Axicom Inbuilding Solutions Pty Ltd v Australian Communications and Media Authority [2023] FCA 1069

Federal Court of Australia Axicom Inbuilding Solutions Pty Ltd v Australian Communications and Media Authority [2023] FCA 1069 File number(s): NSD 1171 of 2021

Judgment of: PERRY J

Date of judgment: 8 September 2023

Catchwords: STATUTORY INTERPRETATION – judicial review of assessment of a "participating person's eligible revenue for an eligible revenue period" under the Telecommunications Act and Telecommunications (Eligible Revenue) Determination (ER Determination) – where assessment of eligible revenue of the participating person included revenue of related entity – question as to whether "decisions" made at different stages in the process of decision-making are separate "decisions" as defined in s 3(1) of the Administrative Decisions (Judicial Review) Act – construction of revenue "earned from an activity outside the telecommunications industry" under s 9(1) of the ER Determination – consideration of ordinary meaning and statutory meaning in the Telecommunications Act of the term "telecommunications industry" – construction of term "facility" – whether revenue earned from providing infrastructure to carriers for the deployment of communications services throughout Australia is revenue earned from an activity outside the telecommunications industry – whether purpose-built wireless communication sites are a facility for the purposes of the Telecommunications Act ADMINISTRATIVE LAW – where no statutory requirement to give reasons – whether it should be inferred from the failure to refer to a consideration in reasons given in correspondence that the consideration was not considered ADMINISTRATIVE LAW – exercise of discretion under s 9(2) of the Determination – principles concerning implied limitations on statutory discretions – whether decision-maker had adopted a policy that was inconsistent with the statute – whether tax avoidance is a mandatory relevant consideration in the exercise of the discretion – where purpose of discretion in s 9(2) is to clarify ambiguous legal terms – no error in reasoning ADMINISTRATIVE LAW – exercise of broad discretion under s 33 of the Determination – whether implied relevant considerations condition the exercise of discretion – where respondent expressly considered, but gave no weight to, submissions put by applicant – whether decision-maker could make reference to applicant's competitors – where there was no requirement to give reasons