AUSTRALIAN COMPETITION TRIBUNAL Telstra Corporation Ltd [2001] ACompT 4 Trade Practices – Telecommunications access regime – access dispute – whether the Australian Competition and Consumer Commission and the Australian Competition Tribunal have power to make a determination with retrospective operation when arbitrating an access dispute. Trade Practices Act 1974 (Cth) – Part XIC TELSTRA CORPORATION LTD – File No 1 of 2000 JUSTICE von DOUSSA, MR R C DAVEY, PROFESSOR R C DUNCAN MELBOURNE 7 DECEMBER 2001 IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 1 of 2000 RE: APPLICATION FOR REVIEW OF A FINAL DETERMINATION BY THE ACCC DATED 11 SEPTEMBER 2000 IN RESPECT OF AN ACCESS DISPUTE BETWEEN AAPT LIMITED AND TELSTRA CORPORATION LIMITED BY: TELSTRA CORPORATION LTD (ACN 051 755 556) APPLICANT TRIBUNAL: JUSTICE von DOUSSA (PRESIDENT) MR R C DAVEY PROFESSOR R C DUNCAN DATE OF RULING: 30 NOVEMBER 2001 DATE OF PUBLICATION OF REASONS FOR RULING 7 DECEMBER 2001 WHERE MADE: MELBOURNE THE TRIBUNAL RULES THAT: 1. When carrying out the present review of the determination of the Australian Competition and Consumer Commission, the Tribunal has power to determine a price for the supply of the declared PSTN services supplied by Telstra Corporation Ltd to AAPT Ltd during the period 1 July 1998 to 4 July 1999. IN THE AUSTRALIAN COMPETITION TRIBUNAL File No 1 of 2000 RE: APPLICATION FOR REVIEW OF A FINAL DETERMINATION BY THE ACCC DATED 11 SEPTEMBER 2000 IN RESPECT OF AN ACCESS DISPUTE BETWEEN AAPT LIMITED AND TELSTRA CORPORATION LIMITED BY: TELSTRA CORPORATION LTD (ACN 051 755 556) APPLICANT TRIBUNAL: JUSTICE von DOUSSA (PRESIDENT) MR R C DAVEY PROFESSOR R C DUNCAN DATE: 7 DECEMBER 2001 REASONS FOR RULING THE TRIBUNAL: 1 On 30 November 2001 the Tribunal ruled that it had power to back date a determination fixing a price for the supply of declared telecommunication services during a period before the commencement of Item 74 of Schedule 1 of the Telecommunications Legislation Amendment Act 1999 (Cth) on 5 July 1999. The Tribunal now publishes reasons for the ruling. 2 Section 152CZ of the Trade Practices Act 1974 (Cth) (the Act) provides that an arbitration hearing of an access dispute under Part XIC of the Act is to be conducted in private unless the parties otherwise agree (which they have not in the present case). The requirement is to protect commercial confidentiality. The section does not expressly state whether reasons for a determination by the Australian Competition and Consumer Commission (the Commission) or by this Tribunal are to be published only to the parties to the arbitration, but insofar as the determination and reasons for it deal with material that is confidential, such a restriction is to be implied. This ruling, however, turns on the proper construction of the applicable legislation, and does not discuss material that is commercially sensitive. In our opinion s 152CZ does not prevent the publication of these reasons. In the first instance, however, we shall make these reasons available only to the parties. If no party notifies the registrar of the Tribunal within fourteen days of publication that it desires to argue that these reasons not be published generally, the reasons for the ruling will be released for public distribution. 3 This application has been brought by Telstra Corporation Ltd (Telstra) under s 152DO of the Act seeking review of a determination made by the Commission on an access dispute between Telstra and AAPT Ltd (AAPT). The Commission's determination is dated 11 September 2000. The determination fixed prices payable by AAPT to Telstra for Telstra's PSTN originating and terminating access services for the period from 5 July 1999 to 30 June 2000. 4 In its applications for review, Telstra seeks to have the prices fixed by the Commission's determination for the period from 5 July 1999 to 30 June 2000 re-arbitrated (see s 152DO(3)). AAPT contends that the Tribunal has power on the re-arbitration to determine prices payable by it for PSTN services supplied before 5 July 1999. Telstra contends that the Tribunal does not have this power. At the request of the parties, the Tribunal agreed to rule on this question of power as a preliminary issue. 5 Telstra and AAPT are each licensed telecommunication carriers under the Telecommunications Act 1997. For the purposes of providing a number of telecommunication services, AAPT acquires from Telstra the services of originating and terminating access services for telecommunication services utilising Telstra's "public switch telephone network" (PSTN). 6 The determination under review was made by the Commission under Part XIC of the Act. Part XIC, comprising ss 152AA – 152EP, was first enacted by the Trade Practices Amendment (Telecommunications) Act 1997. Part XIC introduced an access regime for the deregulated telecommunications industry which came into effect on 1 July 1997, although the machinery provisions of Part XIC came into operation on the date of the Royal Assent on 30 April 1997: see s 2 of the Trade Practices Amendment (Telecommunications) Act 1997. 7 Section 152AA of the Act sets out a simplified outline of the access regime. The regime provides for the declaration of carriage services by the Commission. Once declared, standard access obligations apply to carriers and carriage service providers who supply declared services unless those persons are otherwise exempted: s 152AR. Standard access obligations require the supply of declared services in order that service providers can supply their own carriage services. A carrier or carriage service provider is obliged to comply with standard access obligations in accordance with s 152AY. That section provides that standard access obligations are subject to commercial agreement, or failing agreement, must be complied with on terms and conditions set out in an access undertaking insofar as it specifies terms and conditions about a particular matter. Division 5 of Part XIC (ss 152BS – 152CB) makes provision for access undertakings. In the absence of a relevant access undertaking, standard access obligations must be complied with on such terms and conditions as are determined by the Commission under Div 8 of Part XIC: s 152AY(2)(b)(iii). 8 Section 152CM makes provision for the notification of an access dispute by an access seeker as defined in s 152AG or by the carrier or provider. Section 152CM(5) gives examples of things on which an access seeker and a carrier or provider might disagree. One of those examples identifies the price or method of ascertaining the price at which access is to be provided. Where an access dispute is notified, the Commission must make a written determination on access: s 152CP(1). In doing so the Commission acts as an arbitrator: s 152AA, and is to conduct the arbitration in accordance with the procedure set out in Sub-div D of Div 8 (ss 152CV – 152DM). 9 Sub-division E of Div 8 (ss 152DN and 152DNA) deals with the operation of determinations. It will be necessary to return to these provisions as they are central to the issue under consideration. 10 Sub-division F of Div 8 (ss 152DO – 152DS) provides for the review of determinations by this Tribunal, with a right of appeal on a question of law from the decision of the Tribunal to the Federal Court. 11 PSTN originating and terminating services were deemed to be declared services under transitional legislation enacted concurrently with Part XIC of the Act from the commencement of the access regime which came into operation on 1 July 1997. That deeming occurred by the publication on 30 June 1997 of a statement that PSTN services were eligible services under s 39 of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 (Cth). 12 When the new access regime came into operation on 1 July 1997 Telstra and AAPT were unable to agree on prices payable by AAPT for the PSTN service. AAPT gave notice to the Commission of an access dispute. That dispute was compromised, and Telstra and AAPT entered into heads of agreement dated 5 December 1997 governing the period to 30 June 1998. Clauses 10 and 11 of the heads of agreement relevantly provided: "10. Negotiations in respect of a new agreement pertaining to the period commencing 1 July 1998 will commence no later than 1 March 1998. 11. Should a new agreement for the period from 1 July 1998 not be concluded by 30 June 1998, the terms and conditions of this agreement will continue until the new agreement is finalised. The terms and conditions of the new agreement will be backdated to 1 July 1998." 13 Negotiations between AAPT and Telstra failed to result in an agreement governing the period from 1 July 1998. By letter dated 11 December 1998 AAPT notified the Commission of an access dispute with Telstra about the price of access to the services as and from 1 July 1998. During the course of the arbitration of the dispute, AAPT made submissions to the Commission that it should address the price of access to the declared services for the entire period the subject of the notified dispute, which included the period from 1 July 1998 to 5 July 1999. 14 The Commission held that it lacked power to determine terms and conditions for access prior to 5 July 1999. It did so because of provisions introduced into Part XIC by the Telecommunications Legislation Amendment Act 1999 which came into force on 5 July 1999, i.e. after the access dispute had been notified, but before it was determined by the Commission. Amongst many amendments to Part XIC the Telecommunications Legislation Amendment Act 1999 repealed the former s 152DN and substituted the present ss 152DN, 152DNA and 152DNB. Section 152DNA(1) now provides: "Any of all of the provisions of a final determination may be expressed to have taken effect on a specified date that is earlier than the date on which the determination took effect." The Telecommunications Legislation Amendment Act 1999 contains a number of transitional provisions in Items 72 – 77 of Schedule 1. Item 74 provides: "Transitional – backdating of final determinations A final determination made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 has no effect to the extent (if any) to which any provision of the determination is expressed to have taken effect on a date earlier than the date of commencement of this item." 15 By its terms, Item 74 would appear to deny the Commission power to make a determination containing any provision expressed to have effect on a date earlier than the commencement date of that item. The Commission in its determinations so interpreted and applied Item 74. 16 Both parties filed written submissions before this Tribunal on the question of the Tribunal's power to backdate the operation of a determination, and the Tribunal listed the question for oral argument on 17 October 2001. 17 Telstra contended that the Commission was correct in its interpretation of Item 74, and that for like reason this Tribunal lacks power to make a determination which operates in relation to a period before 5 July 1999. AAPT advanced a number of arguments which, whilst assuming that Item 74 has application in respect of that part of the access dispute which concerns price before 5 July 1999, contend that the Commission, and in turn the Tribunal, nevertheless has power to make a determination for the earlier period. 18 AAPT's arguments included that: · Section 152DN(1), following the 1999 amendments, provides that a final determination by the Commission "has effect" 21 days after the determination is made, and under s 152DO(8) a decision of the Tribunal "takes effect" from when it is made. AAPT argued that, a judgment of a court takes effect or has effect from the day when it is made, but usually has a retrospective operation in that it decides the rights of the parties in respect of an earlier period of time. In the same way, it is argued, whilst a decision of the Tribunal has effect from when it is made, that is not a proscription against the determination of terms and conditions for access granted earlier in point of time. · If the whole of the notified dispute is determined by the Tribunal on review of the Commission's final determination, the prices or pricing principles so determined become enforceable between Telstra and AAPT by operation of the 1997 heads of agreement. · The Commission and the Tribunal are required by s 152CR(1)(b) and (c) to take into account the legitimate business interests of the carrier and the interests of all persons who have rights to use the declared service. AAPT contended that the legitimate business interests of the carrier and the access seeker include contractual arrangements between the parties to the notified dispute. When read with s 152CP(2) which provides that the determination may deal with any matter relating to access, including matters that were not the basis for notification of the dispute, it follows that the Tribunal must have power to make a determination which covers the entire period of the notified dispute. · Section 152CT empowers the Commission (and the Tribunal) to give a party a written procedural direction requiring that party to do, or refrain from doing, a specified act or thing relating to the conduct of those negotiations. AAPT argued that even if the Tribunal had no power to make a determination of price insofar as it relates to the period prior to 5 July 1999, the Tribunal would have power under s 152CT to require Telstra to apply the model and principles identified by the Tribunal in these proceedings to that earlier period and to negotiate with AAPT in relation to the price to be fixed by agreement in accordance with clause 11 of the heads of agreement. 19 The submissions of both parties assumed that the power of the Tribunal in relation to the period before 5 July 1999 was to be ascertained from the provisions of Part XIC as amended in 1999. The Tribunal indicated that if this assumption were correct, it saw difficulties with the several arguments advanced by AAPT. However the Tribunal suggested that the power of the Tribunal in respect of the period before 5 July 1999 could arise under the former provisions of Part XIC if the operation of those provisions were, in the circumstances of this case, preserved by ss 8 and 8A of the Acts Interpretation Act 1901 (Cth). Sections 8 and 8A of that Act relevantly provide: "8. Effect of repeal Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or … (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed. 8A. Implied repeals etc. A reference in section 7 or 8 to the repeal of an Act or of a part of an Act includes a reference to: (a) a repeal effected by implication; (b) the abrogation or limitation of the effect of the Act or part; and (c) the exclusion of the application of the Act or part to any person, subject-matter or circumstance." 20 The matter was adjourned to 30 November 2001 to enable the parties to consider whether ss 8 and 8A of the Acts Interpretation Act 1901 had application. 21 On the resumed hearing the Tribunal had the benefit of further written and oral submissions. Telstra contended that prior to the 1999 amendments, Part XIC of the Act did not empower the Commission or the Tribunal to make a determination having retrospective effect. The power was limited to making a determination with prospective effect. It was argued that specific language like that used in s 152DNA(1) introduced in 1999 was necessary to bestow a power to backdate the operation of a determination. Before the amendment, the former s 152DN did not contain language to that effect. Further, and in any event, for three reasons Telstra argued that ss 8 and 8A of the Acts Interpretation Act 1901 had no operation. First, Telstra contended that the 1999 amendments expressed a "contrary intention" because the amendments were intended to modify the pre-existing regime to require that unresolved disputes under the earlier regime were to be determined under the new regime. Secondly, the 1999 amendments were not properly to be characterised as having "repealed in the whole or in part a former Act". Thirdly, by giving the notification of an access dispute on 11 December 1998, AAPT did not acquire any substantive right on which the provisions of the Acts Interpretation Act 1901 could operate. 22 AAPT argued to the contrary that it acquired a substantive right on giving notice of an access dispute to have that dispute determined by arbitration so that a price was fixed for the supply of the declared service from 1 July 1998; that under the earlier provisions of Part XIC the Commission and the Tribunal were empowered, and required, to determine that dispute by making a determination that had retrospective effect so as to cover the whole period of the dispute; and that the 1999 amendments were not intended to remove the right to that remedy. 23 In our opinion, the submissions of AAPT based on the application of the Acts Interpretation Act 1901 are correct. 24 We first consider the power of the Commission and the Tribunal under the former provisions of Part XIC to make a determination with retrospective effect. In its original terms s 152DN provided: "Operation of determinations 152DN (1) If none of the parties to the arbitration applies to the Tribunal under section 152DO for a review of the Commission's determination, the determination has effect 21 days after the determination is made. (2) If a party to an arbitration applies to the Tribunal under section 152DO for a review of the Commission's determination, the determination is of no effect until the Tribunal makes its determination on the review." 25 Telstra contended that this section should be construed to mean that a determination operates only prospectively. We do not accept this construction. If it were correct, it would leave a gaping hole in the access regime described in s 152AA, as Part XIC would provide no mechanism for determining terms and conditions for the supply of a declared service during the period of an unresolved access dispute. Moreover it would allow a party dissatisfied with access terms and conditions arbitrated by the Commission to delay the operation of the determination, perhaps for a considerable period, by the simple step of applying to the Tribunal for a review of the Commission's determination. 26 The objects of the telecommunications access regime set out in s 152AA include the object that: "If agreement cannot be reached, but no access undertaking is in operation, the terms and conditions are to be determined by the Commission acting as an arbitrator." Section 152CP requires the Commission to make a written determination. Section 152CP(2) provides that the determination may deal with any matter relating to access by the access seeker to the declared service including matters that were not the basis for notification of the dispute. This indicates a wide power to decide all contentious matters between the parties relating to access. 27 Generally speaking, an arbitration to determine a pre-existing dispute will be an exercise intended to fix terms and conditions to operate over the period in dispute. In the absence of any express provision in the former Part XIC to indicate that the power of the Commission or Tribunal to backdate the operation of a determination to the commencement of an access dispute notified under s 152CM, we consider that the former s 152DN should be understood as referring to the time when a determination comes into force and becomes legally binding on the parties, and not as a restriction on power to determine terms and conditions to operate retrospectively over the period of the dispute once the determination is in force. 28 If the determination could not operate retrospectively, the arbitration process would fail to meet the object of the access regime under which the Commission is to determine the terms and conditions for access when they cannot be agreed. We consider s 152AY(2)(b)(iii) intends that terms and conditions determined by the Commission acting as arbitrator will apply during the period when a declared service is supplied where terms and conditions are not either agreed or otherwise fixed by one of the ways described in s 152AY(2)(b)(i) or (ii). 29 Section 152CP(2)(f) provides a further indication that the power of the Commission extends to making a determination with retrospective effect in that a determination may: "Specify the extent to which the determination overrides an earlier determination relating to access to the declared service by the access seeker." 30 Interestingly, s 152CP(6) provided (and still provides) that: "A determination does not take effect before 1 July 1997." 1 July 1997 was the day when the Telecommunications Industry became deregulated and the new access regime came into force. We think that the enactment of s 152CP(6) was premised on an assumption that the Commission under Part XIC would have power to determine disputes over access which arose before 1 July 1997, and would have power to arbitrate terms and conditions including price relating to periods before 1 July 1997. Under the regime that Part XIC was to replace, AUSTEL was empowered to arbitrate disputes over access under s 154 of the Telecommunications Act 1991. After the commencement of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1997 (Cth) on 3 May 1997, s 37 of that Act provided for the phasing out of arbitrations under s 154. Section 37 relevantly provided: "(1) This section applies to a matter submitted under section 154 of the Telecommunications Act 1991 to AUSTEL for arbitration (whether submitted before or after the commencement of this section). (2) If AUSTEL is satisfied that a matter corresponding to the first mentioned matter would be the subject of a notification under section 152CM of the Trade Practices Act 1974, AUSTEL may terminate, or refuse to conduct, the arbitration." 31 If AUSTEL refused to continue an arbitration, the legislation contemplated that the determination of the existing dispute could be resolved under the new regime. For an arbitration by the Commission under Part XIC to have that effect, Parliament must have intended that the Commission have power to make a determination of terms and conditions of access with retrospective effect to cover the period of the dispute. Section 152CP(6) recognises that the machinery provisions of Part XIC of the Act were to come into force before 1 July 1997, and could be invoked by the parties wishing to position themselves for the new regime, but if an existing dispute became the subject of a determination by the Commission under Part XIC, the determination would not "take effect", i.e. have any legal consequence, until the new regime came into force. But once a determination took effect on or after 1 July 1997, the Act contemplated that the determination might impose terms and conditions creating rights and obligations in relation to the period of the dispute, even though the dispute had been notified to AUSTEL under s 154 of the Telecommunications Act 1991 before 3 May 1997. 32 The 1999 amendments repealed the former s 152DN and substituted the following new sections: "152DN. Operation of determinations (1) A final determination has effect 21 days after the determination is made. Stay of determination by the Tribunal (2) However, if a party to an arbitration applies to the Tribunal under section 152DO for a review of the Commission's final determination, the Tribunal may make any orders staying or otherwise affecting the operation or implementation of the final determination that the Tribunal thinks appropriate to secure the effectiveness of the review by the Tribunal. (3) If an order is in force under subsection (2) (including an order previously varied under this subsection), the Tribunal may make an order varying or revoking the first-mentioned order. (4) An order in force under subsection (2) (including an order previously varied under subsection (3)): (a) is subject to any conditions that are specified in the order; and (b) has effect until: (i) the end of any period for the operation of the order that is specified in the order; or (ii) the finalisation of the review; whichever is earlier. Interim determination to remain in force if final determination stayed (5) If: (a) an order is made under subsection (2) in connection with a final determination relating to an access dispute; and (b) an interim determination relating to the access dispute was in force immediately before the final determination took effect; the interim determination remains in force until: (c) the end of any period for the operation of the order that is specified in the order; or (d) the finalisation of the review; or (e) the revocation of the interim determination; whichever is earliest. Commission may make interim determination while final determination stayed (6) If: (a) an order is made under subsection (2) in connection with a final determination relating to an access dispute; and (b) no interim determination relating to the access dispute was in force immediately before the final determination took effect; this Part does not prevent the Commission from making an interim determination relating to the access dispute while the order is in force. Such an interim determination ceases to have effect: (c) at the end of any period for the operation of the order that is specified in the order; or (d) on the finalisation of the review; or (e) on the revocation of the interim determination; whichever is earliest. Duration of interim determination (7) Subsections (5) and (6) have effect despite anything in section 152CPA. When final determination takes effect (8) For the purposes of subsections (5) and (6), in determining the time when a final determination took effect, an order under subsection (2) is to be disregarded. 152DNA. Backdating of final determinations (1) Any or all of the provisions of a final determination may be expressed to have taken effect on a specified date that is earlier than the date on which the determination took effect. (2) The specified date must not be earlier than the date of notification of the access dispute concerned. (3) For the purposes of subsections 152CPA(9) AND 152DN(5) and (6), in determining the time when a final determination takes effect, a provision covered by subsection (1) of this section is to be disregarded. (4) A provision of a final determination may be expressed to cease to have effect on a specified date. (5) This section has effect despite anything in subsection 152DN(1). 152DNB. Stay of determinations … [not presently relevant]" 33 The 1999 amendments to Part XIC introduced a power in the Commission and the Tribunal to make interim determinations whilst an arbitration or review process proceeded towards a final determination. The new provisions of ss 152DN and 152DNA were incidental to that new power. Telstra's submissions relied heavily on statements in the Supplementary Explanatory Memorandum to the Telecommunications Amendment Bill 1998 as an aid to ascertaining Parliament's purpose and intention in enacting the 1999 amendments. Telstra contended that the Supplementary Explanatory Memorandum indicates that Parliament understood that Part XIC as it then stood did not allow a determination to have retrospective effect, and that the proposed amendments would introduce a new power to enable this to happen. Telstra contended that in accordance with the reasoning of Dixon J in Grain Elevators Board (Victoria) v The Shire of Dunmunkle (1946) 73 CLR 70 at 85 – 86 the Tribunal should take this statement of Parliament's understanding into account in construing the provisions of the earlier Part XIC. 34 In Grain Elevators Board (Victoria) v Dunmunkle Corporation Dixon J considered the relevant words of the statute before and after amendment. The case does not deal with a situation where an explanatory memorandum, as opposed to the words of amending legislation, indicate an understanding of the meaning of the earlier Act. In the present case the repeal of s 152DN and the substitution of the new sections were part of a raft of provisions that introduced the power to make an "interim determination" and a "final determination". The earlier power had merely been to make a "determination". Item 74 of the amending Act relates to "final determinations" being a new notion introduced by the amendments. Item 74 qualifies the power to backdate the effective operation of any or all of the provisions of a final determination. The 1999 amendments introduced new and different powers exercisable in the course of the arbitration process initiated by the notification of an access dispute under s 152CM. When the amended provisions are understood as introducing new powers and procedures, in our opinion, they do not indicate anything about the scope of the old powers and procedures, other than that they were different. They do not compel the construction of the former provisions for which Telstra contends. Even if the new provisions provide an indication in support of such a view, the countervailing consideration that such a construction would leave a gaping hole in the telecommunications access regime described in s 152AA dispels the suggestion. 35 The passages in the Supplementary Explanatory Memorandum relied upon by Telstra are at page 5: "In particular, the proposed Government Amendments: … · allow final access determinations to apply retrospectively from as early as the date the access dispute was notified (item 39B in Amendment (8) proposed section 152DNA of the TPA); · … · ensure that final access determinations will have effect only to the extent that provisions in the determinations are expressed to take effect on a date on or after the Bill receives Royal Assent (item 41B in Amendment A(9));" and at page 9: "In relation to Part XIC, fine-tuning amendments would include enabling the ACCC to make interim determinations and enable final determinations to apply retrospectively …" and at page 28: "To address these problems it is proposed: · to enable the ACCC, in relation to a dispute, to make an interim determination in relation to access (see item 36E, proposed section 152CPA); and · enable the ACCC in a final determination to provide for all or part of that determination to apply retrospectively from as early as the date the dispute was notified (see item 39B, proposed section 152DNA). Interim determinations are intended to encourage access providers to avoid disputes and, where disputes arise, to enable commercial operations to progress while a final determination is being prepared. Giving final determinations retrospectively is also intended to encourage commercial agreement and cooperation during access arbitrations by removing incentives for delay and to ensure a considered and reasonable outcome is ultimately applied to the interim period." and at page 33: "Requiring the ACCC to take into account the matters specified in sub-section 152CR(1) would be likely to slow considerably the issue of an interim determination, thus detracting from the utility of interim determination arrangements. The ACCC will be able to consider such matters if it chooses to but is not bound to. To the extent that consideration of these matters leads to a difference in relation to a matter between the ACCC's interim and final determinations and the ACCC considers these final provisions should apply in the period covered by the interim determination, it will be able to apply them retrospectively under the proposed provision enabling any or all provisions of final determinations to have retrospective effect (see proposed section 152DNA of item 39B)" and at pages 36 – 37: "Item 39B – Insertion of new section 152DNA of the TPA (Backdating of final determinations) Proposed section 152DNA will allow provisions of a final access determination to have retrospective operation. This is intended to encourage commercial agreement and cooperation during access arbitrations by removing incentives for delay and to ensure a considered and reasonable outcome is ultimately applied to the interim period which may otherwise be covered by an interim determination or a commercial agreement which one or more parties may be disputing …" and at page 38: "Item 41B is a transitional provision that will ensure that final access determinations will have effect only to the extent that provisions in the determinations are expressed to take effect on a date on or after the Bill receives Royal Assent; that is, provisions will not be able to be backdated before the commencement of section 152DNA …" "Proposed section 152DNA will have effect despite subsection 152DN(1), which provides for a final determination to have effect 21 days after the determination is made (proposed subsection 152DNA(5))" and at page 40: "Item 41B – Transitional – backdating of final determinations Item 41B is a transitional provision that will ensure that final access determinations will have effect only to the extent that provisions in the determinations are expressed to take effect on a date on or after the Bill receives Royal Assent. This will ensure, for reasons of fairness, that no backdating before the date of commencement occurs." 36 The new powers and procedures as described in the Supplementary Explanatory Memorandum enable the making of an interim determination. An interim determination is not automatically overtaken by a final determination in the sense that the final determination finally determines the rights and obligations of the parties during the period when the interim determination operated, such that necessary adjustments between the parties will then occur to remove monetary differences flowing from the interim award and the final award. Rather, under the amendments the interim determination continues to govern the rights and obligations of the parties unless the final determination states that all or any of the provisions of the final determination take effect on a specified date that is earlier than the date on which the determination takes effect. The intended inter-relationship between the operation of an interim determination and a final determination provides a reason for the express terms of s 152DNA. There was a need to indicate, as s 152DNA(1) impliedly does, that an interim determination may be the determination that continues to fix the rights and obligations of the parties during the period when the arbitration is underway, even after a final determination is made. Further, there was a need to indicate that the power to backdate the operation may be exercised in respect of all, or only some of the provisions of the award. 37 The Supplementary Explanatory Memorandum may sensibly be read as dealing with the proposed new powers and procedures and as explaining the inter-relationship of interim determinations with final determinations, and as saying nothing about the scope of the powers of the Commission and the Tribunal under the former provisions of Part XIC. We do not consider the Supplementary Explanatory Memorandum provides a sufficient reason for construing Part XIC as it stood before the 1999 amendments in the way contended for by Telstra. 38 We next consider whether AAPT acquired a right under the former Part XIC upon which the provisions of the Acts Interpretation Act could operate. 39 Upon giving notification of an access dispute on 11 December 1998 AAPT initiated the process leading to the grant of the statutory remedy of a determination by arbitration. By that process the Commission was required to determine the dispute (it not being suggested that the circumstances of this case could have justified the Commission terminating the arbitration under s 152CS). We consider AAPT acquired a "right" to that remedy within the meaning of s 8(c) and (e) of the Acts Interpretation Act. 40 Telstra contended that even if Part XIC before amendment empowered the Commission and Tribunal to make a determination with retrospective effect, AAPT did not acquire a right to a backdated determination as there was no inevitability that such a determination would be made. This submission confuses the possible outcome of the arbitration with the right to have an arbitration and determination relating to the totality of the dispute notified to the Commission. Whatever the outcome of the arbitration might have been, AAPT had acquired the right to the statutory remedy provided by Part XIC before the 1999 amendments. 41 Was Part XIC "repealed in the whole or in part" in a way that would affect the acquired right to the remedy, but for the operation of the Acts Interpretation Act? The 1999 amendment, by Item 66 of Sch 1 of the Telecommunications Legislation Amendment Act 1999 "repeal(ed)" the former s 152DN and "substitute(d)" the new ss 152DN, 152DNA and 152DNB. In terms, Item 66 affected a repeal. Section 152DNA(2) by its terms confines the power to backdate the operation of any or all of the provisions of a determination to the date of notification of the dispute. When this section is read with Item 74, the backdating power in s 152DNA(1) is further qualified in that no provision of a determination can take effect earlier than 5 July 1999. Apart from ss 8 and 8A of the Acts Interpretation Act the effect of s 152DNA(2) is to remove the power to make a determination that imposes an obligation to comply with the terms and conditions for the supply of a declared service for the duration of the dispute, in this case from 1 July 1998 to 11 December 1998. The effect of Item 74 is to remove the power of the Commission and the Tribunal to make a determination that imposes an obligation to comply with terms and conditions for the supply of a declared service over any period before 5 July 1999. In both respects the 1999 amendment would abrogate or limit the effect of the earlier Act, and accordingly under s 8A there is a repeal in part of the earlier Act for the purpose of s 8 of the Acts Interpretation Act. 42 The remaining question is whether the 1999 amendments evidence a "contrary intention". Telstra contended that the amendments "wiped out" earlier powers of the Commission and Tribunal, whatever they might have been, and "captured" all unresolved disputes. They rely in particular on Items 73, 74 and 75 in the amending Act. Item 74 is set out earlier in these reasons. Items 73 and 75 read: "73. Transitional – interim determinations An interim determination may be made in relation to an arbitration under Division 8 of Part XIC of the Trade Practices Act 1974, whether the access dispute was notified before, at or after the commencement of this item. 75. Transitional – pre-commencement competition notices (1) Despite the amendments made by items 6, 8, 11, 12, 14, 15, 16, 17, 18, 19, 21, 37, 41, 42 and 43 of this Schedule, Part XIB of the Trade Practices Act 1974 continues to apply, after the commencement of this item, in relation to a competition notice in force immediately before the commencement of this item, as if those amendments had not been made. (2) Subsection 151AOA(2) of the Trade Practices Act 1974 applies to a competition notice in force immediately before the commencement of this item in a corresponding way to the way in which it applies to a Part A competition notice." 43 Item 75 deals with amendments to Part XIB of the Act concerning competition notices and we do not think that the item helps Telstra's argument. Item 73 however clearly extends a new power, the power to make an interim determination, to unresolved disputes notified to the Commission before the commencement of that Item. However, we do not think that by extending this useful power to pre-existing unresolved disputes, Parliament is evidencing an intention to wipe out the acquired rights of parties who have notified access disputes before the commencement of the 1999 amendments. To do so would create the large gap in the telecommunications access regime earlier discussed. There is nothing in the Supplementary Explanatory Memorandum which indicates an intention to limit or remove the rights of parties in an access dispute already notified at the time when the amendments take effect. In our opinion no "contrary intention" is evidenced by the 1999 amendments. 44 In our opinion the earlier provisions of Part XIC continue to apply in respect of the access dispute which AAPT notified to the Commission on 11 December 1998. We consider that this Tribunal has power to determine a price for the supply of the declared service to AAPT for the period from 1 July 1998 to 4 July 1999 under those provisions. I certify that the preceding forty-four numbered paragraphs are a true copy of the Reasons for Ruling of the Tribunal. Associate: Dated: Counsel for Telstra Corporation: Mr A Archibald QC and Mr C Maxwell QC Solicitors for Telstra Corporation: Mallesons Stephen Jaques Counsel for AAPT Ltd: Mr D Shavin QC Solicitors for AAPT Ltd: Freehills Counsel for Australian Competition and Consumer Commission: Mr A I Tonking Date of Hearing: 30 November 2001 Date of Ruling: 30 November 2001