this analogy is Mosaic’s reliance on the term “matter” in ss 508 and 510(a) and (ab). It is the use of that term which, on Mosaic’s submission, founds the nexus between s 522 and s 155. Mosaic’s submission implies, in practical terms, that the Notice is required to identify each matter the subject of a complaint and to state in respect to each the reason that exists for the ACMA to suspect that Mosaic had contravened the Spam Act within the limits of s 510(1)(ab). That is, what is implied in s 522 is an entitlement disclosure condition which requires that degree of detailed content. This Notice, Mosaic submitted, does not comply with the requisite detail, and it therefore is not valid. The Notice does not enable Mosaic to assess whether the information or documents sought are such information or such documents as referred to in ss 522(2)(a) and 522(2)(b).

76    Mosaic’s submission conflates two issues: the existence of an implied entitlement disclosure condition in the provision, and the required content of the condition. Mosaic proceeds on the basis that the entitlement disclosure condition inherently requires the content described in the preceding paragraph.

77    The primary judge concluded that there is an implied entitlement disclosure condition in s 522 of the Telecommunications Act, and further, that any notice issued pursuant to that provision must specify with reasonable clarity that the information required to be given and/or the documents required to be produced relate to the performance of one or more of the ACMA’s telecommunications functions or the exercise of one of more of those powers.

78    In our view, there is such a condition implied in s 522. That conclusion is based on a consideration of the text of s 522 in its context, and given its purpose. The condition is implied in s 522 not as a result of the use of the term “matter” in s 510 or in Pt 26. The condition is implied because: (1) s 522(1) imposes a limit on the power to issue the notice; (2) the breadth of the range of functions and powers in relation to which a s 522 notice can be issued is such as to necessitate the identification of the relevant function or power on the face of the notice; and (3) the potential consequences that flow from the failure of the recipient to comply with the notice. Those features combine to warrant disclosure of the entitlement to issue a notice. Accordingly, the recipient should be informed of such matters. Absent such a condition, a recipient of a notice could not properly assess the notice issued to determine whether the ACMA has the power to require the production of the documents or the information sought.

79    Although s 155 is in different terms to s 522, the rationale underpinning implying an entitlement condition in s 155 is instructive. Its roots are in the construction of the provision, which provides for criminal breaches of the obligation created by the issue of the notice, and the fact that s 155 does not empower the relevant person, in that instance, to require the recipient to produce any information, with the power being limited: SA Brewing at 370-371 citing Bannerman v Mildura Fruit at 588-590, recited above at [53]-[56].

80    Those features similarly exist in s 522. Section 522 is confined in its application (albeit in a different manner to the way the power in s 155 is confined), given it is directed to the performance of any of the ACMA’s telecommunications functions or the exercise of any of its telecommunications powers. That the nature of the limitation on the power to issue a notice under s 522 is different to that in s 155, as are the terms of the provisions, does not affect the underlying reason for implying an entitlement disclosure condition. Coupled with that limitation, the provision creates an offence for non-compliance with the notice.

81    Section 522 is unlike s 264 of the then ITAA, where providing a description of the documents required to be produced by the taxpayer in the notice is sufficient to satisfy the provision. That provision is limited only by a requirement to produce documents which relate to the income or assessment of the particular person.

82    The ACMA’s submissions as to why an entitlement condition is not to be implied in s 522 cannot be accepted.

83    As explained above, the ACMA advanced three primary submissions. First, the ACMA submitted that s 522 is not confined to specified matters. So much may be accepted in so far as the submission is referring to the text of that provision confining its use to “matters”. However, it does not follow that the provision is not confined, as it plainly is, in the manner described above at [65]. Contrary to the ACMA’s submission, the breadth of the functions and powers it has does not tell against the implication of an entitlement disclosure condition in s 522. While it is broad, the power to issue a s 522 notice is not unlimited, as it is subject to the satisfaction of the condition in s 522(1). Further, the breadth of the functions and powers which limits the use of power in s 522 rather provides a basis for a condition to be implied in the provision, for otherwise, as explained above, the recipient will not be able to assess whether there is any relationship between the information and documents sought, and the functions and powers being exercised by the ACMA. Second, the ACMA submitted that s 522(5) expressly addresses what is required to be contained on the face of the notice. Again, so much may be accepted as explained above at [69], as far as it goes. Section 522(5) only addresses a limited topic, and it cannot be suggested that it is exhaustive of what is required in the notice. Rather, the requirement specified relates to providing information directed to the consequences of non-compliance with the notice. Third, the ACMA submitted that there is nothing in the extrinsic material which suggests the condition was contemplated. That is correct, although it is of little assistance. The ACMA contended on this submission that implying an entitlement disclosure condition does not promote the purpose of s 522 and called in aid observations in Australian Securities Commission v Lucas (1992)36 FCR 165 at 174, which were as follows:

… [a notice] would be rendered of limited utility if [it] has to meet a plethora of formal requirements capable of being identified only by a complex process of implication: if that were the case, the issue of a notice would provide a fertile occasion for opportunities for litigation and thus for delay to the investigation.

The observation does not assist with the issue of statutory construction of s 522. That the ACMA can provide information, as it plainly considered it necessary to do, for the purposes of issuing the notice the subject of these proceedings, is readily apparent. That Mosaic, or any other recipient of a notice challenges its validity, is not a basis on which to exclude an otherwise implied condition.

84    The ACMA has not established any error in the primary judge’s conclusion as to the existence of the condition. The text of s 522, read in context and given its purpose implies an entitlement disclosure condition with which a notice issued under that section must comply.

85    That is not to accept Mosaic’s basis for the existence of the implied condition. To the contrary, Mosaic erroneously approached the issue of construction from a consideration of, and focus on, s 510(1)(ab) and s 508, not s 522, which is the provision to be construed. Mosaic’s approach is apparent from its acceptance that the existence of the condition is implied because of those provisions in Pt 26 and therefore, might not be implied in s 522 in respect to its use in the performance or exercise by the ACMA of its other functions and powers. Moreover, Mosaic’s submissions embed in the existence of the condition requirements as to its content which are not supported by the provision.

Ground of appeal: insufficient content in the Notice

86    The grounds of appeal, variously phrased, are directed to what is necessary to satisfy the implied entitlement disclosure condition and whether the content of this Notice was sufficient to satisfy it, with the criticisms of this Notice set out in ground 2 (recited above at [4]).

87    As to the general proposition as to what is necessary, as explained above, Mosaic’s submission is based on the premise that the condition required the Notice to identify each matter the subject of a complaint and to state, in respect to each matter, the reason(s) that existed for the ACMA to suspect that Mosaic had contravened the Spam Act within the limits of s 510(1)(ab). As this Notice failed to provide such detail, Mosaic contended it is invalid. This is Mosaic’s primary submission and underpinned its grounds of appeal.

88    Mosaic further submitted that as a consequence, this Notice was insufficient to satisfy the entitlement disclosure condition because the requisite detail was not provided. The primary complaint as to the terms in this Notice is the use of the phrase “associated conduct”, which Mosaic contends does not contain sufficient information to enable it to assess whether the documents are validly sought.

Failure to identify each matter the subject of a complaint

89    This issue involves a consideration of the nature of the content of the Notice required to satisfy the condition. The premise of Mosaic’s submission as to the detail necessary to be included in the Notice to satisfy the disclosure entitlement condition is flawed.

90    It is necessary to return to the ACMA’s power to issue a notice. The power arises if the ACMA has reason to believe that the information required to be given and/or the documents required to be produced relate to the performance of any of the ACMA’s telecommunications functions or the exercise of any of those powers. The information and documents sought by a notice of this kind are to be in relation to the ACMA’s function and power to investigation in s 510. The investigative function and power relied on in this case allows the ACMA to investigate if it has reason to suspect that a person may have contravened the Spam Act or the regulations under that Act: s 510(1)(ab).

91    Mosaic submitted that even if it accepted that the object of the investigation apparent from the Notice was Mosaic’s involvement in sending commercial electronic messages without the consent of the recipient and without a functional unsubscribe facility, the Notice nevertheless fails to disclose any facts showing the existence of a reason for the ACMA to suspect from that conduct a contravention of the Spam Act. Mosaic based this submission primarily on analysis from those cases which addressed the existence of the condition in the context of s 155 of the TPA.

92    Indeed, it is evident that Mosaic’s submission is directed, in practical terms, to an entitlement by it to see the basis for any suspicion held by the ACMA. That entitlement is reflected in its submission recited above at [34], which in effect states that Mosaic is entitled to assess the reasonableness of the ACMA’s suspicion in respect to each individual suspected contravention. That assessment would enable Mosaic to consider whether the ACMA has, what Mosaic considers, a proper basis to investigate it. Such a position is apparent by Mosaic accepting during oral submissions that at least part of its submission was that it believed factually there was no basis for the ACMA to investigate. However, Mosaic’s subjective belief does not address the issue at hand, or assist in determining whether, objectively, the Notice discloses that the ACMA is entitled to require the recipient to furnish the information or produce the documents described. That is, whether there is reason to believe that the recipient of a notice has information or a document relevant to the performance of any of the ACMA’s telecommunications functions, or the exercise of any of those powers.

93    Mosaic’s submission, which effectively asserts some entitlement by the recipient of a notice to assess the reasonableness of the ACMA’s suspicion, cannot be accepted. A notice is not required to provide a sufficient degree of detail such as to enable the recipient to assess whether, in its view, the relevant function or power ought to be exercised in respect to individual contraventions.

94    Mosaic’s submission places a meaning on the word “matter” in ss 508 and 510(a) and (ab) such that it contends that for the ACMA to issue a notice pursuant to s 522 in relation to an investigation under that provision, the notice must specify a reason to suspect in respect to each individual message and each individual contravention: see for example the submission recited at [34] above. Neither s 522, nor the authorities relied on by Mosaic (in particular those relating to s 155) of the TPA), support such an approach. Indeed, as noted above, SA Brewing at 371, recited at [55] above, expressly rejected that the entitlement disclosure condition requires that a notice plead a contravention or suspected contravention: and see Seven Network at [49], and in a different statutory scheme, Aurora at [79]-[92].

95    In any event, Mosaic’s reliance on an analogy to s 155 of the TPA is misplaced. As explained above, the provisions are different, such that, inter alia, s 155 limited the power to issue a notice to “a matter that constitutes, or may constitute, a contravention” of the TPA. For the reasons explained above at [73], the notice in s 155, therefore, needed sufficient clarity to enable the recipient to see that the documents sought related to such a “matter”. This is to be contrasted to s 522 which is not so limited, where the power is enlivened where there is a reason to believe the information or document is relevant to the performance of any of the ACMA’s telecommunications functions or the exercise of any of its telecommunications powers. Mosaic does not grapple with that difference. Mosaic places a significance on the term “matter” in s 508 and s 510 which the term does not have in this legislative scheme, nor even in relation to s 155 on which this submission is based (by analogy).

96    Mosaic’s submission also fails to recognise the nature of the ACMA’s investigative function. As to this investigative function, the ACMA correctly submitted, using language from s 155 authorities, that it is “engaged in a function of investigation, not in a task of proving an allegation”. The power conferred by s 522 “is in aid of that function and is a power which authorizes inquiries both wide in scope and indefinite in subject matter”: citing Melbourne Home of Ford Pty Ltd v Trade Practices Commission (No 3) (1980) 31 ALR 519 at 529. And see the passage in Pyneboard at 570-572, recited above at [52].

97    To be valid, the Notice does not require the degree of detail contended for by Mosaic.

98    Mosaic’s submission that the primary judge did not address its submission on the level of detail required in the Notice is plainly incorrect. At [79], which is recited above at [28], her Honour correctly observed that to “require a notice to contain the level of detail Mosaic insisted upon would be tantamount to requiring all the facts necessary to constitute a contravention or possible contravention to be pleaded”, which her Honour recognised is contrary to authority.

99    Rather, what is required is a sufficient description to enable a relationship to be discerned between the information and documents sought, and the functions and powers being exercised by the ACMA. What will be sufficient will necessarily vary depending on the nature of the function or powers to which the information or documents is sought. As explained above, the notice must have sufficient clarity to show the recipient that the information or documents sought relate to the exercise of a function or power of the ACMA – here, an investigation pursuant to s 510(1)(ab).

100    Here, the nature of the investigation is readily apparent on the face of the Notice. The Notice enables the recipient to sensibly assess whether the ACMA has the power to require the provision of documents and information to it, and, further, whether the information and documents sought in the Notice relate to a function the ACMA is performing.

101    The primary judge was correct to conclude that the Notice makes clear what documents and information were required and why the ACMA was entitled to require their production. The Notice made clear that the information and documents related to matters of the kind described in s 508. It made clear that the information and documents sought by the Notice were relevant to the performance of the ACMA’s functions and the exercise of its investigative powers because the ACMA had reason to suspect that Mosaic had contravened the Spam Act.

“Associated conduct”

102    Mosaic also submitted that the primary judge did not address its submission that the Notice does not give any basis upon which to determine the content or limits of the “associated conduct”. Again, the primary judge did address the submission, and rejected it. The primary judge correctly summarised the effect of the Notice at [75]-[76], recited above at [27]. The meaning of “associated conduct” read in context is, as the primary judge concluded, “obvious”: at [72].

103    We note that Mosaic accepted during submissions the obvious proposition that a complaint in relation to one incident might create a reason to suspect in relation to a broader range of incidents. Once that is recognised, as it must be, the relevance to the investigation of the information and documents in categories 4 and 5 of the Notice is self-evident.

104    Mosaic also acknowledged that in respect to its submission about associated conduct, it “take[s] the point [as to the sufficiency of the Notice] because [it] doubt[s] that a notice could be issued disclosing such a reason to suspect”. That is, as a matter of fact, Mosaic doubted that such a suspicion existed. As explained above, whether or not, and to what extent, the recipient of a notice doubts the legitimacy of a suspicion regarding a contravention is not the test in determining the validity of the Notice. A determination of the validity of a notice involves an objective assessment of the content of the notice. The submission rather tells that Mosaic’s approach is not directed to the assessment of the Notice, but rather, its view as to the merit of any investigation.

105    Mosaic’s submission in respect to the phrase “associated conduct” cannot be accepted.

106    Finally, Mosaic’s submission as to the insufficiency of the content of the Notice, as the primary judge correctly recognised at [74], “smacks of the ‘precious’, ‘over-technical’ or ‘hypercritical’ approach to a statutory notice eschewed by the authorities”, as explained in Pyneboard and SA Brewing, recited above at [52] and [53]. This is also in a context where, as the primary judge observed at [79], Mosaic did not identify what further information the Notice was required to contain “except for an oblique reference to a ‘list…of the messages the sending of which was suspected as constituting those contraventions’”.

107    The primary judge described the contents of the notice at [74]-[76] of the primary judgment, recited above at [27]. It is plain that those matters identify the relationship between the information and documents sought, and the performance of the ACMA’s function of investigation.

108    Mosaic has not established any error in the findings of the primary judge as to the sufficiency of the Notice.

Conclusion

109    Mosaic has not established any error, and accordingly, the appeal must be dismissed, with costs.

Associate:

Dated:    13 May 2022