Telstra Corporation v Hurstville City Council [2000] FCA 1887

FEDERAL COURT OF AUSTRALIA

Telstra Corporation Ltd v

Hurstville City Council [2000] FCA 1887

CONSTITUTIONAL LAW - local government charges and rates imposed on broadband cables owned by telecommunication carriers - validity of enabling State legislation - whether charges and rates are duties of excise - whether the imposts are "taxes" - whether they are a levy on "goods" - Commonwealth statutory provision that law of a State has no effect "to the extent to which the law discriminates or would have the effect of discriminating" against telecommunication carriers - whether this provision is effective to exclude State laws authorising imposition of rates and charges - validity of provision - role of explanatory memorandum for Bill - meaning of "discriminates" - whether the State laws discriminate - whether Commonwealth provision effects an acquisition of property other than on just terms. TELECOMMUNICATIONS - Carriers' cables installed pursuant to 1991 Telecommunications Act - Extent of immunity to State law provided by transitional provisions in 1997 Act - Whether State laws authorising imposition of rates and charges are laws relating to the occupancy or use of a facility whose construction was authorised under the 1991 Act. PRACTICE AND PROCEDURE - Jurisdiction of Federal Court to determine State law administrative issues. ADMINISTRATIVE LAW - Decisions to make charges and declare rates - whether decisions invalidated by extraneous purposes. Mutual Pools & Staff Pty Limited v Federal Commissioner of Taxation (1992) 173 CLR 450 and Adams v Rau (1931) 46 CLR 572 applied. Hematite Petroleum Pty Limited v Victoria (1983) 151 CLR 599 and Capital Duplicators Pty Limited v Australian Capital Territory [No.2] (1993) 178 CLR 561 distinguished. ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (1990) 27 FCR 460 referred to. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 considered. Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 and Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453 distinguished. Western Australia v The Commonwealth (1995) 183 CLR 373, and Mabo v Queensland [No.1] (1988) 166 CLR 186 discussed. Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491 referred to. Constitution - ss51(v) and (xxxi), 90, 109 Telecommunications Act 1997 (Cth) s591, Schedule 3 cll. 44, 60 Local Government Act 1989 (Vic) Part 8 Local Government Act 1993 (NSW) s611 Telecommunications Act 1991 (Cth) s116 Telecommunications (Exempt Activities) Regulations 1991- regs 5, 6 Acts Interpretation Act 1901 (Cth) s15AB Land and Environment Court Act 1979 (NSW) ss16, 19, 20, 58, 71 - 2 -