Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Limited v Australian Competition Tribunal [2009] FCAFC 23

ADMINISTRATIVE LAW – judicial review of decision of the Australian Competition Tribunal – true construction of Part XIC of the Trade Practices Act 1974 (Cth) – errors of law and jurisdictional error committed by the Tribunal when reviewing a decision of the Australian Competition and Consumer Commission to grant exemptions in favour of the applicant from the requirement to afford access to declared telecommunications services – decision of the Tribunal set aside and remitted to the Tribunal for further consideration and determination according to law. TRADE PRACTICES – statutory interpretation – Part XIC of the Trade Practices Act 1974 (Cth) – telecommunications access regime and exemption from access obligations – interpretation of ss 152AB, 152AT and 152ATA – decision-maker obliged to consider all three objectives set out in s 152AB(2)(c) to (e) in determining whether a particular thing will promote the long-term interests of end-users of listed services – the long-term interests of end-users of listed services is the sole object of Part XIC – upon the true construction of s 152AT(4), the only matter calling for consideration is whether the decision-maker is satisfied that the making of the exemption order will promote the long term-interests of end-users of listed services – no residual discretion afforded to the relevant decision-maker under s 152AT(4) – objective set out in s 152AB(2)(c), being the objective of promoting competition in markets for listed services, does not authorise as a mandatory matter the imposition of an evidentiary test which requires the tender of empirical evidence as to the present state of competition in the relevant markets – the promotion of competition in s 152AB(c) is to be assessed by having regard to traditional concepts – decision-maker, when considering an application for exemption under s 152AT, obliged to consider whether the imposition of conditions or limitations pursuant to s 152AT(5) enable it to be satisfied that the exemption will promote the long-term interests of end-users of listed services – the Tribunal has no power to review decisions made by the ACCC pursuant to ss 152AL, 152AS and 152ASA. Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 16 Federal Court of Australia Act 1976 (Cth) s 32 Judiciary Act 1903 (Cth) s 39B Telecommunications Act 1997 (Cth) s 56 Trade Practices Act 1974 (Cth) Part IV, Part XIB (Division 2) and Part XIC; ss 2, 152AB, 152AC, 152AH, 152AL, 152 ALA, 152AR, 152AS, 152ASA, 152AT, 152ATA, 152AU, 152AV, 152AW, 152AY, 152BB, 152BBAA, 152BBC, 151BU and 163A Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 cited Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 applied Linett v McIntyre (2002) 117 FCR 189 applied Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 applied Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 219 ALR 27 applied Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Co Ltd (1989) 167 CLR 177 applied Re Queensland Co-operative Milling Association Ltd (1976) 25 FLR 169 applied Re Review of Declaration of Freight Handling Services at Sydney International Airport (2000) ATPR 41-754 cited Re Seven Network Ltd (No 2) (2004) 187 FLR 373 applied Re Sydney Airports Corporations Ltd (2000) 156 FLR 10 distinguished Sydney Airport Corporation Ltd v Australian Competition Tribunal and Others (2006) 155 FCR 124 distinguished Telstra Corp Ltd v ACCC [2008] FCA 1758 applied TELSTRA CORPORATION LIMITED (ACN 051 775 556) v AUSTRALIAN COMPETITION TRIBUNAL, CHIME COMMUNICATIONS PTY LIMITED (ACN 073 119 285), AAPT LIMITED (ACN 052 082 416), AGILE PTY LTD (ACN 080 855 321), MACQUARIE TELECOM PTY LIMITED (ACN 082 930 916), POWERTEL LIMITED (ACN 001 760 103), PRIMUS TELECOMMUNICATIONS PTY LIMITED (ACN 071 191 396) and AUSTRALIAN COMPETITION AND CONSUMER COMMISSION