GENERAL DISTRIBUTION
FEDERAL COURT OF AUSTRALIA
[2000] FCA 1160
TELSTRA CORPORATION LTD & OTHERS
V
SEVEN CABLE TELEVISION PTY LIMITED & OTHERS
SUMMARY
In accordance with the practice of the Federal Court in certain cases of public interest, the Court has prepared a brief summary to accompany the reasons for judgment that are to be delivered today. It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment. This summary is only intended to assist in understanding the main issues arising and the principal conclusions reached by the Court, and is thus necessarily incomplete.
18 August 2000
GENERAL DISTRIBUTION
FEDERAL COURT OF AUSTRALIA
[2000] FCA 1160
TELSTRA CORPORATION LTD & OTHERS
V
SEVEN CABLE TELEVISION PTY LIMITED & OTHERS
SUMMARY OF REASONS FOR JUDGEMENT GIVEN ON 18 AUGUST 2000
This is a summary of some of the matters forming the subject of the Full Court’s joint judgment in four related appeals, which were all heard together, along with other appeals in which judgment is also given today. The grouped appeals have raised several important and previously unconsidered questions as to the meaning and operation of some of the provisions of Part XIC of the Trade Practices Act 1974 (Cth) (“the TPA”). The present appeals are from orders of a single judge of the Court in exercise of the Court’s jurisdiction to review certain administrative decisions.
Essentially, Part XIC of the TPA establishes a national telecommunications access regime enabling, in certain circumstances, providers of television services to gain access to certain network facilities related to the broadcast of television and other services. The TPA provides that the ACCC, in accordance with the terms of the TPA, may declare certain telecommunications carriage services (and related services) to be ‘declared services’.
The TPA provides that in deciding whether to declare certain services in the long term interests of end-users, the ACCC is required to have regard to a number of factors including the extent to which declaration is likely to result in the achievement of the objective of promoting competition in markets for listed services.
Prior to the TPA coming into force, the ACCC, as required by transitional legislation, deemed in 1997 that certain elements of the FOXTEL broadcast system were ‘declared services’. In 1999 (pursuant to the TPA), the ACCC declared that the analogue subscription television (‘pay TV’) carriage service in question, which included Telstra’s national cable network and the FOXTEL broadcast and operating system, was a ‘declared service’. The effect of declaration is that certain telecommunications carriers (and carriage service providers) who provide such declared services are required to comply with ‘standard access obligations’ in relation to those services. In other words, they may be required to provide access to other entities in certain circumstances.
The Telstra and FOXTEL parties challenged the validity of the two declarations. It was said, among other things, that the 1997 Deeming Statement was uncertain and failed to specify the required service, and wrongly included certain optional adjunct services in the specification. It was said that the declaration power under the TPA could not be exercised while the 1997 declaration was in existence, and that this had not been revoked. It was also argued that the ACCC made errors of law in coming to its decision to declare the services, including taking into account irrelevant considerations, not taking into account relevant considerations, making findings for which no evidence existed, and otherwise not considered matters relating to existing state of competition in markets, etc.
The trial judge (Justice Wilcox) held that the 1997 Deeming Statement was invalid in certain respects, because it included elements that could not be considered ‘necessary’ to the relevant broadcast system, a requirement of the legislative provisions. However, he held that the invalid parts could be severed to leave a valid instrument; he dismissed the challenges to the validity of the 1999 Declaration, saying that the ACCC had not committed any reviewable error of law in reaching the decision that declaration of the services would be likely to promote the objective of competition in the retail pay TV market.
There were various cross appeals brought in addition to appeals from Justice Wilcox’s orders. In a joint judgment, the Full Court has held that the 1997 Statement was invalid and could not be saved by severing invalid portions; but that did this not affect the validity of the 1999 Declaration; and that no error of law had been shown in the trial judge’s decision to dismiss the challenges to the 1999 Declaration.
