Federal Court of Australia

Australian Competition and Consumer Commission v Telstra Limited (No 2) [2025] FCA 1220

ORDERS

THE COURT NOTES THAT:

The respondent has provided an undertaking to the applicant pursuant to s 87B of the Competition and Consumer Act 2010 (Cth), which concerns efforts to which it will go to rectify the impact of some of the conduct in which it has been found to have engaged in contravention of ss 18 and 29(1)(g) of the Australian Consumer Law.

THE COURT ORDERS THAT:

1.    Within 30 days of the date of this order, the respondent pay to the Commonwealth of Australia a pecuniary penalty in the amount of $18,000,000.00.

2.    The respondent pay the applicant’s costs of and incidental to the proceeding in the agreed sum of $300,000.

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

REASONS FOR JUDGMENT

SNADEN J:

1    By a further amended originating application dated 11 April 2024, the applicant (the “ACCC”) moves the court for relief concerning certain conduct of the respondent’s, which it alleges was engaged in in contravention of various provisions of the Australian Consumer Law (the “ACL”). In the usual way, the matter was bifurcated as between liability and relief; and, following a hearing last year to establish whether (or the extent to which) the respondent had engaged in the conduct of which it stood accused, the court resolved the first part of that equation: Australian Competition and Consumer Commission v Telstra Limited [2025] FCA 93 (the “Liability Judgment”; Snaden J). In short (and subject to a minor exception), the court there accepted that the respondent had engaged in conduct in contravention of two provisions of the ACL.

2    Thereafter, the matter was scheduled for further hearing to determine what (if any) relief the court should grant in light of its conclusions in the Liability Judgment. The parties reached an accord concerning that question, in consequence of which they have submitted to the court joint proposed orders, a statement of agreed facts and a joint outline of submissions. By their accord, it is proposed that the court should grant declaratory relief consistent with the findings that are outlined in the Liability Judgement, should impose upon the respondent a pecuniary penalty of or pecuniary penalties totalling $18 million dollars and should award to the ACCC its costs in the sum of $300,000.00. These reasons concern the appropriateness of those proposed orders.

3    It is unnecessary that I should rehearse in any detail the nature of the contraventions in which, by the Liability Judgment, I accepted that the respondent had engaged. They are amply described in the reasons that were published in support of that judgment. Similarly, I consider that little is to be gained by here summarising the evidence that is contained within the statement of agreed facts that has been prepared in the present (relief) context. The parties are aligned both as to what they are and what the court should make of them—and repetition of those matters now would be a waste of limited resources. It is, of course, to be understood that the court has received the statement of agreed facts into evidence and it is liable to public inspection should that need arise.

4    With one exception, it is also unnecessary that I should rehearse in detail the nature of the submissions that were jointly advanced in support of the orders that are proposed. They, too, are open to be inspected upon request; and it suffices, instead, to note that they present as a comprehensive statement of relevant legal principle, by which the court has been ably assisted.

5    Plainly (as the submissions were advanced jointly), there is no dispute about the principles that are apt to guide the exercise of the court’s discretion to grant the relief that it considers appropriate. By these reasons—which I intend, for obvious reasons, to keep short—I shall separate my consideration across the three species of relief that the parties propose, namely declaratory relief, the imposition of pecuniary penalties and costs.

6    I shall address the question of declaratory relief first, as it is the only aspect of the joint submissions that I do not wholly accept. The parties propose that the court should grant declaratory relief—that is to say, should record in the form of binding declarations of right—the findings that have already been made as to the respondent’s liability under the ACL. It has been said that doing so is not an appropriate deployment of the remedy: Warramunda Village Inc v Pryde (2001) 105 FCR 437, 440 [8] (Gray, Branson and North JJ); Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, 388 [35] (Greenwood, Logan and Yates JJ).

7    That notwithstanding, it must be acknowledged that this court regularly does precisely that, particularly (indeed almost always) in matters brought at the suit of statutory regulators. The court was alerted to the observations of Dowsett, Greenwood and Wigney JJ in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 254 FCR 68, 87 [93], where it was said:

Declarations in relation to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the regulator’s claim that the respondent contravened the provisions, assist the regulator to carry out its duties, and deter other persons from contravening the provisions.

8    Other authorities have held to similar effect: see Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 (Snaden J), and the authorities referred to at [91]-[97] therein; see also Productivity Partners Pty v Australian Competition and Consumer Commission (2023) 297 FCR 180, 294 [373] (Wigney and O’Bryan JJ). Consistently with that reality, the parties jointly submit that the binding declarations of right that they urge upon the court presently are:

…desirable and appropriate because they will record the Court’s disapproval of the conduct, vindicate the concerns of consumers, assist the ACCC in carrying out the duties conferred on it by the [Competition and Consumer Act 2010 (Cth)], and make clear to other would-be contravenors that such conduct is unlawful.

9    Respectfully, I am unable to accept any of those constituent propositions. The binding declarations of right that have been proposed in this case say nothing about the court’s disapproval of the respondent’s unlawful conduct; and certainly nothing that won’t be said much more effectively via the imposition of the significant pecuniary penalty to which I shall shortly turn. There is no evidence about the concerns of customers (excepting, perhaps, the limited evidence of some complaints that were made to the respondent after it effected the speed-tier switch, referred to in the Liability Judgment). Nor is there any real explanation as to how the declarations that are proposed might vindicate any such concerns (at all, let alone in some way additional to what might be realised by the imposition of pecuniary penalties). I am unable to see how (and there is no evidence before me that credibly suggests that) the important work of the ACCC might be assisted by my recording in declaratory form the factual and legal conclusions that I have already recorded in the reasons that accompanied the Liability Judgment. Perhaps most significantly, there is no evidential basis upon which it might realistically be thought that anybody might, by the making of binding declarations of right, be more dissuaded from emulating the respondent’s conduct than they would in any event be as a result of the significant pecuniary penalty that I intend to impose. There is simply no reason to think that declaratory relief in this matter will visit any practical consequence for anybody, nor realise utility (marginal or otherwise) in any identifiable form. In the circumstances of this matter, I consider that binding declarations of right would be “totally pointless”: Australian Competition and Consumer Commission v Francis (2004) 142 FCR 1, 36 [110] (Gray J).

10    Accepting, as I do, the points of principle that emerge from the authorities about the circumstances in which declaratory relief might generally be appropriate in matters such as this one, the circumstances as they present specifically in this matter do not warrant an exercise of the court’s discretion to award declaratory relief. That being so, I am not minded to make the binding declarations of right that have been proposed.

11    I turn, then, to the much more significant issue of pecuniary penalties. The principles that regulate the imposition of pecuniary penalties—and, in particular, agreed pecuniary penalties—are notorious and well-settled, and I needn’t rehearse them now. Precisely for the reasons that the parties have helpfully articulated in their joint submissions, I have no hesitation in accepting that the penalty (or total penalty) that is proposed in this matter is within the window of what the court would reasonably be minded to impose independently of any agreement.

12    In saying so, I have taken account of the following matters (all of which are addressed in the joint submissions), namely:

(1)    the nature and extent of the respondent’s conduct (as outlined in the Liability Judgment), in the different forms in which it was found to have been engaged in contravention of provisions of the ACL;

(2)    the circumstances that led to that conduct;

(3)    the number of the respondent’s customers who were affected by it and the period or periods over which those effects continued;

(4)    the deliberateness of the respondent’s contravening conduct;

(5)    the respondent’s motivations in engaging in the relevant conduct and the benefits that it sought to secure by doing so;

(6)    the personnel of the respondent’s who were involved in the relevant conduct;

(7)    the remedial steps that the respondent has taken in respect of its conduct and those that it has committed to taking beyond the determination of this matter;

(8)    the measures that the respondent now has in place to guard against similar conduct into the future;

(9)    the respondent’s size and means;

(10)    the respondent’s history of compliance (or otherwise) with the Australian Consumer Law;

(11)    the respondent’s having self-reported part of the relevant conduct to the ACCC and its having, at least to some degree, cooperated with the regulator thereafter;

(12)    the degree of contrition that reflects in the respondent’s post-contravention conduct;

(13)    the maximum amount that the court is empowered to impose by way of pecuniary penalties for each of the respondent’s statutory contraventions; and

(14)    the total number of contraventions that the respondent’s conduct bespeaks, the course or courses of conduct out of which it should be understood to have emerged, and the need to impose penalties that are sensitive to those realities and to the totality of the respondent’s wrongdoing.

13    By their joint submissions, the parties observed (citations omitted):

Given the large number of contraventions, the theoretical maximum penalty would be so great, and exceed the amount necessary for deterrence in this matter, that it does not serve as a useful numerical benchmark. However, the Court may have regard to other numerical benchmarks to test the parties’ submission that the proposed penalty of $18 million strikes an appropriate balance between achieving deterrence and avoiding oppression. A penalty of $18 million represents approximately $2,000 for each affected customer in respect of whom Telstra anticipated savings of $7 per month from the Speed Tier Switch. The total remediation that Telstra has or will pay to customers is additional to the penalty and exceeds $2.3 million.

14    With that high-level analysis—no more than which is called for in the circumstances—complete, I repeat an observation made earlier: I have no hesitation in accepting that the total amount that the parties jointly propose by way of pecuniary penalty is within what can properly be described as appropriate and should, for that reason, be endorsed: Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission (2021) 284 FCR 24, 44-5 [125]-[129] (Wigney, Beach and O’Bryan JJ).

15    The amount that the parties advance as an appropriate award of costs—$300,000.00—is in the same category. It too, should and will be made in the terms that the parties propose.

Associate:

Dated:    3 October 2025