Federal Court of Australia

Indara Inbuilding Solutions Pty Ltd v Australian Communications and Media Authority [2024] FCAFC 117

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the respondent to file a notice of contention in the form annexed to its written submissions.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs as 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 issues in this appeal concern the assessment of Telecommunications Industry Levy (TIL) under the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (the TCPSS Act). The appellant (Indara) contends that the respondent (the ACMA) erred in assessing its revenue, for the purpose of calculating TIL, by including certain revenue earned by a related party, Axicom Pty Ltd (APL).

2    In order to frame the issues, it is useful to begin by noting the relevant aspects of the statutory scheme.

Legislation

3    Part 2 of the TCPSS Act establishes a “universal service regime” which has the main object of ensuring that “all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis” to standard telephone services and payphones: s 8 of the TCPSS Act. Part 2 also provides for the universal service regime to be phased out and replaced by a regime of contracts and grants for the provision of what are termed “public interest telecommunications services”. Provision of public interest telecommunications services is to be funded by a levy, the TIL, which is formally imposed by the Telecommunications (Industry Levy) Act 2012 (Cth) (the TIL Act) and is administered by the ACMA pursuant to the provisions of Division 6 of Part 2 of the TCPSS Act.

4    Section 41 of the TCPSS Act establishes the “overall levy target amount” for each “eligible levy period” as the total amount paid out pursuant to contracts and by way of grants in that period (plus administrative costs), less the amounts appropriated by Appropriation Acts for those purposes. (This does not include the “first eligible revenue period”, and the summary that follows will omit references to that period.)

5    Each “participating person” for an eligible revenue period is required by s 43 to give to the ACMA, within a time limit fixed by a determination, a written return of its “eligible revenue” for that period.

(a)    A “participating person” for an eligible revenue period is a person who was a “carrier” at any time during that period, or (if the Minister makes a determination to this effect) a “carriage service provider” (s 44). “Carrier” is not defined by the TCPSS Act and therefore, under s 5(1), has the meaning that it has in the Telecommunications Act 1997 (Cth) (the Telecommunications Act). The latter Act defines a “carrier” as the holder of a carrier licence (s 5(1)). The Minister may, by determination in writing under s 44(2) of the TCPSS Act, exempt a class of persons from s 44.

(b)    Section 45 relevantly defines “eligible revenue” as follows.

45 Eligible revenue

General rule

(1)     For the purposes of this Act, eligible revenue of a person for an eligible revenue period … is the amount ascertained in accordance with a written determination made by the ACMA for the purposes of this subsection.

(2)     Subsection (1) has effect subject to subsection (3).

(3)     The eligible revenue of a participating person for an eligible revenue period …:

(a)     is taken to be zero if the person’s eligible revenue is less than the amount (the threshold amount) determined in writing by the Minister for the purposes of this subsection; or

(b)     in any other case—must be reduced by the threshold amount.

(4)     To avoid doubt, a determination under subsection (1) may, in providing how to work out the eligible revenue of a person, refer to revenue of other persons.

(5)     A determination under subsection (1) must not provide that:

(a)     an amount payable under a contract entered into under section 14; or

(b)     a grant under section 14;

is included in a person’s eligible revenue.

(6)     A determination under subsection (1) or (3) is a legislative instrument.

6    The ACMA is empowered to inquire into the correctness of a return (s 46) and is required to make a written assessment under s 47, which provides as follows.

47 ACMA to assess eligible revenue

(1)     The ACMA must make a written assessment of each participating person’s eligible revenue for an eligible revenue period ...

Note:     The assessment may be included in the same document as any other assessment the ACMA makes under this Division (see section 55).

(2)     The assessment must be based on:

(a)     the person’s eligible revenue return; and

(b)     the information and documents obtained by the ACMA because of its inquiries into the correctness of the return; and

(c)     any other information or documents that the ACMA has and that it thinks relevant to making the assessment.

(3)     Subsection (2) has effect subject to section 48.

(4)     The ACMA must give a copy of an assessment of a person’s eligible revenue to the person concerned.

(5)     The assessment is not a legislative instrument.

7    If a participating person fails to give the ACMA a return, it may make an assessment based on an estimate of that person’s eligible revenue (s 48(1)). If that course is proposed to be taken the ACMA must give the participating person at least 14 days’ written notice of the amount of eligible revenue proposed to be assessed and its intention to make the assessment based on the estimate (s 48(2)). The ACMA must not make an assessment based on an estimate if it receives a return in respect of the relevant period before doing so (s 48(4)).

8    Having assessed the eligible revenue of participating persons for an eligible revenue period, the ACMA is required by s 49(2) to work out a “levy contribution factor” for each participating person for the following eligible revenue period. The formula for doing so is set out in s 49(3), as follows.

(3)     For the purposes of this Act, the levy contribution factor of a person for an eligible levy period is the amount worked out using the following formula:

where:

individual eligible revenue means the assessed eligible revenue of the person for the eligible revenue period ending immediately before the eligible levy period.

total eligible revenue means the total assessed eligible revenue, for the eligible revenue period ending immediately before the eligible levy period, of all the participating persons for the eligible revenue period.

9    The levy amount for each participating person is fixed by s 50, as follows.

50 Levy amount of a participating person

(1)     If a person is a participating person for an eligible revenue period (the relevant eligible revenue period), then, for the purposes of this Act, the levy amount of the person for the eligible levy period starting immediately after the relevant eligible revenue period is the amount worked out using the formula:

where:

levy contribution factor means the person’s levy contribution factor for the eligible levy period worked out under section 49.

overall levy target amount means the overall levy target amount for the eligible levy period worked out under section 41.

Note:     The Telecommunications (Industry Levy) Act 2012 imposes levy on the levy amount.

(2)     The Minister may, by legislative instrument, modify the formula in subsection (1).

10    Pausing here, it will be observed that the aim of the scheme is to divide the costs of providing public interest telecommunication services (to the extent that it is not funded by appropriations) among “participating persons” in proportion to their “eligible revenue”.

11    The ACMA is required to make (under s 51) and publish (under s 52) a single written assessment for each eligible levy period. The contents of the assessment are provided for in s 51(2):

(2)     For each participating person for the eligible revenue period ending immediately before the eligible levy period, the assessment must set out:

(a)     the person’s levy amount under section 50 for the eligible levy period; and

(b)     the levy payable by the person on that amount.

Note:     Section 56 sets out when the levy is payable.

12    Levy becomes due and payable on the 28th day after a participating person is given a copy of the assessment or such later day as is determined in writing (s 56). Levy is a debt due to, and is recoverable by, the ACMA on behalf of the Commonwealth (s 57).

13    Sections 58 to 60 deal, in terms broadly consistent with taxation laws, with the status of an assessment in the court. They are as follows.

58 Validity of assessment

The validity of an assessment under this Division is not affected by a contravention of this Division.

59 Evidence of assessment

Scope

(1)     This section applies if a document that purports to be a copy of an assessment under section 51 is produced in a proceeding.

Evidence

(2)     Except so far as the contrary is established, it must be presumed:

(a)     that the document is a copy of the assessment; and

(b)     that the ACMA has duly made the assessment; and

(c)     that the amounts and other particulars set out in the assessment are correct.

60 Onus of establishing incorrectness of assessment

In any proceeding, the onus of establishing that an assessment under section 51 is incorrect is on the party making that assertion.

14    The determination in force at relevant times for the purposes of s 45(1) of the TCPSS Act was the Telecommunications (Eligible Revenue) Determination 2015 (Cth) (the TER Determination), which is still in force. It sets out a method of calculation of eligible revenue based on a participating person’s “net telecommunications sales revenue” (s 37). The steps in the calculation are as follows.

15    First, the “initial sales revenue” of a participating person is to be identified under s 15. (It should be noted that the concept of initial sales revenue was also used in the determination in force at relevant times under s 44(2) of the TCPSS Act (the Telecommunications (Participating Persons) Determination 2015 (Cth)), which provided that a person whose initial sales revenue was less than $25 million was not a “participating person” for the purposes of the Act.)

16    Secondly, certain amounts are to be added to the initial sales revenue under ss 17 and 20 of the TER Determination, and subtracted from it under ss 16, 18 and 19, to arrive at the “gross telecommunications sales revenue” (s 21).

17    The provision of importance in the present case is s 16 of the TER Determination, which is as follows.

16 Non-telecommunications sales revenue

(1)     Deduct from the initial sales revenue any amount that:

(a)     is non-telecommunications sales revenue of the participating person or a consolidated related party of the participating person; and

(b)     the participating person wants to deduct.

Note:     For the meaning of non-telecommunications sales revenue, see section 9.

(2)     Also deduct the result of multiplying any amount that:

(a)     is non-telecommunications sales revenue of a declared related party of the participating person; and

(b)     the participating person wants to deduct;

by the declared related party factor for that party.

(3)     If the participating person wants to deduct an amount (a deductible amount) from the participating person’s initial sales revenue under this section, the deductible amount must not be more than the total amount (if any) received by the participating person, or a consolidated related party or declared related party of the participating person, in connection with the activity that created the deductible amount.

Example:     If a participating person supplies gas services at a price that includes a subsidy provided by the participating person, the amount received by the participating person for the supply is a deductible amount.

18    “Non-telecommunications sales revenue” is defined by s 9(1) and (2) of the TER Determination as follows.

9 Meaning of non-telecommunications sales revenue

(1)     An amount of revenue is non-telecommunications sales revenue if the revenue is earned from an activity outside the telecommunications industry.

Note:     Examples of non-telecommunications sales revenue include:

(a)     revenue from providing electricity, gas or water connections; and

   (b)     revenue from selling electricity, gas or water.

(2)     The ACMA may, in writing, declare that the following is non-telecommunications sales revenue:

(a)     a specified amount;

(b)     the value of a benefit or service.

19    For these purposes, the “telecommunications industry” is defined in s 5 of the TER Determination as having the meaning given by the Telecommunications Act. Section 7 of the Telecommunications Act defines the expression as follows.

telecommunications industry includes an industry that involves:

(a)     carrying on business as a carrier; or

(b)     carrying on business as a carriage service provider; or

(c)     supplying goods or services for use in connection with the supply of a listed carriage service; or

(d)     supplying a content service using a listed carriage service; or

(e)     manufacturing or importing customer equipment or customer cabling; or

(f)     installing, maintaining, operating or providing access to:

(i)     a telecommunications network; or

(ii)     a facility;

used to supply a listed carriage service.

20    Thirdly, further amounts are to be deducted from the gross telecommunications revenue to arrive at the “net telecommunications sales revenue” (s 34 of the TER Determination). Only one of these needs to be noted for present purposes. Section 33 provides:

33 Declarations about deductible revenue

The ACMA may declare, in writing, that a specified amount of gross telecommunications sales revenue of one or more specified participating persons (but not all participating persons) may be deducted.

21    Fourthly, under s 37, the participating person’s eligible revenue is to be taken to be zero if its net telecommunications sales revenue is negative. Otherwise, the net telecommunications revenue is the eligible revenue.

22    At each step in the process described above, the calculation is required to include revenue of the participating person, each “consolidated related party” of that person, and each “declared related party”. A “consolidated related party” is defined in s 5 as a person whose revenue is included in the annual consolidated financial statements of the participating person’s ultimate Australian parent entity. A “declared related party” of a participating person is defined in s 6(1) as follows.

(1)     An entity is a declared related party of a participating person for the whole of an eligible revenue period if the entity:

(a)     is not:

(i)     a participating person; or

(ii)     a consolidated related party of a participating person; and

(b)     is owned, at any time during the eligible revenue period, by a body that owns the participating person at any time during the eligible revenue period; and

(c)     has telecommunications sales revenue in Australia at any time during the eligible revenue period.

the present case

23    At the time of the hearing before the primary judge, Indara was known as Axicom Inbuilding Solutions Pty Ltd. At the time of the events relevant to the proceedings, it was known as Axicom Land Pty Ltd. Indara and APL were part of a corporate group (the Axicom Group) whose ultimate Australian parent company was Axicom HoldCo Pty Ltd (Axicom HoldCo). (References to Axicom Land in the quotations from the evidence set out below are thus references to the present appellant, Indara.)

24    Indara applied for a carrier licence under the Telecommunications Act on 6 May 2019. In its application it explained that the core business of the Axicom Group was the provision of “essential telecommunications infrastructure” to carriers and other users. It described the group as the largest independent owner of shared wireless communications infrastructure in Australia, with around 20 percent of the wireless shareable tower infrastructure market. Indara sought to obtain a carrier licence for the purposes of a new business venture of the Axicom Group which, at times relevant to these proceedings, had generated no revenue.

25    Indara was granted a carrier licence on 8 July 2019. It surrendered that licence on 30 June 2020.

26    In September 2020 an exchange of emails occurred between staff of the ACMA and the Axicom Group. The ACMA observed that financial statements of Axicom HoldCo showed income of $231.7 million in calendar year 2019 and that it was seeking information in relation to the 2019-2020 eligible revenue period. It emerged that $200.6 million of that revenue was from leasing access to wireless communication sites and $30.1 million came from management of the construction or installation of infrastructure. The ACMA expressed the view on 28 September 2020 that the amount of $200.6 million appeared not to be deductible and might be “eligible revenue”. “Axiom [sic]” (presumably a reference to the entity that is now Indara) was therefore considered a “participating person” and needed to submit a return by 31 October 2020.

27    On 28 October 2020 Indara provided to the ACMA a spreadsheet detailing its revenue. On 30 October 2020 it submitted a statutory declaration signed by its General Counsel and Company Secretary, Mr Stefan Kennedy, declaring that its eligible revenue for the 2019-2020 eligible revenue period was less than $25 million. This was followed up by an email on 2 November 2020 stating that Indara had submitted a return on 30 October 2020 with an eligible revenue of zero. This position was explained on the footing that:

(a)    Indara itself had earned no revenue of any kind since obtaining a carrier licence in July 2019; and

(b)    the related entity APL, which earned the $200.6 million referred to above (referred to below as the APL infrastructure revenue), did so as the owner of passive infrastructure which it leased out and did not earn any “telecommunications sales revenue”.

28    The email of 2 November 2020 also said that, if the ACMA did not agree with Indara’s assessment of the position, Indara:

would, of course, seek a declaration from the ACMA that the proportion of Axicom Land’s gross telecommunications revenue which is generated from Axicom’s existing passive facilities be deducted from the calculation of its eligible revenue for the purposes of the TIL pursuant to s33 of the [TER] Determination.

29    Further correspondence and discussions, which do not need to be rehearsed here, followed between the ACMA and Indara. Their positions did not change in any material way.

30    By a letter dated 30 July 2021 (the July letter) Matthew Geysen, a delegate of the ACMA, gave notice in accordance with s 48(2) of the TCPSS Act, stating that the ACMA proposed to issue a written assessment under s 47 of the TCPSS Act based on his estimate of Indara’s eligible revenue, subject to s 48(4) of the TCPSS Act. Based on the information provided by Indara and publicly available information, the estimate was calculated as follows.

Initial sales revenue           $231,739,000

Less deductions

     Section 16                         $1,020,000

     Section 28                         $30,143,000

Estimated eligible revenue     $200,576,000

31    In view of the estimate of initial sales revenue being well above $25 million, the delegate was not satisfied that Indara was a non-participating person under s 44 of the TCPSS Act.

32    The ACMA wrote to Indara again on 13 August 2021, advising that it had not yet made a formal assessment of Indara’s eligible revenue for the 2019-2020 period and requesting any submissions from Indara by 16 August. Indara’s solicitors responded by a letter dated 16 August 2021, expressing disagreement with the ACMA’s estimate and requesting that the ACMA consider exercising its discretions under ss 9(2)(a), 15(5) and 33 of the TER Determination (the 16 August letter).

33    The ACMA considered Indara’s requests for the exercise of the discretions at a meeting on 23 September 2021. For the purpose of that consideration it received a submission prepared by its staff, also dated 23 September 2021. The minutes of the meeting record that the ACMA noted the correspondence from Indara and its representatives and “agreed not to make a declaration”. Mr Geysen wrote to Indara on 8 October 2021 (the October letter) advising that the ACMA had decided not to make a declaration under s 9(2) or s 33 of the TER Determination and considered that s 15(5) had no application in this case, and giving reasons for these decisions.

34    On 13 October 2021 Ms Helen Owens, General Manager of the Corporate and Research Division and a delegate of the ACMA, agreed to issue an instrument entitled Eligible Revenue Assessment 2019-20. This instrument purported to assess, for the purposes of s 47(1) of the TCPSS Act, the eligible revenue of each of the 55 entities that were considered to be participating persons for the purposes of that Act. We observe that s 47(1) contemplates an assessment being made for each such person, but no complaint is made about all of those assessments being contained in a single document. The amount assessed as the eligible revenue of Indara was $200,576,000.00. We will refer to the decision made on 13 October 2021 in so far as it assessed Indara’s eligible revenue as the Eligible Revenue Assessment. Indara was notified of the making of the Eligible Revenue Assessment on 14 October 2021.

35    On 9 November 2021, Mr Geysen signed the Telecommunications Industry Levy Assessment 2020-2021. That document set out, for each participating person, the levy amount assessed under s 50 of the TCPSS Act based on its eligible revenue amount. The levy amount assessed for Indara was $1,860,019.95. A copy of the document and an invoice for $1,860,019.85 were sent to Indara by email on 10 November 2021.

The procedings below

36    Indara sought judicial review of the Eligible Revenue Assessment. Review was sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act). The grounds of review were framed as follows.

1.     In making the Decision, the ACMA made an error of law in failing to characterise the sales revenue of Axicom for the 2019-2020 ERP as “non-telecommunications sales revenue” for the purpose of s 9 of the [TER] Determination and deduct such revenue from Axicom Land’s initial sales revenue pursuant to s 16 of the [TER] Determination.

Particulars

(i)     Non-telecommunications sales revenue is defined in s 9 of the [TER] Determination as an amount of revenue that is earned from an activity outside the telecommunications industry.

(ii)     The telecommunications industry is defined in s 7 of the Telecommunications Act 1997 (Cth).

(iii)     The ACMA concluded that Axicom derived revenue from “an activity in the telecommunications industry, namely operating or providing access to a facility used to supply a listed carriage service”.

(iv)     Facility is defined in s 7 of the Telecommunications Act 1997 (Cth).

(v)     In concluding that Axicom, by earning revenue from the provision of access to passive infrastructure, earned revenue from installing, maintaining, operating or providing access to a facility used to supply a listed carriage service the ACMA misconstrued that statutory definition.

2.     In declining to exercise its discretion in s 9(2) of the [TER] Determination to declare that a specified amount is non-telecommunications sales revenue the ACMA:

(a)     erred in law in construing the scope of the discretion conferred by s 9(2);

(b)     took into account irrelevant considerations; and

(c)     failed to take into account relevant considerations.

Particulars

(i)     The ACMA reasoned that it would be inappropriate to exercise the discretion in s 9(2) of the [TER] Determination where there is no need to clarify whether revenue is “non-telecommunications revenue”.

(ii)     The circumstances in which the ACMA may declare a specified amount non-telecommunications sales revenue are not limited by the [TER] Determination or the TCPPS Act and the ACMA erred by not construing s 9(2) as empowering it to make a declaration where it was appropriate to do so.

(iii)     In considering the exercise of the discretion in s 9(2) of the [TER] Determination, the ACMA erred by:

A.     taking into account, as a reason not to exercise the discretion, that the revenue of Axicom was telecommunications sales revenue; and

B.     taking into account, as a reason not to exercise the discretion, that Axicom Land was a carrier during the eligible revenue period.

(iv)     In considering the exercise of the discretion in s 9(2) of the [TER] Determination, the ACMA failed to take into account relevant considerations in that it:

A.     failed to take account of Axicom Land’s business and the purpose for which it obtained a carrier licence;

B.     failed to take account of the fact that Axicom was not a direct beneficiary of the universal telecommunications services, the fact that Axicom had a pre-existing history of earning revenue of the kind in question without it being treated as eligible revenue for the purposes of the [TER] Determination and the absence of any element of avoidance by Axicom Land; and

C.     failed to consider the objects of the [TER] Determination, including the reason for including in an assessment the revenue of consolidated related parties.

3.     In declining to exercise its discretion in s 33 of the [TER] Determination to declare that the telecommunications sales revenue of Axicom be deducted from Axicom Land’s initial sales revenue the ACMA:

(a)     erred in law in construing the scope of the discretion conferred by s 33;

(b)     took into account irrelevant considerations; and

(c)     failed to take into account relevant considerations.

Particulars

(i)     The circumstances in which the ACMA may declare a specified amount non-telecommunications sales revenue are not limited by the [TER] Determination or the TCPPS Act and the ACMA erred by not construing s 33 as empowering it to make a declaration where it was appropriate to do so.

(ii)     The ACMA erred in concluding that the policy intent of the [TER] Determination was such that it would be undermined by making a declaration to create the deduction requested by Axicom Land.

(iii)     In considering the exercise of the discretion in s 33 of the [TER] Determination, the ACMA erred by:

A.     taking into account, as a reason not to exercise the discretion, that the revenue of Axicom was to be classified as telecommunications sales revenue;

B.     taking into account, as a reason not to exercise the discretion, that equivalent revenue where earned by a carrier is included in the eligible revenue of such a person; and

C.     taking into account, as a reason not to exercise the discretion, that Axicom Land was a carrier during the eligible revenue period.

(iv)     In considering the exercise of its discretion in s 33 of the [TER] Determination, the ACMA:

A.     failed to consider whether there was a basis for excluding the revenue of a consolidated related party, namely Axicom’s revenue, in circumstances where there was no suggestion that Axicom Land was seeking to avoid payment of the TIL by shifting revenue between members of the same corporate group;

B.     failed to take account of Axicom Land’s business and the purpose for which it obtained a carrier licence;

C.     failed to take account of the difference between the business of Axicom Land and other holders of a carrier licence;

D.     failed to consider the objects of the [TER] Determination, including the reason for including in an assessment the revenue of consolidated related parties.

37    The primary judge rejected each of these grounds and dismissed the application. We will refer to her Honour’s reasoning, to the extent that it relates to issues that are the subject of the grounds of appeal, in our discussion of those grounds below.

the appeal

38    Indara’s notice of appeal advances 13 grounds of appeal. Ground 1 simply asserts that the primary judge erred in refusing to set aside the Eligible Revenue Assessment. The remaining grounds seek to justify that assertion of error. They are set out and discussed below.

39    There is no challenge in the appeal to the primary judge’s conclusions in relation to s 33 of the TER Determination (the subject of ground 3 below). The issues that remain in dispute concern whether the ACMA erred in finding that the APL infrastructure revenue was “non-telecommunications sales revenue” within s 9(1) of the TER Determination or in declining to make a declaration under s 9(2) in respect of that revenue.

Preliminary issues

40    Before turning to the grounds of appeal, two preliminary matters should be noted.

The decision under review

41    Indara’s originating application expressly sought review only of the Eligible Revenue Assessment. The notice of appeal takes the same approach. However, grounds 2 and 3 below, and grounds 8 to 13 in the appeal, attack antecedent decisions by the ACMA not to exercise discretions which, if exercised, would have changed the basis for that assessment.

42    The ACMA submitted before the primary judge that grounds 2 and 3 were in effect challenges to different decisions rather than grounds for the review of the decision identified as being under challenge. The primary judge dealt with this issue at [74]-[84] of her reasons. Referring to the concept of a “decision” in the ADJR Act, as elaborated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 (Mason CJ), her Honour concluded that the antecedent steps as to which Indara complained were “steps along the way” in a course of reasoning leading to the Eligible Revenue Assessment rather than separate decisions that Indara required to have set aside. Her Honour therefore held at [84] that Indara’s grounds of review were “accurately framed” as grounds on which the Eligible Revenue Assessment was challenged.

43    We have some reservations concerning this aspect of the primary judge’s reasoning. It is not clear to us that, if the ACMA fell into error in deciding not to make a declaration under s 9(2) or s 33 of the TER Determination, it would necessarily follow that the Eligible Revenue Assessment proceeded on a wrong basis and should be set aside or that setting the Eligible Revenue Decision aside cures the error. It would remain the case that no declaration was made, unless the ACMA was also ordered to reconsider its refusal to make a declaration. However, given the conclusions we have reached in relation to s 9(2), it is not necessary to pursue this issue.

The effect of s 58 of the TCPSS Act

44    As noted earlier, the TCPSS Act has some similarities with the way Commonwealth taxation legislation has commonly been structured. The formal imposition of the TIL by the TIL Act, with provisions for assessment and collection contained in the TCPSS Act, reflects an understanding that the TIL is a tax and its imposition must therefore comply with s 55 of the Constitution. Other aspects of the legislative regime that reflect the treatment of the TIL as a tax include the obligation imposed on those potentially liable to make a “return”, and the “assessment” of the amount payable (and the integers thereof) by the entity administering the legislation.

45    Sections 58 to 60 of the TCPSS Act reflect provisions that are familiar to tax practitioners. Section 58 is in similar terms to s 175 of the Income Tax Assessment Act 1936 (Cth) (the ITAA36). Section 59 performs the same role as the former s 177 of that Act, now found in item 2 of the table in s 350-10(1) of the Taxation Administration Act 1953 (Cth) (the TAA). Section 60 bears some similarity to ss 14ZZK(b) and 14ZZO(b) of the TAA, which are part of the regime in Part IVC of that Act for review of and appeals from decisions made by the Commissioner of Taxation on objections to assessments.

46    Section 175 of the ITAA36 significantly restricts the extent to which a tax assessment can be reviewed for jurisdictional error, as explained in Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; 237 CLR 146 at [23]-[25] (Gummow, Hayne, Heydon and Crennan JJ) (Futuris). If what is produced answers the description of an assessment, it is not liable to be set aside for non-compliance with the enabling statute (for an example of the effect of s 175, see Chevron Australia Holdings Pty Ltd v Commissioner of Taxation [2017] FCAFC 62; 251 FCR 40 at [107]-[110] (Pagone J, Allsop CJ and Perram J agreeing)).

47    However, s 175 of the ITAA36 operates in the context of Part IVC of the TAA. As it was described in Futuris at [24]:

…the result is that the validity of an assessment is not affected by failure to comply with any provision of the Act, but a dissatisfied taxpayer may object to the assessment in the manner set out in Pt IVC of the [TAA]; in review or appeal proceedings under Pt IVC the amount and all the particulars of the assessment may be challenged by the taxpayer but with the burden of proof provided in s 14ZZK and s 14ZZO of the [TAA].

48    The TCPSS Act contains an analogue of s 175 of the ITAA36 (s 58) but no analogue of the regime for merits review and appeals in Part IVC of the TAA (except, curiously, for the provision relating to the burden of proof: s 60). In the absence of a regime for appeal or merits review s 58, if read literally, purports to insulate assessments of TIL from review to an extent that would seem to preclude any prospect of success for Indara, but also raise questions as to the consistency of the section with s 75(v) of the Constitution.

49    Questions of this nature were raised, in relation to s 474 of the Migration Act 1958 (Cth), in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 (Plaintiff S157). They were avoided by construing that provision in the light of the general rule that a statute should be given a construction consistent with the Constitution if such a construction is fairly open, and the presumption that Parliament does not intend to cut down the jurisdiction of the courts (at [71]-[78] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)).

50    In this appeal the Court sought assistance from the parties on the effect of s 58 of the TCPSS Act. With leave, brief written submissions were filed after the hearing.

51    The ACMA, whose submissions on this point were embraced by Indara, expressly disavowed any submission that s 58 would save the Eligible Revenue Assessment from invalidity if it involved a failure to assess eligible revenue in accordance with relevant provisions of the TER Determination. It said:

When s 58 speaks of an “assessment under this Division”, it does not speak of an assessment that involves a jurisdictional error, as the ACMA accepts would be so of a failure to ascertain eligible revenue in accordance with the [TER] Determination. Such an assessment would be regarded, in law, as no assessment at all. Instead, “assessment under this Division” refers only to an assessment infected by a non-jurisdictional error.

52    The proposition that a purported assessment affected by jurisdictional error would be “no assessment at all”, and therefore not within the scope of s 58, was supported by reference to Plaintiff S157 at [75]-[76] where essentially the same reasoning was applied to the provision in issue in that case. It was submitted that s 58 should be construed as applying only to an assessment that does not involve jurisdictional error, and (therefore) as relevant only to non-jurisdictional errors such as failures to comply with notification requirements.

53    Textually, this represents a very strained reading of s 58. The section on its face provides that the validity of an assessment is not affected by a contravention of Division 6. Ordinarily, such language would be taken to be speaking expressly (and solely) to questions of jurisdictional error. However, a literal construction also involves some incongruity in that it contemplates an assessment simultaneously made “under this Division” and involving a “contravention of this Division”.

54    The construction advanced by the parties has two virtues which mean that it should be accepted. First, it avoids a situation in which other provisions of Division 6 would be rendered otiose and there would be few if any enforceable limits (other than good faith) on the power of the ACMA to make an assessment. Striving for a construction that avoids those results is consistent with the principles invoked in Plaintiff S157. Secondly, it is supported by the Revised Explanatory Memorandum to the Bill for the Act that inserted Division 6 into the TCPSS Act (the Telecommunications Legislation Amendment (Deregulation) Act 2015 (Cth) (the 2015 Act)), which said:

This section is intended to prevent the validity of an assessment being challenged on a minor technical matter or failure of procedure.

55    We therefore proceed on the basis that s 58 has no bearing on Indara’s grounds of appeal, in so far as those grounds allege errors going to jurisdiction.

Grounds 2 to 7: the ACMA’s approach to whether revenue was derived from activities in the “telecommunications industry”

Ground 2

56    Ground 2 seeks to lay a foundation for later grounds of appeal. If made out, it would not in itself lead to the appeal being allowed. Ground 2 is as follows.

The primary judge erred in finding ACMA's letter dated 30 July 2021 contained part of the reasons for the Decision.

57    The primary judge observed at [85] that there was no requirement for the ACMA to give reasons for the Eligible Revenue Assessment and reasons were not requested under the ADJR Act. There was therefore no single document constituting a statement of reasons in any formal sense. Rather, where the reasons for the decision needed to be identified, the question was what constituted reliable evidence of the reasoning of the various decision makers involved. There was no doubt (as her Honour noted at [86]) that the October letter articulated reasons for the decision by the ACMA not to make a declaration in the exercise of its powers under s 9(2) or s 33 of the TER Determination. However, at [87]-[92], her Honour accepted a submission by the ACMA that the July letter and the October letter together set out the reasons for making the Eligible Revenue Assessment.

58    The July letter comprised (as the primary judge noted at [90]) the notice that s 48(2) of the TCPSS Act required to be given of the ACMA’s intention to assess Indara’s eligible revenue on the basis of an estimate. While s 48(2) does not require reasons to be given, the purpose of giving notice is clearly to give the recipient an opportunity to file a return or seek to persuade the ACMA that no assessment should be made (or the assessment should be for a different amount to that proposed). It was therefore clearly desirable for the ACMA to give an indication of its reasoning.

59    The other point that should be borne in mind in relation to the July letter is that the decision then in contemplation (to assess Indara’s eligible revenue on the basis of an estimate) necessarily involved a judgment that the material submitted on 30 October 2020, affirming that Indara’s eligible revenue was zero, was not a sufficient return. The only substantial point of difference between the parties’ positions was the characterisation of the APL infrastructure revenue and this was what the July letter dealt with.

60    The July letter said (relevantly to the issues in the appeal):

On 30 October 2020, Axicom Land submitted a statutory declaration to the ACMA stating that its eligible revenue for the 2019-2020 ERP was less than $25 million and therefore, it considered itself to be a non-participating person for the period under the Telecommunications (Participating Persons) Determination 2015 (the PP Determination). Axicom Land came to this position in calculating its eligible revenue by deducting the entire amount of sales revenue of [APL], claiming it to be non-telecommunications sales revenue.

…

Based on the information available, I do not agree that the entire amount of [APL’s] sales revenue may reasonably be described as non-telecommunications sales revenue that can be deducted in calculating Axicom Land’s eligible revenue.

…

Based on the information available, I estimate that Axicom Land’s eligible revenue for the 2019-2020 ERP (with allowable deductions totalling $31,163,000) is $200,576,000. Further details about how the estimate was calculated are set out below.

…

Estimate of Axicom Land's eligible revenue

The estimate of Axicom Land's eligible revenue for the 2019-2020 ERP was calculated in accordance with the Telecommunications (Eligible Revenue) Determination 2015 (the [TER] Determination), as described below.

…

[The effect of s 16(1) of the TER Determination was summarised and the definition of “non-telecommunications sales revenue” in the TER Determination was set out.]

…

Axicom Land, in correspondence with the ACMA, indicates that [APL’s] business is as the owner of passive infrastructure (including towers, land and rooftops) and leasing or licensing access to such assets to third parties, primarily carriers. Furthermore, [APL’s] website indicates that its core business is owning, operating and leasing Australia-wide tower and rooftop sites for wireless communication and that most of its sites have been built to support mobile networks.

Based on this information, most of [APL’s] sales revenue appears to have been earned from an activity in the ‘telecommunications industry’. The activity of owning and operating wireless communications sites (most of which have been built to support mobile networks) and making those sites available to customers (primarily carriers) is something that appears to be within the ‘telecommunications industry’ (based on the ordinary meaning of the expression). The activity is also covered by paragraph (f) of the definition of ‘telecommunications industry’ to the extent that it involves ‘providing access to... a telecommunications network... or a facility... used to supply a listed carriage service’. Therefore, I do not agree that the entire amount of [APL’s] sales revenue may reasonably be described as non-telecommunications sales revenue that can be deducted under section 16 of the [TER] Determination.

61    In the 16 August letter Indara’s solicitors expressed disagreement with the conclusion that the revenue of APL could not be described as non-telecommunications sales revenue but did not advance further arguments on that point. The letter asked the ACMA to consider Indara’s request for exercise of the powers in ss 9(2)(a), 15(5) and 33 of the TER Determination and advanced arguments as to why one of those powers should be exercised in Indara’s favour. It added that Indara “expects to receive a statement of reasons outlining the basis on which a decision on the exercise of theses [sic] powers was reached”.

62    The October letter responded to the 16 August letter. It began as follows.

I refer to your letter of 16 August 2021 regarding the eligible revenue of Axicom Land Pty Ltd (Axicom Land) for the 2019-20 eligible revenue period in response to my letter of 30 July 2021. Your letter also refers to earlier correspondence we have received from your client, including an email from Priti Pasupuleti dated 2 November 2020 and a letter from Stefan Kennedy dated 9 December 2020.

In your letter you note, but indicate that you do not agree with, the ACMA’s view that the entire amount of the sales revenue of Axicom Pty Ltd (Axicom) is not non-telecommunications sales revenue and the ACMA’s view that Axicom Land is a participating person pursuant to section 44 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act).

I understand that, as the ACMA has formed those views, it is your client’s request that the ACMA exercise its power pursuant to paragraph 9(2)(a), subsection 15(5) or section 33 of the Telecommunications (Eligible Revenue) Determination 2015 (the ER Determination) to declare that the revenue of Axicom may be deducted. I also note you have advised that your client expects to receive a statement of reasons outlining the basis upon which a decision on the exercise of the ACMA’s power was reached.

The ACMA has considered your client’s request and, in doing so, has noted the matters you have submitted in support of that request. The ACMA has also considered the other information Axicom Land has provided as well as publicly available information relevant to the matter.

For the reasons set out below, the ACMA has decided not to make a declaration under subsection 9(2) or section 33 of the [TER] Determination. The ACMA also considers that subsection 15(5) has no application in this case.

63    The October letter thus proceeded on the basis that the ACMA had formed the view conveyed in the July letter as to the characterisation of the revenue earned by APL; it was not currently being asked to revisit that conclusion; and this was the starting point for consideration of whether the discretions should be exercised. The letter nevertheless referred back to the position that had been stated in the July letter. Relevantly to the present issues, it said:

As explained in my letter of 30 July 2021, I consider that $1,020,000, identified as initial sales revenue earned from building rentals and compensation from landlords for tower relocations, is non-telecommunications sales revenue under subsection 9(1) of the [TER] Determination that can be deducted under section 16 of the [TER] Determination.

However, as also explained in my letter, Axicom’s sales revenue from its business of managing and operating wireless communication sites, including towers, where it leases space on these sites to customers for the operation of wireless communication equipment (Axicom tower revenue) is telecommunications sales revenue. This is because the revenue is derived from an activity in the telecommunications industry, namely operating or providing access to a facility used to supply a listed carriage service. A facility includes any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network (see section 7 of the Telecommunications Act 1997 and subsection 5(1) of the TCPSS Act).

It follows that the ACMA considers that this revenue is not earned from an activity outside the telecommunications industry, and it therefore does not fall within the definition of non-telecommunications sales revenue in subsection 9(1) of the [TER] Determination.

64    After explaining the reasons why the ACMA had decided not to make a declaration (which will be referred to further below in connection with other grounds of review), the October letter said:

Subject to subsection 48(4) of the TCPSS Act, the ACMA will now proceed to exercise its power under subsection 47(1) of the TCPSS Act and make a written assessment of Axicom Land’s eligible revenue for the 2019-20 eligible revenue period based on the estimate set out in my letter of 30 July 2021.

65    The point that is emphasised by Indara is that, while the reasons given in the July letter refer to both “the ‘telecommunications industry’ (based on the ordinary meaning of the expression)” and para (f) of the definition in the Telecommunications Act, the October letter appears to invoke only the latter as a reason for concluding that APL’s revenue was earned from activities in the telecommunications industry. However, read in context, these passages of the October letter were referring back to and seeking to summarise the position that the ACMA had reached in July 2021. To the extent that the July letter set out reasons for that position that were not repeated, the October letter is not to be read as abandoning or disavowing them.

66    Importantly, also, the memorandum provided to Ms Owens (the delegate who actually made the Eligible Revenue Assessment) included the following in relation to Indara.

Based on the information available, it was the delegate’s view that the majority of Axicom Pty Ltd’s sales revenue appeared to have been earned from an activity in the ‘telecommunications industry’. In reaching that view the delegate considered that the activity of owning and operating wireless communications sites (most of which have been built to support mobile networks) and making those site [sic] available to customers (primarily carriers) is something that appeared to be within the ‘telecommunications industry’ (based on the ordinary meaning of the expression). The delegate considered that the activity is also covered by paragraph (f) of the definition of ‘telecommunications industry’ to the extent that it involves ‘providing access to… a telecommunications network… or a facility… used to supply a listed carriage service’. Therefore, the delegate did not agree that the entire amount of Axicom Pty Ltd’s sales revenue may reasonably be described as non-telecommunications sales revenue that can be deducted under section 16 of the [TER] Determination.

…

In accordance with section 48 of the TCPSS Act and taking into consideration the requirements of the [TER] Determination, the delegate estimated Axicom’s Land’s [sic] eligible revenue…

Because Axicom Land did not give the ACMA an ERR for the 2019-20 ERP, the delegate, in accordance with subsection 48(2) of the TCPSS Act, wrote to Axicom Land on 30 July 2021 providing the requisite 14 days’ notice of the amount of eligible revenue proposed to be assessed (being the amount of $200,576,000) and the proposal to make an assessment based on the estimate.

Axicom Land wrote to the ACMA on 16 August 2021 indicating that it did not agree with the estimate of its eligible revenue and requesting the ACMA exercise its power pursuant to paragraph 9(2)(a), subsection 15(5) or section 33 of the Telecommunications (Eligible Revenue) Determination 2015 (the [TER] Determination) …

The Authority considered the request in its 23 September 2021 meeting and made a decision to not make a declaration …

The ACMA has responded in writing to the Maddocks letter providing a statement of reasons to support the ACMA’s decision to not make a declaration as requested. The letter also stated the ACMA’s intention to proceed to make an assessment of Axicom Land’s eligible revenue for the ERP based on the estimate set out in the delegate’s letter of 30 July 2021. Accordingly, the recommended eligible revenue assessment for Axicom Land is $200,576,000. No further correspondence has been received.

(Emphasis added.)

67    The best evidence of Ms Owens’ reasoning is the briefing provided to her. That briefing recommended an assessment in a specified amount, being the amount estimated in the July letter, and gave an account of the reasoning behind that estimate which accorded with what was said in the July letter.

68    For these reasons we agree with the conclusion of the primary judge. The ACMA’s reasons for concluding that the revenue of APL was not non-telecommunications sales revenue for the purposes of s 16 of the TER Determination were not limited to the matters expressly mentioned in the October letter.

Grounds 3 and 4

69    Grounds 3 and 4 travel together. They are as follows.

3.     The primary judge erred in finding that ACMA made the Decision on the basis of a finding that the revenue of Axicom Pty Ltd (APL), a related party of the Appellant, was earned from an activity in the “telecommunications industry” within the plain and ordinary meaning of that term (for the purposes of s 7 of the [Telecommunications Act]), in circumstances where ACMA made the Decision not on that basis but in reliance on paragraph (f) of the definition of “telecommunications industry” in s 7 of the [Telecommunications Act]: PJ [89]-[90].

4.     The primary judge erred in failing to find that ACMA had made the Decision in reliance on paragraph (f) of the definition of “telecommunications industry” in s 7 of the [Telecommunications] Act.

70    At [98] – [125] of her reasons, the primary judge considered whether the ACMA had erred in finding that the APL infrastructure revenue was earned from activities within the “telecommunications industry” according to the ordinary meaning of that expression. Her Honour held that that finding was “evidently correct” (at [105]), for reasons which were explained at [106] – [124], and there was therefore no error in the ACMA’s finding that the revenue in question was not “non-telecommunication sales revenue” as defined in s 9 of the TER Determination.

71    Grounds 3 and 4 contend that this reasoning proceeded on a false premise as to what the ACMA had actually found. The contention is that the ACMA found the relevant activities to be within the “telecommunications industry” only on the basis that they came within para (f) of the definition in s 7 of the Telecommunications Act.

72    For reasons explained above in connection with ground 2, these grounds must be rejected. While parts of the October letter, read in isolation, could convey an impression that the relevant finding relied solely on para (f) of the definition, consideration of the evidence as a whole makes it clear that the foundation for the finding was not so narrow. The primary judge’s reasoning did not proceed on a misunderstanding as to the findings that the ACMA made.

Ground 5

73    The primary judge also held that, to the extent that the ACMA relied on para (f) of the definition in s 7 of the Telecommunications Act for its finding in relation to the APL infrastructure revenue, it did not err. The reasoning supporting this conclusion is found in her Honour’s reasons at [126] – [148]. Ground 5 is as follows.

The primary judge erred in failing to find that ACMA fell into an error of law in concluding that APL derived its revenue from providing access to “facilities” used for the purpose of supplying listed carriage services, for the purposes of paragraph (f) of the definition of “telecommunications industry” in s 7 of the [Telecommunications Act].

74    In so far as the ACMA’s reasoning on this point is expressed in writing, it is found in:

(a)    an observation in the July letter that “[the] activity is also covered by paragraph (f) of the definition of ‘telecommunications industry’ to the extent that it involves ‘providing access to … a telecommunications network ... or a facility ... used to supply a listed carriage service’”;

(b)    observations in the October letter that the APL infrastructure revenue was derived from “operating or providing access to a facility used to supply a listed carriage service” and that “[a] facility includes any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network”; and

(c)    the statement in the briefing note to Ms Owens that “the activity is also covered by paragraph (f) of the definition of ‘telecommunications industry’ to the extent that it involves ‘providing access to… a telecommunications network… or a facility… used to supply a listed carriage service’”.

75    Each of these versions of the reasoning appears to involve a conclusion that the facilities owned and maintained by APL (and to which it provided access for reward) were “facilities” that were “used to supply a listed carriage service” within the meaning of the definition of the “telecommunications industry”.

76    Two further definitions in the Telecommunications Act are relevant here.

(a)    “Listed carriage services” are defined by s 16 of the Telecommunications Act. In summary, they are carriage services that serve points in Australia. “Carriage service” is defined by s 7 to mean “a service for carrying communications by means of guided and/or unguided electromagnetic energy”.

(b)    “Facility” is defined in s 7 as follows.

facility means:

(a)     any part of the infrastructure of a telecommunications network; or

(b)     any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.

77    The material before the Court does not suggest that the ACMA undertook any independent analysis of the facilities from which APL derived revenue. Those facilities were described in the material before decision makers as follows.

(a)    “our telecommunications sites (towers, rooftops, direct land lease) [leased] to our customers who range from major wireless carriers and broadband providers as well as government agencies and broadband data service providers” (in an email on 22 September 2020);

(b)    “passive infrastructure, land and buildings” (in the email sent on 2 November 2020);

(c)    “passive infrastructure including towers, land, rooftops etc (none of which are network units)” (in a letter dated 9 December 2020); and

(d)    “wireless communications sites (most of which have been built to support mobile networks)” (in the briefing note to Ms Owens (reflecting language used in the July letter)).

78    It is not clear how the authors of the July letter and the briefing note to Ms Owens came to the view that “most” of these facilities had been “built to support mobile networks”: that is by no means an irresistible inference from the material that was before the ACMA and is now before the Court. No specific complaint is made about this. However, Indara submits that the primary judge proceeded on a flawed factual premise in stating (at [144]) that the facilities in question were “purpose-built for use in connection with a telecommunications network”.

79    How something is to be used is (as O’Bryan J noted in Melbourne City Council v Telstra Corporation Ltd [2020] FCAFC 200; 281 FCR 379 at [155]) a question of fact. Whether the facilities from which APL earned revenue were “purpose-built for use in connection with a telecommunications network” was, therefore, a matter for determination by the ACMA rather than the primary judge. We therefore read the observation with which Indara takes issue as seeking to record the basis on which the ACMA was proceeding rather than expressing a finding of primary fact by her Honour. However, with that qualification, the submission is correct. The ACMA did not express a clear finding on the point, but the material before the decision makers did not go any higher than to suggest that “most” of the facilities had been “built to support” mobile networks.

80    The material before the Court indicates that that the ACMA had only a fairly general idea of what the relevant facilities were (it did not have, for example, a list of the individual properties) but had been told that they included land, rooftops and towers; and that, despite their variety (including, apparently, as to whether or not they had been “built to support mobile networks”), the revenue earned from these facilities was dealt with by the ACMA as an undifferentiated whole. The ACMA thus dealt with all of these facilities as a class, in circumstances where the most that could be said about them as a class was that:

(a)    they were owned and managed by an entity whose customers were providers of carriage services; and

(b)    they were used, or available and suitable to be used, by those customers as places to locate equipment that would form part of their networks.

81    In Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179; 200 ALR 308 (Hurstville) the NSW Court of Appeal considered whether a new light pole proposed to be erected by the respondent, replacing one owned by the Council, could be erected without the Council’s consent pursuant to provisions in the Telecommunications Act protecting licensed carriers. That issue turned in part on whether the proposed new pole was a “facility” within the meaning of that Act. In relation to the words “pole or other structure or thing used, or for use, in or in connection with a telecommunications network” in the definition of “facility” Mason P (with whom Handley and McColl JJA agreed) said the following (at [67]).

The respondent argues that the words should be construed and applied literally, so that any conceivable structure or thing is a facility so long as it is used or for use, in or in connection with a telecommunications network. At this point, an alternative reading of the definition offers itself. Schedule 3 elsewhere distinguishes between “facilities” and the land or structures to which they are fixed (see eg cl 2 (definition of installation), 47). It makes perfect sense to say that the Harbour Bridge remains a bridge and does not itself become a facility even though facilities (low-impact or otherwise) might be installed upon or affixed to it. Likewise with existing buildings erected as residences etc but which have “facilities” attached to their rooftops. The definition of “facility” can operate to its full literal extent in such situations without turning the bridge or building into part of the facility itself. Part (b) of the definition makes perfect sense if construed as being confined to any line, equipment etc or thing that is purpose-built or dedicated by its inherent nature for use in or in connection with a telecommunications network or which is actually used accordingly. It is not necessary to treat an existing (non purpose-built) pole, structure or thing upon which a “facility” is placed as the facility itself.

82    This passage was cited by the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) in Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12; 80 ALJR 711 at [83] (Mitcham), where an issue arose as to whether certain stobie poles erected by a State electricity authority (referred to as ETSA) were “towers” within the meaning of the Telecommunications Act when the appellant’s facilities were installed on them. The poles, erected to replace pre-existing ones, had been located and constructed with a view to installation of facilities on them by the appellant. The respondent sought to distinguish Hurstville on the basis that the stobie poles in question were not “non purpose-built”. As to that submission, the Court said at [85]:

However, merely establishing that ETSA erected stobie poles at the relevant sites in order to permit installation by Hutchison of its facilities does not necessarily demonstrate that those poles were intended for such use. This is because the definition of the term “facility” in the [Telecommunications] Act requires that attention be directed, not to the motive for the installation of a structure or thing, but the function which that structure or thing serves or was designed to serve.

83    At first blush these observations sit somewhat uneasily with the word “used” in the definition of “facility” (which, on its face, refers to actual use rather than any particular design features of the object in question). Both Hurstville and Mitcham concerned the construction of new infrastructure, which required focus on the words “to be used”. However, the words must be read together, and preferably (as Mason P explained) in a way that does not result in a bridge or a private dwelling becoming a “facility” under the Telecommunications Act when equipment is attached to it. In the light of these authorities, the phrase “used … in or in connection with a telecommunications network” must be understood to refer to use as an element in such a network or use, in connection with such a network, for which the object was “designed”.

84    The ACMA did not express any finding about the properties producing the APL infrastructure revenue that was capable of bringing those properties, as an entire class, within the concept of a “facility” as defined in the Telecommunications Act. Nor did the ACMA have before it material that could have supported such a finding in relation to all of the properties. For this reason, in so far as the ACMA relied on para (f) of the definition of the “telecommunications industry” as a basis for concluding that the APL infrastructure revenue was not “non-telecommunications sales revenue”, it erred.

85    Ground 5 is therefore made out. However, in the light of our conclusions on grounds 2 to 4, this is not sufficient for Indara’s appeal to succeed. Unless the ACMA’s reliance on the ordinary meaning of “telecommunications industry” is also successfully impugned, its erroneous reliance on para (f) of the definition cannot have made a difference to the outcome and the error therefore does not warrant the setting aside of its decision, either under s 39B of the Judiciary Act (cf eg MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506) or in the exercise of the power to grant relief for an error of law under s 16 of the ADJR Act (Polaris Coomera Pty Ltd v Minister for the Environment [2021] FCA 254 at [26] (Rangiah J); cf Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 at [40] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ)).

Grounds 6 and 7

86    To the extent that the ACMA relied on a finding that the APL infrastructure revenue came within para (f) of the definition of the “telecommunications industry”, grounds 6 and 7 cover ground which has already been traversed in our discussion of ground 5. They are as follows.

6.    The primary judge erred in finding that the revenue of APL was not “non-telecommunications sales revenue” for the purpose of s 9 of the [TER Determination] on the basis that APL’s revenue was earned from an activity of providing access to “largely” or “mostly” purpose-built infrastructure (PJ [106]-[109], [144]-[145]), in circumstances where ACMA had not made the Decision on such a basis.

7.     Further and in the alternative to ground 3, the primary judge erred in finding that ACMA correctly applied the concept of “telecommunications industry” in s 7 of the [Telecommunications] Act, in concluding that the revenue of APL was not earned from an activity outside the “telecommunications industry” for the purpose of s 9 of the [TER] Determination.

87    It was submitted in support of these grounds that:

…the primary judge erred in finding that the ACMA had satisfied itself that APL’s sales revenue fell within the meaning of “telecommunications industry” because “most of its sites have been built to support mobile networks”: PJ [144]. The ACMA made no such finding in the reasons for the Decision.

88    This submission fails because of the conclusion we have reached in relation to ground 2: the October letter was not a comprehensive statement of the “reasons” for making the Eligible Revenue Assessment. Reasoning to the effect that most of the relevant sites were “built to support mobile networks” can be discerned in the July letter and in the briefing to the ultimate decision maker, Ms Owens.

89    It was submitted in the alternative that a finding to the effect that none of the APL infrastructure revenue was non-telecommunications sales revenue was not open to the ACMA given that “at best, the ACMA concluded that a majority of APL’s sales revenue was earned from an activity in the ‘telecommunications industry’”. For reasons set out above, we accept this submission in so far as it relates to the ACMA’s reliance on para (f) of the definition of the “telecommunications industry”. However, it does not follow that the submission is correct in relation to the ACMA’s conclusion that the APL infrastructure revenue was earned in the “telecommunications industry” within the ordinary meaning of that expression.

90    The issue posed by s 9(1) of the TER Determination was whether the APL infrastructure revenue was “earned from an activity outside the telecommunications industry”. To the extent that the ACMA answered that question on the basis that the relevant activity was “installing, maintaining, operating or providing access” to “facilities” (within the meaning of para (f)), the character of the putative “facilities” was critical. However, to the extent that the ACMA relied (as we consider it did) on a broader conception of the “telecommunications industry”, the question required analysis and characterisation of APL’s “activities” as a whole rather than the design and function of each of its individual properties.

91    The material before the ACMA revealed that APL held a large portfolio of sites, many of which had been acquired from telecommunications providers (who found it advantageous not to have such properties on their balance sheets), many (or “most”, as the ACMA found) of which were “purpose-built” to host telecommunications facilities, and access to which was offered to providers of telecommunications networks. It was open to the ACMA to conclude, on the basis of this material, that APL was a participant in the “telecommunications industry”. The argument (advanced by Indara on 9 December 2020) that APL was analogous to an ordinary landlord or an electricity provider, while clearly tenable, was not so compelling that the ACMA was bound to accept it. APL offered a service to telecommunications providers that was tailored to their needs, including access to sites selected and maintained in order to be suitable for those needs.

92    For these reasons grounds 6 and 7 are rejected.

Grounds 8 to 13

93    Grounds 8 to 13 relate to the decision by the ACMA not to use its power under s 9(2) of the TER Determination to declare that the APL infrastructure revenue was non-telecommunications sales revenue. They are as follows.

8.     The primary judge misconstrued s 9(2) of the [TER] Determination by:

(a)     finding that the purpose of a declaration under s 9(2) is clarificatory only and the power may only be exercised where there is a question about the proper characterisation of “non-telecommunications sales revenue” within the meaning of s 9 of the [TER] Determination where the scope of the discretion, properly construed, is not so confined: PJ [159], [163], [167], [169]; and

(b)     treating the fact that revenue meets the definition of “non-telecommunications sales revenue” in s 9(1) of the [TER] Determination as a permissible consideration in refusing to make a declaration under s 9(2).

9.     The primary judge erred in failing to find that the power to make a declaration under s 9(2) of the [TER] Determination allows ACMA to declare as “non-telecommunications sales revenue” revenue that would otherwise meet the definition in s 9(1) of the [TER] Determination.

10.     The primary judge erred in failing to find that ACMA had erred in rejecting the Appellant’s request for a declaration under s 9(2) of the [TER] Determination on the basis that it was beyond the scope and purpose of the power conferred by s 9(2): PJ [164].

11.     The primary judge erred in failing to find that ACMA had erred in rejecting the Appellant’s request for a declaration under s 9(2) of the [TER] Determination by taking into account, as a reason not to exercise the discretion, that the Appellant was a carrier during the eligible revenue period.

12.     The primary judge erred in finding that ACMA’s policy or position adopted in the letter dated 13 October 2021 regarding the exercise of the discretion in s 9(2) of the [TER] Determination was not inconsistent with the scope of the discretion conferred on ACMA by s 9(2) of the [TER] Determination where the scope of the discretion, properly construed, permitted a broader range of purposes than provided for in the policy or position: PJ [169].

13.     The primary judge erred in failing to find that ACMA had not taken into account the following considerations which were mandatory in light of the request for a declaration under s 9(2) of the [TER] Determination:

(a)     the nature of the Appellant’s business and the purpose for which it obtained a carrier licence;

(b)     that APL was not a direct beneficiary of the universal telecommunications services, that APL had a pre-existing history of earning revenue of the kind in question without it being treated as eligible revenue for the purposes of the [TER] Determination, and the absence of any element of avoidance by APL; and

(c)     the objects of the [TER] Determination, including the reason for including in an assessment the revenue of consolidated related parties.

The ACMA’s reasoning

94    In the October letter, after restating the view that the APL infrastructure revenue did not come within s 9(1) of the TER Determination, Mr Geysen said the following in relation to s 9(2).

The ACMA is also of the view that the current circumstances do not support the exercise of its discretion in subsection 9(2) of the [TER] Determination because of the following:

1.     the ACMA considers that the power in subsection 9(2) is one that it would ordinarily exercise in very rare circumstances. For example, the ACMA may exercise the power to provide certainty as to what constitutes telecommunications or non-telecommunications sales revenue where there is doubt arising in the characterisation of the sales revenue of a particular participating person or persons. The ACMA has never exercised the discretion in subsection 9(2).

2.     the ACMA considers that it would be inappropriate to exercise the discretion in circumstances where there is no need to clarify whether revenue is telecommunications or non-telecommunications sales revenue. The ACMA notes that tower revenue of a similar kind to Axicom tower revenue has consistently been treated by other carriers and the ACMA as sales revenue earned from an activity in the telecommunications industry and has therefore been included as telecommunications sales revenue in the eligible revenue of other participating persons. This is consistent with the intent of the [TER] Determination which contemplates that revenue from the supply of services using telecommunications infrastructure or leasing of such infrastructure forms part of gross telecommunications sales revenue. Accordingly, if the ACMA were to declare that Axicom tower revenue (or any part of it) to be [sic] non-telecommunications sales revenue this would result in uncertainty and complexity and have implications for other participating persons that the ACMA should avoid.

3.     Axicom tower revenue is included in the calculation of Axicom Land’s eligible revenue because Axicom Land was a carrier during the eligible revenue period. Axicom Land was a carrier because it made a commercial decision to obtain a carrier licence to support its proposed business venture which you acknowledge required that it hold a carrier licence.

Analysis by the primary judge

95    Indara’s submissions below were summarised by the primary judge as follows (at [151]-[154]).

Axicom Land’s submissions on grounds 2 and 3 focused largely on the proposition that the purpose of the discretions vested in the ACMA under ss 9(2) and 33 of the [TER] Determination was to enable the ACMA to address tax avoidance by participating persons. Thus, given this view, Axicom Land submitted that, in considering whether APL’s sales revenue should be included in the calculation of Axicom Land’s eligible revenue, the ACMA had failed to have regard to a relevant consideration, namely whether (as Axicom Land submitted to the ACMA) there was no tax avoidance purpose in the revenue arrangements between Axicom Land and APL. In this regard, counsel for Axicom Land emphasised that APL had a pre-existing business that did not require a carrier licence:

[APL] had never held a carrier licence. They were never part of the net that’s cast by the levy, so for years prior to 2019, you can go on conducting this business of leasing access to land, buildings, structures. Whatever the revenue is and whatever character that revenue is, it was never part of the pool of eligible revenue, and it just sat entirely outside that, and on the logic of the scheme … it was never part of the intention that you spread the burden of the levy to people conducting that kind of business because they’re not carriers; they’re not participating persons.

All that has changed … is that a different entity which happens to be related, Axicom Land, acquired a carrier licence in 2019. It did that for its own independent reasons.

Conversely, Axicom Land submitted that those considerations to which the ACMA in fact had regard in refusing the exercise of its discretion, as explained in its October letter, were irrelevant, namely that:

(1)     the ACMA would exercise its powers “in very rare circumstances”, including where there is “doubt arising in the characterisation of the sales revenue of a particular participating person or persons”; and

(2)     the ACMA considered that it would be “inappropriate to exercise the discretion in circumstances where there is no need to clarify whether revenue is telecommunications or non-telecommunications sales revenue”.

The applicant argued that these considerations were irrelevant to the (primary) purpose of s 9(2), being to address tax avoidance, while it also accepted that certain other considerations were relevant, including that the levy would be spread proportionately among participating persons in a competitively neutral manner.

In support of this construction, Axicom Land submitted that, if s 9(2) is understood as being enlivened only where there is doubt about the classification of a particular revenue, “it will be a dead letter”. This was said to be “because the proper characterisation of revenue as either telecommunications sales revenue or non-telecommunications sales revenue does not turn on the perception of the administrative decision-maker but on proper legal characterisation”. Rather, Axicom Land submitted that the purpose of s 9(2) is to “change the characterisation” of “telecommunications sales revenue” into “non-telecommunications sales revenue”. It follows, in Axicom Land’s submission, that the ACMA took into account an irrelevant consideration and adopted a policy inconsistent with the purpose of the [TER] Determination by limiting the circumstances in which the s 9(2) discretion was to be exercised to cases where there was a need to “clarify… definitional boundaries”.

(Emphasis in original.)

96    The primary judge rejected these submissions. In order to understand the issues that arise, it is necessary to quote from her Honour’s reasons (at [159]-[171]) at some length.

159 First, and in contrast (as I shortly explain) to the discretion in s 33, the purpose of s 9(2) is to enable the ACMA to clarify what is and what is not telecommunications revenue in cases of doubt. It is not, as Axicom Land contends, to enable the ACMA to change the characterisation of revenue, despite the revenue being “objectively characterised” as telecommunications revenue. Thus, the heading to s 9 is “[m]eaning of non-telecommunications sales revenue”, s 9(1) itself defines non-telecommunications revenue, and s 9(2) empowers the ACMA to declare that a certain matter “is non-telecommunications sales revenue” (emphasis added). The use of the word “is” in s 9(2) in particular is a compelling indicator that the section was not intended to confer a discretion to, in effect, deem revenue to be non-telecommunications revenue, despite its objective character as telecommunications revenue. Understood in these terms, a declaration made pursuant to s 9(2) is intended to provide comfort to a participating person as to the proper characterisation of the revenue where that may be unclear. Furthermore, the fact that the legislator considered it necessary to include a note to s 9(1) giving examples of non-telecommunications sales revenue indicates that the legislator was concerned that there may be cases where the proper characterisation of revenue may be complex and in doubt, and it was therefore likely to be helpful to give illustrations.

160 This construction of s 9 is confirmed by [the Explanatory Statement to the Telecommunications Universal Service Obligation (Eligible Revenue) Regulations 1998 (Cth) (the 1998 Explanatory Statement)] that the powers to make declarations generally were intended from the outset to allow the regulator the flexibility to adapt to various circumstances and situations, and to “fine tune” the definition of eligible revenue in light of its practical experience and developing technologies. Thus the 1998 Explanatory Statement explained (at p. 15) in elaborating on regulation 9, which provided that gross telecommunications sales revenue was worked out using the steps in Schedule 1, that:

The use of revenue as the basis for determining USO contributions is new and untested in Australia and elsewhere in the world. Considerable discretion has therefore been given to the ACA through its declaration powers to adjust and fine tune the eligible revenue definition in the light of its practical experience. This discretion stems in part from the difficulty of foreseeing all the situations with which the accompanying Regulations may need to deal, particularly in such a rapidly changing industry as telecommunications.

(Emphasis added.)

161 More specifically, with respect to regulation 16 (which equates to s 9(2) of the [TER Determination), the 1998 Explanatory Statement explained (at p. 17) that:

Regulation 16 provides that the ACA may declare specified amounts or specified kinds of amounts of revenue to be non-telecommunications sales revenue.

Regulation 16 is intended to enable the ACA to provide certainty as to what constitutes non-telecommunications sales revenue and is therefore deductible under Step 2 of Schedule 1.

162 It follows that Axicom Land’s argument that the ACMA took into account irrelevant considerations in considering whether there was any doubt as to the proper characterisation of a participating person’s sales revenue as telecommunications or non-telecommunications sales revenue receives no support from the extrinsic materials. Nor does the text of s 9(2) or its context suggest that the question of whether there is doubt about the characterisation of revenue is irrelevant to the exercise of that discretion. To the contrary, the ACMA’s reasoning was based on a correct reading of the legislation.

163 Furthermore, as the discretion in s 9(2) has a clarificatory purpose only, it also follows that the question of whether or not a participating person was engaging in tax avoidance cannot be a mandatory relevant consideration in exercising that discretion. Logically, questions of tax avoidance cannot affect whether there is any doubt about the objective characterisation of revenue as telecommunications or non-telecommunications revenue.

164 Equally, Axicom Land’s submission that that it was mandatory for the ACMA to have “drawn on the full breadth of its practical experiences and turned its mind to whether there were other circumstances justifying a declaration” in the exercise of its s 9(2) discretion was based upon a misconstruction of the width and purpose of that discretion.

…

166 In the present case, the ACMA’s October letter setting out its reasons for deciding not to exercise the ss 9 and 33 discretions explained that the ACMA had considered Axicom Land’s request for the exercise of those discretions, noted the matters submitted by Axicom Land in support of that request, and considered the other information Axicom Land had provided. Furthermore, Axicom Land’s submissions had been set out in detail in the memorandum to the ACMA on 13 October 2021 recommending against the exercise of the discretions. In those circumstances, the only reasonably available inference to draw is that the ACMA was well aware of Axicom Land’s arguments as to the relevance of other factors, including that the ACMA should take into account the absence of any tax avoidance motive on its part, in the exercise of the discretions and (correctly) rejected those contentions as irrelevant to the exercise of the s 9 discretion.

167 Secondly, there is nothing to suggest that this construction would render s 9(2) otiose or a “dead letter”, as Axicom Land suggests. To the contrary, for the reasons I have given, the legislator plainly considered that there may be cases in which questions could legitimately arise as to whether certain sales revenue was properly characterised as telecommunications sales revenue. In those circumstances, a declaration from the ACMA under s 9(2) would have utility, because it would clarify whether an amount, or the value of a benefit or a service, is to be treated as “non-telecommunications sales revenue” by the ACMA for the purposes of assessing eligible revenue.

168 Thirdly, it is true, as Brennan J (as President of the Administrative Appeals Tribunal) observed in Re Drake and the Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179; (1979) 2 ALD 634 at 640 that:

a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute…

169 However, it follows from the purpose of s 9(2), properly construed, that the ACMA’s policy or position expressed in the October letter that it would be inappropriate to exercise the power in s 9(2) where there is no need to clarify whether revenue is telecommunications or non-telecommunications revenue is not inconsistent with the [TER] Determination, contrary to the applicant’s contention. Nor, for the same reason, is there any inconsistency in the ACMA’s policy or position that it “would be inappropriate to exercise the discretion in circumstances where there is no need to clarify whether revenue is telecommunications or non-telecommunications sales revenue”. That policy or position reflects the plain intention of the discretion in s 9(2) of the [TER] Determination.

170 Furthermore, merely adopting a policy or practice relating to the management of a discretion is not otherwise indicative of error. …

171 Finally, while the argument was also made that the ACMA’s reasoning was circular, it was not alleged that the reasoning was thereby rendered irrational or legally unreasonable. As such, it is unclear how any circularity could sound in an error of law or jurisdictional error. Further, insofar as Axicom Land submitted that the ACMA’s reasons for including APL’s sales revenue in the calculation of Axicom Land’s eligible revenue were because Axicom Land was a carrier during the eligible revenue period were circular, that was simply a consequence of the ACMA applying the [TER] Determination.

97    In the appeal, ground 8(a) takes issue with the first step in this reasoning. As it was put in Indara’s submissions, ground 8(b) and grounds 9 to 13 identify errors said to arise as a consequence of the misconstruction identified by ground 8(a).

Our analysis

98    A possible understanding of s 9(2) of the TER Determination is that it is akin to provisions for rulings under income tax legislation and is to be understood as providing for the ACMA (the body that must make an “assessment” of eligible revenue under s 51 of the TCPSS Act) to state a position as to the application of s 9(1) to a particular category of revenue that can then be relied upon by a participating person (eg in making a return). On that understanding, s 9(2) would not confer any discretion to treat revenue as falling within s 9(1) when on the proper construction of the provision it does not. However, the ACMA did not proceed on the understanding that s 9(2) was so limited in its decision-making. The passage in the October letter set out above indicates that the ACMA regarded a case of doubt as to the proper characterisation of revenue as an example of circumstances where s 9(2) might be used, and otherwise treated the use of s 9(2) as a discretionary matter to be guided by policy. This understanding of the ACMA’s reasoning is supported by the briefing prepared for the ACMA’s meeting, which did not suggest that a declaration could not be made but instead canvassed the circumstances of the case in some detail.

99    The ACMA’s submissions in the Court below did not contend that s 9(2) was unavailable as a matter of law in a case where it had a firm view that the revenue in question came within s 9(1).

100    Nor, as we read her Honour’s reasons, did the primary judge adopt a construction of s 9(2) that rendered it unavailable in the present case as a consequence of the ACMA having assessed the APL infrastructure revenue as falling within s 9(1). Some aspects of the reasoning quoted above (such as the exegesis of s 9 at [159])) appear to lead towards a conclusion that the power in s 9(2) is limited to resolving cases where the characterisation of particular revenue for the purpose of s 9(1) is doubtful (so that it cannot be used as a discretionary tool to deem revenue to be non-telecommunications sales revenue). However, such a conclusion would have been a short and complete answer to Indara’s submissions concerning s 9(2) and her Honour did not state a conclusion in such terms. Instead, her Honour referred at several points (at [159], [163] and [169]) to the “purpose” of s 9(2) as validating the policy adopted by the ACMA and resolving arguments concerning relevant and irrelevant considerations.

101    We read these references to the “purpose” of s 9(2) as invoking the concept of the “subject-matter, scope and purpose of the statute”, which was referred to in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J) (a passage that her Honour set out at [156]) as a source from which implications may be drawn limiting the factors to which a decision maker may legitimately have regard (or indicating factors to which the decision maker must have regard). We therefore understand the primary judge to have concluded that the issues required and permitted to be taken into account by the ACMA under s 9(2) were controlled by the provision having a narrow “purpose”, rather than that the provision only authorised action to be taken in a narrow class of case.

102    We therefore reject the second proposition in ground 8(a), which asserts that the primary judge proceeded on the basis that the power “may only be exercised where there is a question about the proper characterisation of ‘non-telecommunications sales revenue’” (emphasis added). As we have noted, her Honour did not state a conclusion along those lines even though it would have swiftly and simply resolved this aspect of the case. We also reject ground 9, which is the corollary of this assertion. However, this does not dispose of all the issues raised by grounds 8 to 13 concerning relevant and irrelevant considerations.

103    “Subject-matter, scope and purpose” are to be ascertained from the terms of the statute, read in context. The first point that should be noted, therefore, is that there is nothing in the terms of s 9 itself that imposes a limit on the matters that can be taken into account in deciding whether to exercise the power in s 9(2). We note that the primary judge at [159] referred to what her Honour regarded as strong indicators that s 9(2) was not intended to confer a discretion. However, as we have noted above, her Honour’s reasoning does not then proceed to the conclusion to which that consideration might be thought to lead (ie, that there was no power under s 9(2) to do what Indara asked). If s 9(2) is broader than a power to give a ruling on the application of the test in s 9(1) (and it appears to be common ground that it is), its terms are consistent with the vesting of a power in the ACMA to decide, on whatever grounds it considers appropriate, that a specified body of revenue is to be treated as “non-telecommunications sales revenue” even if it does not come within s 9(1). A declaration that an identified body of revenue “is” non-telecommunications sales revenue is not, in our view, materially different to a declaration that such revenue “is taken to be” non-telecommunications sales revenue: either form of words authorises a declaration that gives the revenue a particular status for the purposes of s 16 of the TER Determination.

104    It does not follow, of course, that the discretion thus conferred is at large. It must at least be exercised in good faith and for purposes compatible with the statutory scheme. One significant aspect of the scheme of the TCPSS Act is that it provides for a scheme in which a predetermined amount of revenue is to be collected from participating persons, so that a dispensation afforded to one participant directly affects the liabilities of others. It may well follow from that aspect of the statutory scheme that equal treatment as between participating persons is a mandatory consideration. There may also be considerations that are irrelevant (in the sense of extraneous) to the exercise of the power for this reason.

105    The Regulations to which the 1998 Explanatory Statement related (the 1998 Regulations) were part of a scheme that can properly be regarded as a predecessor of the current statutory regime. Sections 15 and 16 of those regulations performed a function analogous to s 9(1) and (2) of the TER Determination (although they contained no direct equivalent of s 9(4)). The relevant passages of the 1998 Explanatory Statement are quoted in the extract from the primary judge’s reasons set out above. The reference there to using the declaration power to “fine tune” the definition of non-telecommunications sales revenue suggests that s 16 of the 1998 Regulations may have been intended to allow the ACA to modify the effect of s 15 rather than merely provide “certainty” as to its operation. This point has limited force, however, for at least the following reasons.

(a)    The 1998 Regulations were made under what were then provisions of the Telecommunications Act. The primary legislation has been amended several times since then. The 1998 Regulations themselves were replaced by a Determination under the TCPSS Act (the Telecommunications Universal Service Obligation (Eligible Revenue) Determination 2002 (Cth)). That Determination was repealed and replaced by the Telecommunications Universal Service Obligation (Eligible Revenue) Determination 2003 (Cth), which was in turn replaced by the Telecommunications Universal Service Management Agency (Eligible Revenue) Determination 2013 (Cth) (the 2013 Determination). Each of these contained provisions in very similar form to the current s 9. The 2013 Determination was made under a different Act (the Telecommunications Universal Service Management Agency Act 2012 (Cth)) and vested power under what was now s 9(2) (in the same form as the present provision) in the ACMA. By the time the TER Determination was made, therefore, “eligible revenue” was no longer a “new approach”; and the intention of the makers of the 1998 Regulations was of diminished relevance.

(b)    The Explanatory Statement for the TER Determination explained that it was made following the enactment of the 2015 Act (which among other things abolished the Telecommunications Universal Service Management Agency) and was “substantially similar” to the 2013 Determination. There was no material difference in the drafting of s 9. The Explanatory Statement for the 2013 Determination said nothing of present relevance specifically in relation to s 9. However, as to declarations more generally, it said that the 2013 Determination “enables the ACMA to make specific declarations in respect of revenue in light of practical experience and to address conduct of participating persons”. The same statement appears in the Explanatory Statement for the TER Determination. A more complete review of the extrinsic materials thus suggests that the intended uses of s 9(2) were not limited to providing clarity in cases where the application of s 9(1) was doubtful; rather, the purposes included allowing the ACMA to mould the application of the Determination to meet new situations. We were informed that the primary judge was not taken to these materials.

(c)    Caution is needed, in any event, as to the use of extrinsic materials to identify the “purpose” of legislation. Identification of relevant and irrelevant considerations by reference to the subject-matter, scope and purpose of legislation (including subordinate legislation) is part of the task of statutory construction and the fundamental principles of construction apply. Legislative intention resides in the text; subjective intentions of the legislators are not relevant: Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [31]-[32] (French, CJ, Gummow, Hayne, Crennan and Kiefel JJ). Extrinsic materials, such as the Explanatory Statements for predecessors of the TER Determination, may be relevant as part of the context in which the statutory text is to be read in order to ascertain its meaning; however, they cannot be used to impose a meaning that the text cannot reasonably bear.

106    The extrinsic materials, to the extent that they assist, support the view that s 9(2) of the TER Determination was included in order to allow the ACMA to place specified amounts of revenue into the category of “non-telecommunications sales revenue” notwithstanding that they do not come within s 9(1) properly construed. In so far as the “purpose” of s 9(2) needs to be identified in order to form a view as to what considerations may properly be taken into account in its exercise, the provision of certainty in doubtful or debatable cases can be accepted as one of its purposes but is not the only purpose. To this extent, we respectfully differ from the primary judge’s analysis of the provision and agree with the first proposition in ground 8(a) (that her Honour misconstrued s 9(2) by “finding that the purpose of a declaration under s 9(2) is clarificatory only” (emphasis added)). It does not follow, however, that any part of grounds 10 to 13 should succeed.

107    Ground 10 contends that the primary judge should have found that the ACMA erred by rejecting Indara’s request for a declaration “on the basis that it was beyond the scope and purpose of the power conferred by s 9(2)”.

(a)    To the extent that it is submitted that the ACMA treated the power in s 9(2) as unavailable in the circumstances of the case, that submission is inconsistent with the evidence referred to above and must be rejected.

(b)    We should note at this point that counsel for the ACMA sought leave to file a notice of contention in order to contend for the construction of its reasons that we favour. We do not understand the primary judge to have found that the ACMA understood s 9(2) to be unavailable except to resolve uncertainty. Instead, her Honour referred at [169] to the ACMA having adopted a policy that exercise of the power would generally not be appropriate except to resolve uncertainty. On this understanding, the notice of contention is unnecessary. However, against the possibility that we have misread her Honour’s reasons, we will grant leave to file the notice of contention (which was not opposed by Indara).

(c)    If the argument advanced by ground 10 is that the ACMA erred by considering the making of a declaration to be inappropriate, on the basis of an understanding as to the purposes for which s 9(2) should be used, it resolves into a disagreement about the merits which raises no issue of law. The ACMA was entitled to adopt policies concerning the kinds of cases in which the power in s 9(2) should be used, as long as those policies were not inconsistent with the legislation.

108    Ground 11 contends that the primary judge should have found that the ACMA erred by taking into account, as a reason not to exercise the discretion, that Indara was a licensed carrier during the eligible revenue period. It will be recalled that, as part of its third reason for not making a declaration, the ACMA observed that the APL infrastructure revenue was included in the calculation of Indara’s eligible revenue because Indara was a licensed carrier, having made a commercial decision to acquire a licence.

109    Indara’s status as a licensed carrier was, of course, the reason why an assessment of its eligible revenue needed to be undertaken in the first place. It was a background fact which would necessarily be present in any consideration of whether to exercise the discretion in s 9(2) and therefore, in itself, neutral. However, read in context, this passage of the October letter was evidently a response to arguments put forward by Indara. In the 16 August letter Indara’s solicitors adopted the submissions made in earlier correspondence and advanced the following, among “compelling policy reasons” for the revenue to be deducted from Indara’s eligible revenue.

•    Axicom’s tower business does not require a carrier licence, and the revenue it earns is analogous to that of any landlord whose tenants include telecommunications companies;

•    Axicom’s [sic] has operated its tower business for many years without a carrier licence and without any obligation to contribute to the TIL;

•    The proposed venture to be established by Axicom Land, which does require a carrier licence has not, to date, generated any revenue;

•    Axicom’s tower business would face unfair competitive disadvantage if its existing revenue was subject to the TIL given its current business does not require a carrier licence and it faces actual and potential competition from competitors which are not carriers and are not subject to the TIL …

(Emphasis in original).

110    Read against this background, the relevant passage of the October letter is properly understood as rejecting an argument that the exposure of Indara to liability for TIL (based on the revenue earned by its related entities in the telecommunications industry) was anomalous and making the point that it was a normal and predictable consequence of Indara’s decision to acquire a carrier licence. In making this point the ACMA did not misunderstand the nature or scope of the power whose exercise it was considering, or take into account an irrelevant consideration.

111    Ground 12 contends that the primary judge should have found that the policy or position adopted by the ACMA was inconsistent with the scope of the discretion conferred by s 9(2) in that “the scope of the discretion, properly construed, permitted a broader range of purposes than provided for in the [ACMA’s] policy or position”. We reject this contention for reasons already mentioned. It is apparent from the terms of the October letter that the ACMA regarded the resolution of doubt concerning the application of s 9(1) as an example of a situation in which a declaration would be appropriate, and did not treat the absence of such doubt as the end of the matter. Informed by a general view that the power should be rarely exercised, the ACMA grappled with the circumstances of the present case (including the fact that comparable revenue had been included in the telecommunications sales revenue of other participating persons for the purpose of calculating their eligible revenue). This reasoning did not place any a priori limit on the purposes for which a declaration might be made.

112    Ground 13 contends that the primary judge should have found that the ACMA did not take into account three mandatory considerations:

(a)    the nature of Indara’s business and the purpose for which it had obtained a carrier licence;

(b)    aspects of APL’s position (it was not a direct beneficiary of the “universal telecommunication services”; it had a history of earning revenue of the type in question without it being treated as eligible revenue; and there was no element of “avoidance” by it); and

(c)    “the objects of the [TER] Determination”, including the reason for the inclusion of the revenue of related parties.

113    Indara’s submissions did not explain why these matters were mandatory considerations other than by a general reference to the “context and purpose of the scheme”. In our view, there is no basis for the assertion that these are mandatory considerations other than an impression that they are matters which a decision maker might well have considered significant. That is not sufficient. While it can be accepted that the ACMA is required to turn its mind to the circumstances of the case and give genuine consideration to the merits, it does not follow that any particular aspect of those circumstances is therefore a mandatory consideration. The considerations that are mandatory in this sense are a function of the statute, not the circumstances of the individual case; and, in order for a failure to address a particular matter to rise to the level of legal error, the statute must expressly or impliedly require consideration of the matter at that level of particularity: see Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442 at [22] – [23] (Gleeson CJ and McHugh J); Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 403; 291 ALR 314 at [80]-[84] (Besanko J) (reasoning which was not disturbed on appeal); R Lancaster and S Free, “The Relevancy Grounds in Environmental and Administrative Law” in N Williams (ed), Key Issues in Judicial Review (Federation Press, 2014) at 243.

114    Further, it has not been established that these issues were not considered by the ACMA. Each of these issues had been brought to the ACMA’s attention either in Indara’s email of 9 December 2020 or the 16 August letter from its solicitors, which adopted what had been said in the earlier email. Both documents were attached to the briefing prepared for the ACMA by its officers. The October letter, which set out the ACMA’s reasons, confirmed that the ACMA had noted the matters submitted in support of Indara’s request. The proper inference is that the ACMA considered these issues and did not think that they outweighed the matters to which it referred: indeed, as we have noted above, the third reason advanced by the ACMA in the October letter is in substance a rejection of Indara’s arguments that treatment of the APL infrastructure revenue as part of its eligible revenue was anomalous or unfair.

115    In coming to the view expressed in the previous paragraph we are mindful that, although the October letter was framed in response to Indara’s wish to receive a statement of reasons, it was not drafted in purported compliance with a statutory duty to provide a statement of reasons. The letter does not purport to list the evidence relied on, issues considered or submissions rejected in a comprehensive way. That makes it unsafe to infer, from mere silence in the October letter, that any particular issue was not considered: see, eg, Warren v Chief Executive Officer, Services Australia [2024] FCAFC 73 at [2] (Katzmann and Kennett JJ).

116    For these reasons, which differ to some extent from the reasoning of the primary judge, we consider that grounds 8 to 13 must be rejected.

Disposition

117    The appeal must be dismissed.

118    Neither party has sought to be heard on costs in the light of the outcome of the appeal. Costs should therefore follow the event in the usual way.

Associate:

Dated:    6 September 2024