Telecommunications Industry Ombudsman Ltd v Commissioner of State Revenue
[2017] VSC 286
•1 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
TAXATION LIST
S CI 2016 02540
| TELECOMMUNICATIONS INDUSTRY OMBUDSMAN LTD (ACN 057 634 787) | Appellant |
| v | |
| COMMISSIONER OF STATE REVENUE | Respondent |
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JUDGE: | CROFT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 May 2017 |
DATE OF JUDGMENT: | 1 June 2017 |
CASE MAY BE CITED AS: | Telecommunications Industry Ombudsman Ltd v Commissioner of State Revenue |
MEDIUM NEUTRAL CITATION: | [2017] VSC 286 |
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PAYROLL TAX – Charitable institution – Public benefit – Dominant purpose – Telecommunications Dispute Resolution Service – Nature of characterisation – Effective activities for benefit of members of the public – Statute of Charitable Uses 1601 (Eng) (Statute of Elizabeth) – Payroll Tax Act 2007, s 48(1) and (2) – Taxation Administration Act 1997, Part 4 and Part 10 – Taxation Administration Act 1997, s 96.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms J. Batrouney QC with Ms A. Lee | PricewaterhouseCoopers |
| For the Respondent | Mr P. Solomon QC with Mr C. Young | Solicitor for the Commissioner of State Revenue |
HIS HONOUR:
Introduction
This is a proceeding brought pursuant to s 106 of the Taxation Administration Act 1997 (“the TA Act”). This proceeding is an appeal against the determination of the Commissioner of State Revenue (“the Commissioner”) by the Telecommunications Industry Ombudsman Ltd (“the TIO”) against the disallowance of its objection to the decision of the Commissioner to deny its application for an exemption from payroll tax for the period from 1 July 2012 onwards. In substance, the TIO contends that it has been entitled to the exemption from payroll tax provided for in s 48(1)(a)(iii) of the Payroll Tax Act 2007 (“the PT Act”).
The issues for determination are whether, pursuant to s 48(1) of the PT Act, wages paid by the TIO are exempt from payroll tax if, relevantly, the TIO is a “non-profit organisation having as its … dominant purpose a charitable … purpose” (under the first limb of s 48(1)(a)(iii)); and the wages are paid to persons “engaged exclusively in work of a … charitable … nature for the … non-profit organisation” (being the second limb under s 48(1)).
Clearly, the TIO’s position is that it is entitled to exemption from payroll tax on the basis that both the first and second limb of s 48(1) are satisfied. The Commissioner, on the other hand, makes the following contentions:[1]
(a)assessed by reference to Pt 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (“the Telecommunications Act”), the TIO’s Memorandum and Articles of Association and the TIO’s Constitution, the purpose of the TIO is to operate and administer the scheme for the investigation and determination of complaints about telecommunications carriage services, which scheme is required, and provided for, by Pt 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth); and
(b)on the authority of Law Institute of Victoria v Commissioner of State Revenue,[2] which confirmed that the decision in General Nursing Council for England and Wales v St Marylebone Borough Council[3] remains good law in Victoria,[4] that purpose is not a charitable purpose.
[1]These contentions are reflected in the Notice of Determination (30 April 2014) at 10 and 12 (exhibit JJ-35 to the Affidavit of Judith Ngaire Jones (9 December 2016) (“Jones affidavit”)) (“Notice of Determination”), recognising of course that the Notice of Determination was issued almost 18 months before the decision in Law Institute of Victoria v Commissioner of State Revenue (2015) 101 ATR 899 (“Law Institute of Victoria Case”).
[2]Law Institute of Victoria v Commissioner of State Revenue (2015) 101 ATR 899.
[3]General Nursing Council for England and Wales v St Marylebone Borough Council [1959] AC 540 (“General Nursing Council Case”).
[4]Law Institute of Victoria v Commissioner of State Revenue (2015) 101 ATR 899 at 929 [144].
The Commissioner says that if he succeeds on these contentions, the appeal must be dismissed but concedes, on the other hand, that if he fails on these contentions, it is accepted that the TIO is entitled to the benefit of the payroll tax exemption provided for in s 48(1) of the PT Act for the period from 1 July 2012.
Procedural background
By letter dated 7 December 2012, the TIO applied to the Commissioner for a refund pursuant to s 19 of the TA Act for the period from 7 December 2007 to 7 December 2012, said to be within five years after the overpayment was made.[5] This letter is described in the TIO’s submissions as the “Application for refund”.
[5]Application for Refund of Overpaid Payroll Tax (7 December 2012) (exhibit JJ-31 to the Jones Affidavit).
By letter dated 7 May 2013, the TIO applied for an exemption from payroll tax under s 48 of the PT Act and also requested that the application be treated as a request for a refund pursuant to s 19 of the TA Act of any payroll tax paid in the last five years.[6] The application contained in this letter is described in the TIO submissions as “the Application” and the request for a refund is described in those submissions as “the Request”.
[6]Request for Exemption from Payroll Tax and Refund of Payroll Tax Paid (7 May 2013) (exhibit JJ-32 to the Jones affidavit).
By letter dated 31 October 2013, the Commissioner notified the TIO that the wages paid or payable by the TIO were not exempt wages under s 48(1) of the PT Act and, further, informed the TIO of its rights to object, but only in respect of the period from 1 July 2012 onwards.[7] This letter is described in the TIO’s submissions as “the Commissioner’s Decision”.
[7]Denial of Payroll Tax Exemption (31 October 2013) (exhibit JJ-33 to the Jones affidavit).
By notice dated 20 December 2013, the TIO lodged an objection against the Commissioner’s Decision (“the Objection”).[8]
[8]Notice of Objection (20 December 2013) (exhibit JJ-34 to the Jones affidavit).
By notice dated 30 April 2014, the Commissioner disallowed the objection (“the Determination”).[9]
[9]Notice of Determination.
By letter dated 26 June 2014, the TIO requested that the Commissioner refer the Determination to the Supreme Court of Victoria (“the Referral Request”),[10] and on 30 June 2016, the Commissioner referred the Determination to this Court.[11]
[10]Request to Treat Objection as an Appeal to the Supreme Court (26 June 2014) (exhibit JJ-36 to the Jones affidavit).
[11]Objection filed pursuant to Rule 7.05 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008 (30 June 2016).
Against this background, the Commissioner contends that the decision in the Law Institute of Victoria Case,[12] confirms that the only matter that is properly before the Court is the TIO’s objection against the Commissioner’s Decision to refuse its application for an exemption from payroll tax for the period from 1 July 2012 and that the application by the TIO for a refund of payroll tax in respect of prior periods is not before the Court. The latter position is not controversial as between the parties,[13] though the TIO requested that the Court give some indication in respect of this prior period.
[12]Law Institute of Victoria v Commissioner of State Revenue (2015) 101 ATR 899 at 910 [54]–[8].
[13]See Transcript, 46–7, 67, 74–5.
Legislation
Payroll Tax Act
The PT Act imposes payroll tax on all “taxable wages” (s 6). The employer is liable to pay payroll tax (s 7) in an amount ascertained by reference to schedules to the PT Act (s 8). “Taxable wages” are defined in ss 10 and 11 of the PT Act as wages, other than exempt wages, that are paid or payable by an employer for services performed in certain circumstances.
Part 4 of the PT Act contains provisions that define the scope of “exempt wages”. Section 48 enacts an exemption for non-profit organisations. In the period on and from 1 July 2012, s 48 relevantly provides as follows.
48Non-profit organisations
(1)Wages are exempt wages if the Commissioner is satisfied that the wages are paid or payable—
(a)by any of the following— …
(iii)a non-profit organisation having as its whole or dominant purpose a charitable, benevolent, philanthropic or patriotic purpose (but not including a school, an educational institution, an educational company or an instrumentality of the State); and
(b)to a person engaged exclusively in work of a religious, charitable, benevolent, philanthropic or patriotic nature for the institution or non-profit organisation.
Telecommunications Act
As is apparent from both the TIO submissions and also the Commissioner’s submissions, Part 6 of the Telecommunications Act is important in this appeal. For convenience, the provisions of Part 6 of that Act are set out in Annexure A to these reasons.
Part 6 of the Telecommunications Act obliges carriers to enter into the Telecommunications Industry Ombudsman Scheme, which is the scheme operated by the TIO under the provisions of s 128. Carriers are also obliged to comply with the scheme under the provisions of s 132 of the Act. More particularly, the Act sets out, in s 128, what the scheme must provide for and the standards with which the scheme must comply (s 128(8); a reference to what the relevant Minister may, by legislative instrument, determine as standards for the purposes of the scheme (s 128(9)).
Under s 119 of the Telecommunications Act, the TIO may issue a written certificate that states that a specified carriage service provider has contravened a statutory standard; and that certificate is prima facie evidence of the matters in the certificate. Moreover, the TIO may also have complaints or matters referred to it under s 514 of the Telecommunications Act 1997 (Cth).
Factual matters
Overview
The TIO was established in 1993 and provides a free and independent dispute resolution service for small business and residential consumers who have an unresolved complaint about their telephone or internet service in Australia. These service providers—referred to interchangeably as “carriers” or “carriage service providers”—are required to be members of the dispute resolution scheme operated by the TIO.[14] Although the TIO now functions in the context of a statutory scheme, it was not itself established as an entity by statute.[15]
[14]Telecommunications (Consumer Protection and Service Standards)Act 1999 (Cth), s 128(1).
[15]And see further as to the history of the TIO’s establishment, ACA v Viper Communications (2001) 110 FCR 380 at 384–7, [16]–[25].
The TIO has jurisdiction to handle complaints about telephone and internet services, including by collecting any documents or information relevant to the complaint. It has authority to make decisions that are “binding”[16] on the service provider—currently up to a ceiling of $50,000—and to make recommendations—currently up to a ceiling of $100,000.[17]
[16]But as to the nature of “binding” decisions and the range of possible meanings, see ACA v Viper Communications (2001) 110 FCR 380, particularly at 397–8, [71]–[2].
[17]Telecommunications (Consumer Protection and Service Standards)Act 1999 (Cth), s 132.
Telecommunications Industry
Unsurprisingly in the present age, telecommunications services are considered essential services, as are, for example, gas, electricity and water services.[18] This point is emphasised when regard is had to the increasing take-up of mobile services by Australian consumers—with around 31.77 million services as at 30 June 2015—and broadband services—with around 12.95 million services as at 30 December 2015; with a virtually stable position with respect to landline services, which have remained relatively static over recent years—at around 9.08 million services as at 30 June 2015.[19]
[18]Expert Report of Professor Anita Stuhmcke (8 December 2016) (“the Stuhmcke Report”), [25] and [38]; and see the Expert Report of Ms Clare Petre (8 December 2016) (“the Petre Report”), [18.3]; and see also, by way of example, s 600F of the Corporations Act 2001, which defines “essential service” to include “a carriage service (within the meaning of the Telecommunications Act 1997 (Cth))”.
[19]Stuhmcke Report, [56].
Industry Ombudsman Scheme
The nature of industry ombudsman schemes is the subject of extensive discussion in the expert report of Professor Stuhmcke, which was relied upon by the TIO. The nature of these schemes and this expert evidence is not in controversy, at least in general terms, save to the extent that the Commissioner seeks to argue that the TIO role and functions under the TIO scheme is in the nature of a regulatory function, hence it might be thought that any decision-making capacity on the part of the TIO may tend to support this position, rather than merely being a possible incident of industry ombudsman schemes generally. In any event, in the present context it is helpful to refer to some of the characteristics of industry ombudsman schemes as identified by Professor Stuhmcke.
An industry ombudsman scheme provides an impartial dispute resolution service for consumers.[20] Schemes of this nature are independent and provide an external avenue to resolve complaints that consumers cannot resolve with their service providers.[21] The schemes are free to consumers and are funded by industry.[22]
[20]Stuhmcke Report, [15].
[21]Stuhmcke Report, [15].
[22]Stuhmcke Report, [15]. Industry ombudsman schemes may be referred to as External Dispute Resolution (EDR) schemes, to contrast them with internal dispute resolution (IDR) schemes that may exist within industry corporations—such as the complaints department within Telstra: Stuhmcke Report, [15].
Industry ombudsman schemes exist to redress the power imbalance between the consumer and the industry.[23] Professor Stuhmcke says that to achieve this aim, the principles of the schemes are as follows:
(a)an industry ombudsman is independent, and should be perceived to be independent. This means the ombudsman’s dispute resolution role is neither one of advocating for the consumer nor for the industry member;[24]
(b)an industry ombudsman scheme operates as a “last resort” for unresolved complaints—encouraging industry to resolve the complaints at first instance;[25] and
(c)industry ombudsman rely upon the ombudsman brand name to promote consumer trust and respect for their investigative style of dispute resolution.[26]
The fact that an industry ombudsman may make a decision that is “binding”[27] on the industry member does not detract from the position that it is an industry ombudsman scheme,[28] though a characteristic remains that the schemes are non-judicial.[29] The intent of these schemes is that the resolution of consumer complaints be quick and informal; with the parties not legally represented.[30] The aim of these schemes is to provide a practical and proportionate response to the resolution of disputes.[31]
[23]Stuhmcke Report, [16].
[24]Stuhmcke Report, [16].
[25]Stuhmcke Report, [16].
[26]Stuhmcke Report, [16].
[27]See above, [18] and the footnote reference to the Viper case.
[28]Stuhmcke Report, [16]. For example, in the case of the TIO, see s 132 of the Telecommunications (Consumer Protection and Service Standards)Act 1999 and the TIO Terms of Reference (1 December 2014) (exhibit GNH-12 to Affidavit of Gayle Neville-Hill (9 December 2016)(“Neville-Hill Affidavit”)) (“TIO Terms of Reference”), [3.11].
[29]Stuhmcke Report, [18].
[30]Stuhmcke Report, [18].
[31]Stuhmcke Report, [18].
In addition to resolving disputes, industry ombudsman schemes also aim to improve industry standards.[32] This process may include identifying systemic failings in industry practice,[33] the intention being to reduce disputes between consumers and industry.[34]
[32]Stuhmcke Report, [17].
[33]Stuhmcke Report, [17].
[34]Stuhmcke Report, [17].
Thus, Professor Stuhmcke described the central purpose of industry ombudsman schemes as follows:[35]
… to use the ombudsman institution as a vehicle to apply the public law principles of administrative law to the private sphere. These principles include values of openness, fairness, rationality and individual participation. Industry ombudsman schemes therefore provide decision making that is fair, high-quality, efficient and effective, providing industry accountability through providing individual consumer access to review of both the fairness and reasonableness as well as the legality and quality of industry decisions and conduct.
[35]Stuhmcke Report, [28].
The history of the TIO
The TIO was established in response to what were undoubtedly sweeping technological and regulatory changes in the Australian telecommunications industry throughout the 1980s and early 1990s.[36] The statutory agency which had traded as Telecom—which, of course, grew out of the PMG—the Post Master General’s department—was both a government-controlled monopoly provider of fixed line domestic telecommunications services and a regulator of infrastructure installation and maintenance standards (“the Telecom monopoly”). Global trends towards deregulation, the advent of new mobile telecommunications technologies, and criticism of Telecom’s perceived conflict of interest generated pressure for change from the Telecom monopoly in the mid-1980s.[37]
[36]See the History of the TIO, the section “A twinkle in the eye—1992” (exhibit JJ-3 to the Jones affidavit) (“A Twinkle in the Eye”).
[37]See A Twinkle in the Eye.
As a result of extensive debate and consultation, the Commonwealth government decided to reform the telecommunications industry by opening up Telecom services to competition. A phased approach was decided on, with an initial duopoly for fixed line services to begin on 1 July 1991—with mobile services open to competition—followed by full competition from 1 July 1997.[38] In addition to the new independent regulator, AusTel, it was decided that an industry ombudsman scheme would be needed to provide consumer protection.[39]
[38]See A Twinkle in the Eye.
[39]See A Twinkle in the Eye.
As part of the opening up of Telecom services to competition, Part 5 of the now repealed Telecommunications Act 1991 (“the 1991 Act”) established a system for licensing general telecommunications carriers. Section 64(1) of the 1991 Act empowered the Minister to declare, inter alia, that all general telecommunications licences were subject to specified conditions. Under the Telecommunications (General Telecommunications Licences) Declaration (No 2) 1991, the then Minister imposed the following licence condition:
Industry Ombudsman
4.1 A licensee must, in association with other carriers, enter into, and comply with, an Ombudsman scheme, providing for investigation in relation to complaints by consumers about all matters relating to service, billing and the manner of charging for telecommunications services.
At this time, there were three licensed carriers—Telecom, Optus and Vodafone. These carriers decided to establish such an Ombudsman scheme as a company limited by guarantee—i.e. TIO Ltd[40]—with a demand-driven funding formula by which members contributed amounts proportional to the number of complaints about their service, and a governing Council comprised of both service provider and consumer representatives to ensure independence.[41]
[40]Defined in these reasons as “TIO”.
[41]See A Twinkle in the Eye.
The role proposed for the TIO was to act as an “independent office of last resort to enable complaints and disputes between consumers of telecommunications services and licensed carriers to be settled by mediation or arbitration”.[42] With the approval of the Commonwealth government, these three carriers implemented this scheme and the TIO opened its office in Melbourne on 1 December 1993.[43]
[42]See A Twinkle in the Eye.
[43]See A Twinkle in the Eye.
The scheme which was implemented for the purposes of the Minister’s declaration had three components—the setting up of the TIO, the establishment of a Council and the appointment of the Telecommunications Industry Ombudsman (“the Ombudsman”).[44]
[44]See Australian Communications Authority v Viper Communications Pty Ltd (2000) 108 FCR 173 at 385 [19].
The TIO Scheme was introduced to ensure consumers had access to free dispute resolution services. The Scheme was, therefore, established as a key element in the competitive telecommunications market to ensure that consumers had access to equal redress against their service providers.[45]
[45]Stuhmcke Report, [34].
The first legislative recognition of the TIO Scheme came with the enactment of the Telecommunications Act 1997. Part 10 of the Telecommunications Act 1997 extended the TIO Scheme beyond carriage service providers supplying a standard telephone service or a public mobile telecommunications service to those providing a carriage service enabling end users to access the internet. Membership of the TIO Scheme became compulsory for carriage service providers unless exempted by the Australian Communications Authority (“the ACA”) (ss 246, 247). Part 10 of the Telecommunications Act 1997 (ss 244–51) was repealed as from 2 August 1999 but was re-enacted as Part 6 of the Telecommunications Act.[46]
[46]An abbreviated reference to the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (see above, [3]).
The history, nature and development of the TIO has also been the subject of judicial consideration and comment. In Australian Communications Authority v Viper Communications Pty Ltd, Sackville J said:[47]
… the TIO scheme is intended … to provide a swift, cheap and effective dispute resolution mechanism for residential customers and proprietors of small businesses. Clearly enough, Parliament contemplated that the TIO scheme would deal with a large volume of consumer complaints, the vast majority of which would involve relatively small sums (in money or money's worth).
Similarly, in Purton-Smith v Telstra Corporation Ltd, [48] Gillard J noted with respect to the TIO that it “… provides a free and independent alternative dispute resolution scheme for consumers in Australia who have a complaint about their telephone services” and “… is independent of industry, government and consumer organisations. The Ombudsman provides a service seeking to settle disputes in a fair way, having regard to the law and to good industry practice”.
[47]Australian Communications Authority v Viper Communications Pty Ltd (2001) 110 FCR 380 at 401, [84].
[48]Purton-Smith v Telstra Corporation Ltd [2006] VSC 197, [7].
Additionally, and also similarly to the judicial observations already noted, Foster J, in Australian Communications and Media Authority v Bytecard Pty Ltd,[49] noted that the TIO “is a free, industry funded, independent alternative dispute resolution scheme for small business and residential consumers in Australia with unresolved complaints about their telephone or internet services. The Scheme seeks to provide the independent, just, informal and speedy resolution of such complaints”. His Honour also noted that “[a]ll telecommunications carriers and eligible carriage service providers in Australia … are required by statute to be members of the TIO Scheme, and by membership of the Scheme, to comply with the TIO Scheme and its Constitution including with “binding”[50] decisions and determinations made after the completion of an investigation of a complaint”.[51]
[49]Australian Communications and Media Authority v Bytecard Pty Ltd [2013] FCA 38, [20].
[50]See above, [18] and the footnote reference to the Viper case.
[51]Australian Communications and Media Authority v Bytecard Pty Ltd [2013] FCA 38, [21].
TIO governance—overview of structural arrangements
From its inception until February 2014, the TIO operated under a dual-governance structure. Under this dual-governance structure, as required by the Articles of Association, the TIO’s Board established the TIO’s Council, which comprised an independent Chairman, Elected Industry Nominees and User Nominees.[52] This dual-governance structure was based on that of the banking industry ombudsman scheme and was a structure subsequently adopted in other industry ombudsman schemes.[53]
[52]Neville-Hill affidavit, [7].
[53]Neville-Hill affidavit, [8].
Nevertheless, from February 2014, the TIO changed to a unitary governance structure, with a Board comprising directors with industry experience, directors with consumer experience and independent directors.[54] This change in structure was considered more efficient and consistent with best practice.[55] This change in governance structure came about following recognition by the Board and the Council that the TIO’s dual governance structure no longer reflected best practice.[56]
[54]Neville-Hill affidavit, [9].
[55]Notice of General Meeting on 26 February 2014 (exhibit GNH-9 to the Neville-Hill affidavit), cl 9 (“Notice of General Meeting”).
[56]Neville-Hill affidavit, [9].
The TIO’s key governance documents were, consequently, amended in light of this change in structure.[57] Nevertheless, other than amendments on account of the change in the governance structure, the contents of the key governance documents remained substantially the same,[58] as did the jurisdiction of the TIO and its day-to-day operations.[59]
[57]Neville-Hill affidavit, [10].
[58]The key provisions over time have been tracked in the Neville-Hill affidavit.
[59]Notice of General Meeting, cl 15.
TIO key governance documents
Key governance documents
The TIO’s key governance documents are:
(a)its Constitution (formerly its Memorandum and Articles of Association under the dual governance structure);
(b)its Terms of Reference (formerly its Constitution under the dual governance structure);
(c)applicable legislation;
(d)the Australian Government Treasury’s Benchmarks for Industry-based Customer Dispute Resolution (“the Benchmarks”).[60]
[60]Jones affidavit, [14].
It is to these key governance documents that I now turn.
Constitution
The objects of the TIO are stated in the February 2014 Constitution (“the Constitution”) in the following terms:[61]
[61]Exhibit GNH-10 to the Neville-Hill affidavit.
3 Objects
The objects of TIO Limited are to operate the Scheme and to appoint an Ombudsman with power on behalf of TIO Limited:
(a)to receive, investigate, make decisions relating to, give directions relating to and facilitate the resolution of:
(i)complaints as to the provision or supply of (or the failure to provide or supply) a Carriage Service by a Member, other than complaints in relation to the general telecommunications policy or commercial practices of such a Member;
(ii)complaints from owners or occupiers of land in respect of which a holder of a Carrier Licence under the Act has exercised its statutory powers as a Carrier, where the Carrier is a Member, other than complaints in relation to the policy or commercial decision of a Carrier to exercise its statutory rights as a Carrier in relation to that particular land; and
(iii)such other complaints as may by agreement with the complainant be referred to the Ombudsman by a Member; and
(b)to exercise such jurisdiction, powers and functions as may be conferred by or under any legislation or instrument.
Other important provisions of the Constitution are as follows:
(a)the income and property of the TIO “shall be applied solely towards the promotion of the objects of [the TIO]” (clause 5);
(b)members agree to pay the fees set out in clause 7;[62]
(c)the appointment of each director is based on criteria including the candidate’s “ability to uphold the independence of the Ombudsman” (clauses 12.3(b)(i)(C), 12.4(e)(i)(D), 12.5(a)(iii), 12.6 (a)(iii));
(d)the TIO will operate in accordance with and observe the roles, functions, powers and obligations set out in the Terms of Reference (clause 17.1);
(e)the Board is to commission periodic reviews of the Scheme as required by legislation or when the Board otherwise considers it necessary or desirable (clause 22.1); and
(f)upon winding up, any surplus property “shall be paid to or distributed to a society, association or club which is not carried on for the purposes of profit or gain to individual members and is established for community services purposes” (clause 23.2(c)).
[62]See below, [78]–[82] as to the TIO’s funding model.
Terms of Reference
In the present context, regard should be had to the following provisions of the Terms of Reference, published on 1 December 2014:[63]
(a)when handling complaints, the TIO will consider relevant laws, good practice and what is fair and reasonable (clause 1.5);
(b)the TIO will consider any benchmarks the Commonwealth Government publishes about dispute resolution schemes (clause 1.6(a));
(c)the TIO aims to handle complaints in a fair, independent, economical, informal and fast way (clause 1.7);
(d)where the TIO identifies a systemic issue (i.e. a concern about a system, process or practice of a provider or providers that may or does affect a significant number or particular type of consumers), the TIO will work with the provider to try to resolve the issue (clause 5.1);
(e)the TIO can publish the name of a provider who does not comply with the TIO scheme and details of its non-compliance (clause 6.2);
(f)the TIO can report providers to “the telecommunications regulator or another regulator”[64] (clause 6.3); and
(g)the TIO can publish reports about its activities and about issues that relate to the TIO scheme and the telecommunications industry, including complaint statistics and trend analyses, information about systemic issues and case studies based on complaints the TIO has handled (clause 6.6).
[63]Exhibit GNH-12 to the Neville-Hill affidavit (“Terms of Reference”).
[64]The “telecommunications regulator” is the Australian Communications and Media Authority (“the ACMA”). An example of “another regulator” is the Australian Competition and Consumer Commission (“ACCC”).
Applicable legislation
As discussed previously, Part 6 of the Telecommunications Act is relevant to the TIO. Under these provisions, providers of telephone services to residential customers or small business customers and providers of mobile telecommunication services and internet services to end-users are required to enter the TIO scheme (s 128(1)). The scheme must provide for the Ombudsman to investigate, make determinations relating to and give directions relating to complaints about carriage services by end-users of those services (s 128(4)). An end-user is not liable to pay any fees for the service to the service provider in respect of a complaint made by the end-user about the carriage service (s 128(4A)).
The ACMA may direct a service provider to join the TIO scheme, and the service provider must comply with that direction (s 130). Members of the TIO scheme must comply with the scheme (s 132). Finally, the operations of the TIO scheme must be reviewed every five years by an external body (s 133A).
Benchmarks
The Benchmarks provide a reference point to inform the design, continuous improvement and evaluation of operations of industry-based dispute resolution schemes.[65] Thus, the Benchmarks are essentially a “best practice” guide for industry-based dispute resolution schemes. The original Benchmarks for Industry-based Customer Dispute Resolution Schemes were issued in 1997 by the then Commonwealth Minister of Customs and Consumer Affairs, and were relaunched by the Commonwealth Treasury in 2015. The Benchmarks of accessibility, independence, fairness, accountability, efficiency and effectiveness have not changed.
[65]Stuhmcke Report, [43].
The purpose of each Benchmark is as follows:[66]
(a)accessibility—to promote access to the office on an equitable basis;
(b)independence—to ensure that the processes and decisions of the office are objective and unbiased, and are seen to be objective and unbiased;
(c)fairness—to ensure that the office performs its functions in a manner that is fair and seen to be fair;
(d)accountability—to ensure public confidence in the office and allow assessment and improvement of its performance and that of participating organisations;
(e)efficiency—to give the community and participating organisations confidence in the office and to ensure the office provides value for its funding; and
(f)effectiveness—to promote community confidence in the office and ensure that the office fulfils its role.
[66]Benchmarks for Industry-based Customer Dispute Resolution Schemes (2015) (exhibit DC-3 to Affidavit of Diane Carmody (9 December 2016) (“Carmody affidavit”))).
The Benchmarks, which are referred to in the TIO’s terms of reference,[67] are central to the operations of the TIO.[68] In 2013, Simon Cohen, the then Ombudsman, said that the Benchmarks play “an integral role at the TIO and guid[e] a range of operational activities”.[69] Moreover, the Benchmarks are taken into account when the TIO is reviewed by an external body, including as required by s 133A of the Telecommunications Act.[70] Finally, it is said that the Benchmarks promote trust in TIO dispute resolution. It is important for schemes of this nature that consumers, industry and other observers are reassured that appropriate standards are in place.[71] The Ombudsman holds a personal membership of the Australian and New Zealand Ombudsman Association (“the ANZOA”). It follows that the ANZOA has assessed that the TIO scheme meets the Benchmarks, as the Ombudsman would not qualify for membership of the ANZOA unless the TIO scheme met the ANZOA requirements.[72] The Benchmarks form the basis of the TIO’s purpose.[73]
[67]See above, [41].
[68]Stuhmcke Report, [44]; Jones affidavit, [14]; Carmody affidavit, [10].
[69]Stuhmcke Report, [44], citing the Telecommunication Industry Ombudsman Submission to Review of the Benchmarks for Industry-based Customer Dispute Resolution Schemes (24 May 2013) (exhibit JJ-11 to the Jones affidavit).
[70]Jones affidavit, [22], Affidavit of Gerard Dell’Oste (12 December 2016) (“Dell’Oste affidavit”), [20].
[71]Stuhmcke Report, [45].
[72]Jones affidavit, [23].
[73]Jones affidavit, [24].
Stated purpose of the TIO
The stated purpose of the TIO is:[74]
[74]2016–21 Strategic Direction (Telecommunications Industry Ombudsman 2016 Annual Report at 5 (exhibit GNH-13 to the Neville-Hill affidavit) (“2016 Annual Report”)); being the refined purpose and set goals as settled by the Board.
TIO purpose
The purpose of the TIO is to provide a fair, independent, and accessible dispute resolution service for the telecommunications industry that complies with the Benchmarks for Industry-based Customer Dispute Resolution (CDR Benchmarks).
Achieving this purpose will contribute to enhanced community confidence in the telecommunications industry.
The TIO observes that the wording of its “purpose” has evolved over time and may have been previously referred to as its “mission”, “values”, “strategic goals”, and the like from time to time—nevertheless, its substance has remained the same over the period from 7 December 2007 to the present time (“the Relevant Period”).[75]
[75]Jones affidavit, [26].
TIO activities
Overview
The evidence indicates, and in my view quiet clearly, that the core function of the TIO is dispute resolution. Over the Relevant Period, the TIO received 1,388,884 new complaints, and the Ombudsman made 58 determinations.[76] As part of its dispute resolution function—perhaps the broader, longer term, perspective aspect of that function—the TIO also investigates systemic issues.[77] Dispute resolution is not the only activity of the TIO, as it also undertakes other related activities in pursuit of its purpose; namely, policy and research, publications, outreach activities and industry engagement.[78] The emphasis placed on each of these categories of supporting ancillary or supporting activities changes over time, depending on a variety of factors, such as needs and resources. Nevertheless, the TIO has undertaken activities within each of these categories—as well as dispute resolution and the investigation of systemic issues—throughout the Relevant Period.[79]
[76]Jones affidavit, [27].
[77]Carmody affidavit, [29].
[78]Jones affidavit, [29].
[79]Jones affidavit, [30].
Dispute resolution
As indicated in the overview of the TIO’s activities dispute resolution is the core activity.[80] Having regard to the nature of these proceedings, it is helpful to consider in some detail the nature and scope of the core dispute resolution process and the ancillary dispute resolution function of the TIO, namely the investigation of systemic issues. As indicated, the distinction between the two broad threads of the dispute resolution activities might be described as short term and long term, or, alternatively or additionally, as transactional and structural. In any event, it is to these details that I now turn.
Dispute resolution process
[80]Carmody affidavit, [8]; see also Jones affidavit, [27].
The TIO’s stages of dispute resolution (“the Stages”) are set out in a flowchart in the 2016 Annual Report, together with an outline of the TIO’s dispute resolution process (“the Outline”).[81] The Stages reflect the TIO’s stages of dispute resolution throughout the Relevant Period and the Outline reflects the TIO’s dispute resolution process throughout the Relevant Period, except that conciliation was introduced in 2011, and enquiry referrals were introduced in 2013.[82]
[81]See 2016 Annual Report at 10 and 11, respectively.
[82]Carmody affidavit, [13].
The Outline is helpfully summarised by the TIO in its submissions, as follows:[83]
[83]Outline of Submissions of the Applicant (12 December 2016) [66] (with reference to the 2016 Annual Report).
(a)by way of example, in 2015–16, 59% of consumers contacted the TIO by phone and 41% contacted the TIO using its online form (at p 11.1);
(b)initial contacts are categorised as an enquiry or a complaint (p 11.2). The charges for a complaint are levied against the service provider directly whereas the charges for enquiries (and enquiry referrals) are levied proportionally against all providers based on the number of complaints against them;
(c)enquiries include general queries about a telecommunications service, complaints outside the TIO’s jurisdiction (for example, a fault with a mobile handset, where it was not purchased as part of a mobile/data plan) and circumstances where a consumer has not given the provider a reasonable opportunity to resolve the complaint before involving the TIO.
By way of example, in 2015–16, the TIO received 46,778 new enquiries (p 11.5);
(d)when a consumer contacts the TIO about an unresolved complaint, the TIO would initially refer the complaint back to the provider’s escalated complaints team to provide a further opportunity for the provider and consumer to resolve the complaint themselves (p 11.5). Enquiry Referrals and Level 1 complaints are sent back to the provider’s escalated complaints team;
(e)complaints may relate to mobile, landline or internet services (p 14.1);
(f)by way of example, in 2015–16, the TIO received 112,518 new complaints (p 11.6), with 86.6% relating to residential services and 13.0% relating to small business customers (p 17.1). Of the total number of new complaints (received in 42 different languages, see p 17.2), 111,949 complaints (i.e. 99.5%) were sent to service providers under the referral process, where the provider has 10 days to resolve the complaint with their customer (unless the matter is urgent, in which case the provider has 2 days). However, in a relatively small number of cases, where the consumer and provider have already had extensive engagement and opportunity to resolve the matter, the complaint may be moved directly to conciliation (p 11.8);
(g)if a complaint is not resolved to the consumer’s satisfaction after referral to the provider, the TIO will issue a conciliation notice to the parties. The conciliation notice records the consumer’s unresolved issues and preferred resolution, the provider’s response and the legal and industry code considerations relevant to the complaint.[84] The TIO officer may conduct shuttle conciliation (i.e. where the conciliator facilitates an exchange of letters or the passing of information between the parties) to resolve the complaint (p 11.9). Conciliations are also known as Level 2 complaints;
(h)some cases require investigation because of the complexity of the issues raised by the complaint, the amount of documentation/materials (e.g. recordings of telephone discussions between the parties that gave rise to the dispute) that must be considered or because the parties are unwilling to change their position (p 11.2). Investigations are also known as Level 3 complaints;
(i)cases can still be resolved by negotiation during the investigation process, as the information gathered and analysis of the issues can inform the parties about the merits of their case (p 11.3);
(j)cases that are conciliated and investigated may be closed after the parties accept the TIO officer’s assessment about the merits of the case. If the provider makes an offer to resolve the complaint that is, in the opinion of the TIO officer, fair and reasonable, then the TIO officer’s assessment is likely to be that there is no basis for the TIO’s further involvement in the case (p 11.4);
(k)the TIO provides written assessment decisions at both the conciliation and investigation stages. A consumer who has new information or can show an error in the assessment can ask for a review of the case by a senior TIO officer. The review process will usually involve gathering further information and assessment and may confirm the initial assessment or may result in a different outcome (p 11.8); and
(l)if a provider does not accept the TIO officer’s view of a case, the TIO sends a “preliminary view” (a written assessment with reasons) to the provider. This gives the provider the opportunity to provide new and relevant information, which might change the outcome. If relevant information is not provided, the Ombudsman can issue a Determination that is binding on the provider (p 11.9). Determinations are also known as Level 4 complaints.
If the provider does not comply with the Ombudsman’s determination, the TIO can report the non-compliance to the industry regulator, the ACMA.[85]
[84]For example, an “industry code” referred to in s 114(1) of the Telecommunications Act.
[85]Carmody affidavit, [16].
About 90% of complaints received by the TIO are resolved at the referral stage, with common financial outcomes for consumers including a debt or fee reduction or waiver, and a billing adjustment.[86] An example given in the TIO’s submissions is that in 2015–16, the median value in financial outcomes was $314.60.[87] Common non-financial outcomes for consumers include an explanation or assistance, and the cancellation or change to a contract, service or plan.[88]
[86]Carmody affidavit, [17].
[87]2016 Annual Report at 12.
[88]Carmody affidavit, [17].
An important aspect of the dispute resolution process—particularly in the present context—is that the process provided by the TIO does not affect a consumer’s legal rights. This means that if the consumer is unsatisfied with the outcome under the TIO’s process and rejects a settlement offer, the consumer can pursue the matter in the courts or tribunals as appropriate. Where, however, a consumer accepts a settlement through the TIO’s dispute resolution process, it is intended to be a “full and final settlement”.[89]
Systemic issues
[89]Carmody affidavit, [19].
In accordance with the TIO’s key governance documents,[90] the TIO investigates systemic issues. It identifies possible systemic problems by monitoring complaint trends, undertaking research and analysing alerts from its dispute resolution staff.[91] Once an issue has been identified as possibly systemic, the TIO alerts the relevant provider of the problem. This can, it is submitted, expedite the identification of the underlying cause and prevent further detriment from occurring, consistent with the TIO’s promotion of the fair and effective resolution of complaints.[92] If the TIO does not believe that a systemic problem has been resolved, it may investigate the issue more formally and recommend a resolution to the relevant provider. If a provider refuses to implement a recommended resolution, the TIO may refer the matter to the ACMA.[93]
[90]For example, Constitution, cl 5(a) and the TIO Terms of Reference (1 December 2014), cl 5A (which together form exhibit GNH-10 to the Neville-Hill affidavit).
[91]2016 Annual Report at 16.
[92]2016 Annual Report at 5.
[93]2016 Annual Report at 16.
Some examples of the TIO treatment of systemic issues are provided in its submissions:[94]
(a)6 systemic investigations were closed during 2007–08;[95]
(b)in 2011-12, the TIO’s systemic issues team conducted 79 investigations;[96] and
(c)in 2015-16, the TIO monitored and investigated 47 potential systemic issues.[97]
Land access objections
[94]Outline of Submissions of the Applicant (12 December 2016), [73].
[95]Telecommunications Industry Ombudsman 2008 Annual Report at 47–50 (exhibit GNH-21 to the Neville-Hill affidavit) (“2008 Annual Report”).
[96]Telecommunications Industry Ombudsman 2012 Annual Report at 15 (exhibit GNH-17 to the Neville-Hill affidavit) (“2012 Annual Report”).
[97]2016 Annual Report at 3.
The TIO has jurisdiction to decide land access objections, being “objections from landowners or occupiers about the proposed placement of ‘low impact facilities’ such as antennas or cabling on their land”.[98] These cases, and cases about land damage by a carrier when installing or maintaining telecommunications equipment, are assessed by senior TIO staff with knowledge of the legislation and the objections process.[99] The example given in the TIO’s submissions is that it received 11 new land access objections in the 2014–15 financial year, and six in the 2015–16 financial year.[100]
[98]2016 Annual Report at 11.
[99]Carmody affidavit, [35].
[100]2016 Annual Report at 11.
Policy and research
The TIO undertakes research on telecommunications issues and makes submissions to regulators—such as the ACMA and the ACCC—and other agencies about trends in dispute resolution in the telecommunications industry. The submissions by the TIO focus on how identified issues, legislation and codes of practice can and do affect telecommunications consumers. Key themes during the Relevant Period have been consumer protection and regulatory reform.[101] The example given by the TIO in its submissions is that it made 12 submissions in the 2011–12 financial year[102] and 17 submissions in the 2015–16 financial year.[103]
[101]Jones affidavit, [31].
[102]Jones affidavit, [32]; 2012 Annual Report at 34.
[103]Jones affidavit, [32]; 2016 Annual Report at 3, 8.
Publications
The TIO regularly issues or facilitates publications to raise public awareness about telecommunications issues, including issues affecting customers of telecommunications services. It also issues publications to highlight certain policies and practices adopted by telephone and internet companies that may be cause for concern, and also to report on the types and sources of complaints to the TIO and their outcomes.[104] Reference is made to a number of publications in the TIO’s submissions, namely, the Financial Hardship Guideline and TIO Talks, the latter being the TIO newsletter. There are also other publications including those discussed with respect to the TIO Outreach activities—examples being the Indigenous Toolkit, the Disability Action Plan and the multi-lingual “Complaint?” brochure. Reference is made to these further publications in detail in the reasons which follow.
Financial hardship guideline
[104]Jones affidavit, [35].
In the financial year 2007-08, the TIO identified financial hardship policies of the service providers as a source of complaint.[105] The 2008 Annual Report noted that complaints may arise where “suppliers appear to not have a policy, fail to advise customers of the policy, or fail to apply the policy to the individual circumstances of customers claiming to be experiencing financial hardship”.[106]
[105]Jones affidavit, [37].
[106]2008 Annual Report at 52.
By the 2011–12 financial year, the TIO “sponsored an ongoing discussion with industry, consumer and regulatory stakeholders, with the aim of establishing a best practice framework to assist consumers in financial hardship”.[107] In November 2011, the TIO facilitated a forum on financial hardship to address some of the issues that arose from telecommunications debt and the impact it could have on vulnerable consumers.[108] After the forum, the TIO was involved in facilitating the development of a document entitled “Responding to Customers in Financial Hardship: Principles and Practices for Telecommunications Providers”. The main aim of the document was to assist providers with helping consumers in hardship stay connected to essential communications services whilst meeting their financial obligations.[109]
[107]2012 Annual Report at 2.
[108]2012 Annual Report at 19, 33.
[109]Jones affidavit, [39].
By the 2015–16 financial year, the TIO facilitated a conversation between service providers and consumer advocates to review best practice guidelines for complaints made by consumers in financial hardship. The TIO has incorporated the feedback from the session into a new set of guidelines, which was released in April 2017.
TIO’s newsletter “TIO Talks”
The TIO’s electronic newsletter, TIO Talks, reports on current telecommunications issues and analyses complaint statistics. This newsletter is distributed electronically to the TIO’s mailing list, which includes media, consumers, regulators, government agencies, service providers, financial counsellors and other intermediaries. A member of the public can join the mailing list for no fee via the TIO’s website.[110] The TIO, in its submissions, notes that this newsletter was published in the 2011-12 financial year in three editions,[111] and in the 2015–16 financial year in five editions.[112]
[110]Jones affidavit, [41].
[111]2012 Annual Report at 32.
[112]2016 Annual Report at 3.
Outreach activities
In order to meet the accessibility principle under the Benchmarks, the TIO needs to promote its services, make its services easy to use and have no cost barriers that impede consumer access.[113] In order to promote its services, the TIO undertakes outreach activities.[114] During the Relevant Period, the TIO regularly focused its outreach activities on Aboriginal and Torres Strait Islander consumers, young people, people with disabilities and culturally and linguistically diverse communities.[115]
Community outreach events
[113]2016 Annual Report at 8.
[114]Jones affidavit, [45].
[115]Jones affidavit, [46].
The TIO has a year-round calendar of community outreach events and regularly presents to intermediaries and community groups such as financial counsellors’ conferences, community legal centres, multicultural advisory forums and disability support conferences to help make consumers aware of its existence and the services which it provides.[116] In this respect, the TIO provides by way of example, reference to the position in the financial year 2011–12 where the TIO participated in 102 community outreach events across Australia;[117] and to the position in the 2015–16 financial year, where the TIO participated in 43 community outreach events across Australia.[118]
Aboriginal and Torres Strait Islander consumers
[116]2016 Annual Report at 8.
[117]2012 Annual Report at 33.
[118]2016 Annual Report at 3.
The TIO has focused on making its services more accessible to Indigenous Australians during the Relevant Period.[119] Indigenous people may be especially vulnerable to unexpected financial over-commitment associated with telecommunications, particularly in remote areas where almost every call is a long-distance call. Additionally, remote communities may be connected to mobile and internet services for the first time, and some individuals in these communities have little or no knowledge of the handsets, data plans or private ownership responsibilities of a telecommunications contract.[120]
[119]Jones affidavit, [50].
[120]Telecommunications Industry Ombudsman 2010 Annual Report at 25 (exhibit GNH-19 to the Neville-Hill affidavit) (“2010 Annual Report”).
In about 2013, the TIO commissioned a survey concerning Indigenous communications strategy. As reported in the Indigenous Communications Strategy Results, key problems Indigenous consumers experience in respect of telecommunication services include:[121]
(a)coverage/service—the remoteness of many of the communities creates difficulties in accessing signals and help/support;
(b)contracts/rights—difficulties with contracts and knowing ones’ rights is driven by a combination of unethical sales people/unfair practices, literacy issues and cultural difficulties;
(c)costs—experienced due to providers selling bundles unsuitable for regional areas, the cost of delivering services to remote areas and unaffordable telephone bills; and
(d)communication challenges including a lack of literacy and a mistrust of words.
[121]Indigenous Communications Strategy Results (July 2013) at 12 (exhibit JJ-17 to the Jones affidavit).
A solution which the TIO developed in the 2015–16 financial year was the Indigenous Toolkit. The TIO distributed the Toolkit in the Indigenous Kit Mailout. The Indigenous Toolkit is a relevant and culturally appropriate communications toolkit for Indigenous consumers, which includes a flipchart, posters and a brochure with information about their telecommunications rights. The toolkit was aimed at giving community workers and residents in remote Indigenous communities information about how and when they can contact the TIO if they have problems they cannot resolve with their phone or internet provider.[122] During the course of the oral submissions in this matter, the Court was taken to the Indigenous Toolkit and its contents examined in some detail. The nature and purpose of the Indigenous Toolkit is encapsulated by the introductory material which contains a statement by the Ombudsman:
In light of the potential issues with telecommunications in remote areas involving individuals new to telecommunications contracts and the like, the TIO is to be commended for such an initiative as the development of this Toolkit; together with the other outreach activities to which reference is made in these reasons.
Young people
[122]Telecommunications Industry Ombudsman 2016 Financial Report at 15 (exhibit GNH-13 to the Neville-Hill affidavit).
The TIO regularly supports and/or attends teachers’ conferences to help teachers give students practical advice on managing mobile phone usage and bills.[123] By way of example, in the 2007–08 financial year, the TIO distributed the Sort It bulletin, which was a joint project with the Financial Ombudsman Service, to commerce and legal studies teachers throughout the country. The booklet contains cases studies that are directly relevant to young people. The TIO focused its distribution of Sort It to the Victorian Commerce Teachers Association conference in Melbourne, the Business Educators Association of Queensland conference in Brisbane and the Victorian Law Foundation’s Law Week.[124]
[123]Jones affidavit, [54].
[124]2008 Annual Report at 5.
In the 2013–14 financial year, the TIO presented, with the Australian Securities and Investments Commission (“ASIC”) at the Victorian Commercial Teachers Association conference and the Business Educators Association of Queensland conference. In addition, the TIO collaborated with the ACMA, ASIC and the ACCC to develop a virtual mobile phone to teach young students how to manage their mobile phone and data plan expenditure. Interactive modules expose students to the potential financial challenges of mobile phone use.[125]
People with disabilities
[125]Telecommunications Industry Ombudsman 2014 Annual Report (exhibit GNH-15 to the Neville-Hill affidavit) at 19 (“2014 Annual Report”).
During the Relevant Period, the TIO released two Disability Action Plans. The first was for the 2008–10 period, and the other for 2013–16 period.[126] The Disability Action Plans set out the TIO’s plans for providing an accessible complaints resolution service to all Australians by eliminating, as far as possible, discrimination in the way the TIO provides its services.[127] In addition, during the Relevant Period, the TIO “campaign[ed] to advertise [its] services … to people with disabilities”.[128] Moreover, the TIO joined the Australian Network on Disability and various conferences such as “Having a Say”, the largest conference for people with a disability and carers, and the National Deafness Sector Summit in Brisbane.[129]
Culturally and linguistically diverse (CALD) communities
[126]The TIO Second Disability Action Plan 2008–10 (exhibit JJ-21 to the Jones affidavit); the TIO Third Disability Action Plan 2013–16 (exhibit JJ-22 to the Jones affidavit).
[127]Jones affidavit, [58].
[128]2008 Annual Report at 6.
[129]2014 Annual Report at 19.
The TIO seeks to make its services more accessible to consumers who speak languages other than English. By way of example in this respect, the TIO has produced brochures outlining its services in 31 languages and distributed them to places such as community houses and community legal centres, including the multilingual “Complaint?” brochure.[130] The TIO has also attended Bring Your Bills days, organised by community agencies for new and emerging communities. These events give newly arrived migrants the chance to raise their concerns about utilities and services bills face to face, often through an interpreter.[131]
[130]Jones affidavit, [60].
[131]Jones affidavit, [61].
Additionally, by way of example, it was noted in the 2012 Annual Report that the TIO “undertook a series of activities to reach out to CALD communities, particularly refugees who have recently arrived here. These activities took [staff] to migrant resource centres in every state capital and also to Cairns”.[132] In November 2013, the TIO attended the biennial conference of the Federation of Ethnic Communities’ Councils of Australia.[133]
[132]2012 Annual Report at 33.
[133]2014 Annual Report at 19.
Industry engagement
Working with various entities
The TIO works with the service providers, government, regulators and community groups (“the Stakeholders”) to reduce complaints and improve telecommunications services.[134] This is achieved through the TIO’s systemic issues work, the publication of complaint data,[135] and working with the Stakeholders to share the TIO’s knowledge with them.[136] In this respect, the TIO provides a number of examples in its submissions:[137]
[134]Jones affidavit, [63].
[135]2016 Annual Report at 13–9.
[136]Jones affidavit, [63].
[137]Outline of Submissions of the Applicant (12 December 2016), [102].
By way of example:
(a)during 2007-08, the member engagement activities of the TIO … included “visiting and hosting member representatives to share information and insights”;[138]
(b)in or around January 2009, the TIO launched its “connect.resolve” campaign to raise awareness and improve the overall standard of complaint handling and customer service. This involved collaboration with telecommunications companies, regulators, policy makers and key consumer and industry groups;[139]
(c)during 2011-12, “[a]lmost 150 service providers attended briefings held in five cities in March 2012 by [then] Ombudsman Simon Cohen and Deputy Ombudsman Diane Carmody. These briefings provided detailed information about … improvements in complaint resolution, and provided an opportunity for service providers to put their feedback directly to the Ombudsman”;[140] and
(d)in 2015–16, the TIO’s Acting Ombudsman and Board members met with small telecommunications providers at forums held on the Gold Coast, Queensland, Perth, Western Australia and Canberra, Australian Capital Territory to discuss various issues.[141]
Member online education
[138]2008 Annual Report at 8.
[139]Jones’ affidavit, [64(b)].
[140]2012 Annual Report at 34.
[141]2016 Annual Report at 9.
The TIO makes available free online education to members, to help them learn about TIO processes, their obligations as service providers, and best practice complaint handling. This interactive online education can be accessed via the TIO’s website.[142] The member online education was developed having regard to the Benchmarks—in particular, the principles of efficiency and effectiveness.[143]
[142]Jones affidavit, [65].
[143]Jones affidavit, [66].
TIO membership
As already discussed, telecommunications service providers must be members of the TIO.[144] On 30 June 2008, there were 1,106 service providers registered as members of the TIO[145] and by 30 June 2016 this figure had grown to 1,599.[146]
[144]See above, [17], [43].
[145]2008 Annual Report at 8 (Table 1).
[146]2016 Annual Report at 3.
Provision is also made for voluntary members, that is, membership by an entity that is not required by s 128 of the Telecommunications Act to be a member of the TIO. Entities in this category can still apply to become a member if the entity is “otherwise considered by the Board to be appropriate for membership”.[147] During the Relevant Period, the TIO received one application from an entity to become a voluntary member. This application was approved by the Board. This particular entity applied to join the TIO scheme in order to meet the requirements of a statutory agency, the Telecommunications Universal Service Management Agency (“the TUSMA”). No other entity has applied to become a voluntary member during the Relevant Period.[148]
[147]Constitution, [6.1(a)(iii)] (Exhibit GNH-10 to the Neville-Hill affidavit).
[148]Jones affidavit, [70].
Consistently with its prime focus of dispute resolution and closely associated allied functions, the TIO does not provide any membership benefits such as social functions or member discounts to third party goods or services. Neither does the TIO advocate for its members.[149]
[149]Jones affidavit, [71].
TIO funding
Funding structure
The TIO is a “not-for-profit organisation that is funded by telecommunications providers, who are required by law to be members of and provide funding to the scheme”.[150] Moreover, it is a “cost-recovery organisation”, in that it seeks to recover the costs of its operations from the fees paid by its members, but it does not seek to make a profit.[151]
[150]2016 Annual Report at 25.
[151]Dell’Oste affidavit, [9].
The TIO funding model is encapsulated in its fee structure, which has remained substantially the same throughout the Relevant Period. In essence, the TIO charges a fee to a carrier when one of its customers makes a complaint to the TIO. Each complaint is charged to the carrier—this is the member—in two components—volume fees and operational fees.[152] The fees escalate as a dispute progresses through the charging levels—that is Levels 1 to 4[153]—as a result of the progression of the complaint to a level of dispute resolution requiring more resources.[154]
[152]Dell’Oste affidavit, [10].
[153]2008 Annual Report at 19 (Table 2).
[154]Dell’Oste affidavit, [11].
Volume fees
The volume fees are outlined in the TIO submissions, as follows:[155]
(a)represent the TIO’s “costs directly related to dispute resolution”;[156]
(b)“are set at the beginning of each financial year, and aim to recover the costs of dispute resolution based upon predicted complaint demand. There are 4 levels of complaint classification during the complaint/case resolution process – these levels reflect the potential stages of complaint management. The total charge … [for] a complaint is the sum of the charges levied at each stage that the case progresses through”;[157] and
(c)were in 2015–16, by way of example, $44 for each referral (i.e. a “Level 1” complaint) and $415 for each conciliation (a “Level 2” complaint), exclusive of GST.[158]
[155]Outline of Submissions of the Applicant (12 December 2016), [113].
[156]Telecommunications Industry Ombudsman—Funding Model Review—Issues Paper at 7 (Exhibit GD2 to the Dell’Oste affidavit) (“TIO Funding Model Review Issues Paper”).
[157]TIO Funding Model Review Issues Paper at 7.
[158]Dell’Oste affidavit, [12(c)].
The TIO “records the number of cases at each level for each member, and multiplies these numbers by the relevant volume fee to determine the total volume fees to be paid”.[159]
[159]TIO Funding Model Review Issues Paper at 7.
Operational fees
In respect of the operational fees, they are explained in the TIO submissions as follows:[160]
(a)the operational fees ‘recover all TIO costs not directly related to dispute resolution … and also include accommodation, utilities, administrative and project costs’;[161]
(b)the TIO’s ‘operational costs are recovered from members who paid volume fees based on their proportion of the total volume fees paid by all members in a given period. For example, if a member incurred $10,000 in volume fees of the TIO’s total $100,000 in volume fees for that period, in addition to volume fees [the member] would incur an operational fee equivalent to 10% of the TIO’s total operational costs in that period’;[162]
(c)by way of example, in November 2015, ‘the operational fees associated with each referral (Level 1) and conciliation (Level 2) were $86.10 and $812.11 respectively (exclusive of GST)’;[163] and
(d)‘the total TIO operational costs that must be recovered throughout the year are determined through the TIO Board’s annual business planning process (our annual budget), undertaken immediately prior to the start of each financial year and adjusted quarterly based upon complaint demand’.[164]
[160]Outline of Submissions of the Applicant (12 December 2016), [115].
[161]TIO Funding Model Review Issues Paper at 7.
[162]TIO Funding Model Review Issues Paper at 8.
[163]Dell’Oste affidavit, [15(c)].
[164]TIO Funding Model Review Issues Paper at 8.
TIO staff
As indicated a number of times thus far, the core function of the TIO is dispute resolution. Every staff member is involved in dispute resolution, in a direct and, or alternatively, supporting way. At induction, every staff member receives basic, high level training on the TIO’s jurisdiction, its complaint handling process and methods, and how it characterises complaints in order to report on complaint types and issues.[165] A majority of the TIO’s staff work directly on dispute resolution. Some staff members are in “flex” roles (“the flex staff”), in that they normally work in a supporting role—for example in administration—but are directly involved in dispute resolution from time to time as the need arises—for example, during periods of high demand and/or during holiday periods.[166]
[165]Carmody affidavit, [37].
[166]Carmody affidavit, [20].
During the Relevant Period, the percentage of staff members who work directly on dispute resolution is in excess of 70%.[167] There are different levels of training provided depending upon the roles of each staff member. Only people who are employed within the Dispute Resolution Group and the flex staff receive additional specialist training in dispute resolution processes, including how to log a complaint using keywords relevant to that complaint.[168]
[167]Carmody affidavit, [21]–[3] (full time employee hours over relevant period).
[168]Carmody affidavit, [38].
The TIO is committed to employing dispute resolution staff who are suitably skilled to provide a fair and effective resolution of the complaints received by the TIO.[169] As submitted by the TIO, the evidence is that it provides its dispute resolution staff with training in alternative dispute resolution methodologies and practice; contract, consumer, administrative and common law; telecommunications technology and the industry; case and caseload management; advanced verbal and written communication skills; service delivery to a diverse Australian population, including CALD consumers, and vulnerable and challenging consumers.[170] Staff in non-dispute resolution roles have the opportunity to learn how to deal with complaints by training to become a member of the flex staff. All staff are encouraged to be members of the flex staff to assist during peak times when consumer complaints build up, such as after the Christmas and Easter holiday breaks.[171]
[169]Carmody affidavit, [39].
[170]2016 Annual Report at 6; and see also 2008 Annual Report at 22 in relation to training arranged by the TIO “to help investigative staff deal with complaints that involve cognitive capacity issues”.
[171]Carmody affidavit, [40].
TIO’s website
The TIO’s website is populated with information about the telecommunications industry and the TIO’s role in and with respect to it. By way of example, the public can find out about how to lodge a complaint and download the complaint form free of charge. In addition, much of the TIO’s work, including its submissions and publications, can be accessed via the website by the public free of charge.[172] The website is designed to make the TIO accessible, which is in line with the Benchmarks.[173]
[172]Jones affidavit, [74].
[173]Jones affidavit, [75].
There is also a Members Portal section of the website, which can be accessed by the TIO’s members only. This section allows members to access their TIO invoices. A learning tool is also offered by TIO, which is known as the Members Online Education Portal, which provides more information about the TIO, and a guide to customer service and complaint handling.[174]
[174]Jones affidavit, [77].
TIO’s relationship with regulatory bodies
ACMA
TIO submits that it is not a regulator. One of the hallmarks of this position, it is said, is that the TIO has the power to make “binding”[175] decisions, but does not have the power to enforce compliance with those decisions.[176] Rather, the telecommunications industry regulator is the ACMA. The TIO has a memorandum of understanding (“MOU”) with the ACMA, under which the parties agree to share information about complaint trends and issues, and about non-compliance with TIO decisions. The TIO can refer a service provider to the ACMA if the provider does not comply with the Ombudsman’s decision on a complaint, or if an eligible carriage service provider is operating without being a TIO member.[177]
[175]See above, [18] and the footnote reference to the Viper case.
[176]Jones affidavit, [78].
[177]Jones affidavit, [79]; and see also the MOU between the ACMA and the TIO (exhibit JJ-27 to the Jones affidavit).
ACCC
The TIO also has an MOU with the ACCC. Pursuant to this MOU, the ACCC and the TIO are to co-operate “to facilitate liaison, collaboration, assistance and the exchange of intelligence and information” (clause 1.1). The parties agree to “assist each other in the exchange of information, the referral of matters and to co-operate on compliance, education and enforcement activities within the framework” of the MOU (clause 2.3).[178]
[178]Jones affidavit, [82]–[3]; and see also the MOU between the ACCC and the TIO (exhibit JJ-28 to the Jones affidavit).
Basis of assessment of TIO purpose
The Commissioner contends that the evidence upon which the Court should rely for the purpose of determining the purpose of the TIO is, and is confined to, the provisions of the Memorandum and Articles of Association of the TIO and the Constitution of the TIO.
With reference to the Memorandum of Association, the Commissioner draws attention to cl 2; the objects. Clause 2 is in the same terms as cl 3 of the Constitution, which has been set out above.[179] In addition to the provisions of cl 2 of the Memorandum of Association, the Commissioner relies upon cl 3.1 of the July 2013 Constitution of the TIO, which, the Commissioner says, speaks to its functions and is to similar effect to cl 2 of the Memorandum of Association. Clause 3.1 provides as follows:[180]
[179]See above, [39].
[180]TIO Constitution (1 July 2013) (Exhibit GNH-4 to the Neville-Hill affidavit).
3.1 The functions of the TIO are:
(1)to investigate, make determinations relating to, and give directions relating to, complaints about
a.carriage services; and
b.billing by members for the supply of content services provided by means of a carriage service,
by end-users of those services.
(2)to exercise any function conferred on the TIO by an industry code or industry standard in relation to any member of the Telecommunications Industry Ombudsman Limited including in the case of an industry code where the member has undertaken to comply with it or, if the code has been registered by the Australian Communications and Media Authority, has been directed by the Australian Communications and Media Authority to comply with the Code; and
(3)to exercise any other functions conferred on the TIO under any legislation, including for example the power to issue a written certificate stating that a specified carriage service provider has contravened a “Customer Service Guarantee” standard set by the Australian Communications and Media Authority and setting out particulars of the contravention, or the power to approve guidelines for the interception of telecommunications by a carrier;
(4)to investigate, make determinations relating to, and give directions relating to, complaints by owners or occupiers of land:
(i)in respect of which a carrier has exercised its statutory powers, other than complaints in relation to the policy or commercial decision of a carrier to exercise its statutory rights in relation to that particular land; or
(ii)arising from the use of the land by a carrier, under a contract between that carrier and the owner or occupier of that land.
By way of example, the TIO’s functions include to receive, to investigate and to facilitate the resolution of:
(a)complaints about billing, or the manner of charging, for the supply of carriage services;
(b)complaints as to the provision or supply of (or the failure to provide or supply) carriage services by a member, other than complaints in relation to the general telecommunications policy or commercial practices of a member;
(c)such other complaints as may, by agreement with the complainant, be referred to the TIO by a member.
The Commissioner observes that the Constitution also makes provision for the operation of the scheme.
The Commissioner contends that none of the affidavit evidence or the exhibited materials relied upon by the TIO, including the expert evidence, will assist the Court to resolve the Commissioner’s two contentions, to which reference has already been made.[181] At most, the Commissioner says, that evidence sets out some background information and confirms that the activities of the TIO are consistent with Part 6 of the Telecommunications Act, with the objects as stated in the Memorandum and Articles of Association, and with the functions stated in the Constitution. As is observed in these reasons, the Commissioner does not, however, challenge this evidence by and on behalf of the TIO or otherwise seek to rebut it.
[181]See above, [3].
On this basis, the Commissioner contends that:
(a)the purpose of the TIO is to operate and administer the scheme for the investigation and determination of complaints about telecommunications carriage services, which scheme is required, and provided for, by Pt 6 of the Telecommunications Act; and
(b)on the authority of the Law Institute of Victoria Case,[182] which confirmed that the decision in the General Nursing Council Case[183] remains good law in Victoria,[184] that purpose is not a charitable purpose.
[182]Law Institute of Victoria v Commissioner of State Revenue (2015) 101 ATR 899.
[183]General Nursing Council for England and Wales v St Marylebone Borough Council [1959] AC 540.
[184]Law Institute of Victoria v Commissioner of State Revenue (2015) 101 ATR 899 at 929 [144].
The first contention made by the Commissioner is said to be by reference to Part 6 of the Telecommunications Act, the TIO’s Memorandum and Articles of Association and the TIO’s Constitution. In this context, the Commissioner refers to the TIO contention that its purpose—the TIO says its “dominant purpose”—[185]is “to provide a free, independent dispute resolution service to residential and small business consumers of telecommunications services, which is an essential service”. As to this, the Commissioner says that, in truth, there is no real difference between these two statements of purpose. The Commissioner also says that the TIO’s statement of purpose simply seeks to describe the scheme—particularly by reference to the matters identified in s 128(1) of the Telecommunications Act and the Benchmarks—and to emphasise that description of the scheme. However, the Commissioner contends that the description does not deny the statutory and regulatory context of the scheme. In other words, the gravamen of the Commissioner’s submission is that the purpose and functions of the TIO are merely part of a regulatory scheme which, on the authorities, is not a charitable purpose.
[185]Outline of Submissions of the Applicant (12 December 2016), [138].
The Commissioner’s second contention is made by reference to the principles said to be identified in the Law Institute of Victoria Case and in the General Nursing Council Case. The Commissioner contends that the principles identified in those cases are applicable in the present case. More particularly, the Commissioner says that the TIO is part of a regulatory scheme established by statute for the telecommunications industry in Australia. That the TIO is but part of the regulatory scheme is, the Commissioner contends, confirmed by, for example, the Memorandum of Understanding between the TIO and the ACMA, which provides for the referral of matters by the ACMA to the TIO (cl 13), the referral of matters by the TIO to the ACMA (cll 15-16), and the need to avoid duplication and ensure “consistency of advice and complaint resolution outcomes” as between the TIO and the ACMA (cl 22). Moreover, the Commissioner contends that the TIO is expressly recognised in the Telecommunications Act and that the scheme it operates is required by statute and the Telecommunications Act mandates the contents of the scheme. Participants in the industry, the Commissioner says, are obliged to be members of the scheme and to comply with the scheme, and that the functions undertaken by the TIO to investigate and resolve complaints are administrative and are carried out under statutory authority.
In Construction Industry Training Board v Attorney General,[330] the Board—a statutory body exercising statutory power—was held by the Court of Appeal to be a “an institution … established for a charitable purpose”. The Board was established by statutory instrument made under the English Industrial Training Act 1964.[331] Its functions, as set out in that Act, were to make provision for the training of persons employed or to be employed in the construction industry and for research into matters relating to such training.[332] Like the TIO, the Board received industry funding—from employers in the construction industry by way of levies.[333] However, unlike the TIO, the Board was subject to ministerial control with regard to financial grants, investment of moneys, approval of proposals to carry out its functions, amendments or revocation of orders under the Act and the winding up of training boards set up under the Act.[334] In addition:
(a)the Board was “obliged to give the Minister all information required by him as to the exercise of its functions”;[335]
(b)the Board was required “to keep proper accounts and records in form approved by the Minister”;[336]
(c)in certain circumstances, the Minister could cause “all members of the board [to] vacate office”;[337] and
(d)“[m]embers [of the Board were] appointed by the Minister. The chairman and deputy chairman [were] … paid by the board such remuneration as the Minister may from time to time approve. An industrial training order may make provision with respect to the tenure of office of board members, and to its procedures”.[338]
Despite the Board being a statutory body that was subject to a high degree of statutory control; and exercising statutory power, the Court of Appeal held unanimously that the Board was “an institution … established for a charitable purpose”.[339]
[330]Construction Industry Training Board v Attorney General [1973] 1 Ch 173.
[331]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 182.
[332]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 173, citing s 2(1) of the Industrial Training Act.
[333]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 182.
[334]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 175, citing ss 4, 5, 7, 9 of the Industrial Training Act. Cf the TIO Constitution, for example, at clause 23.2(c) in respect of its winding up clause (exhibit GNH-10 to the Neville-Hill Affidavit).
[335]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 182, citing s 2(6) of the Industrial Training Act.
[336]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 182, citing s 8 of the Industrial Training Act.
[337]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 182, citing s 7 of the Industrial Training Act.
[338]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 183, citing the Schedule to the Industrial Training Act.
[339]Construction Industry Training Board v Attorney General [1973] 1 Ch 173 at 178 (Russell LJ), 187 (Buckley LJ), 188 (Plowman J).
Thus, the TIO submits it follows that, being a statutory body or exercising statutory power (or, in the case of the TIO, having some aspects of the scope of the Scheme it administers being dictated by statute, as is those who must join that Scheme), is no bar to having a dominant charitable purpose.
The TIO also provides some examples of statutory bodies exercising statutory power which have been found to be charitable:
(a)the Trustees of the Crystal Palace Trust, “who were incorporated by the Crystal Palace Act 1914”[340] and were entrusted with “the entire control and management of the [Crystal Palace] and the park [of some 200 acres]” under that Act;[341] and
(b)the New Zealand Council for Law Reporting, which was “incorporated and reconstituted”[342] under the New Zealand Council of Law Reporting Act 1938 and whose statutory function under that Act was the publication and sale of law reports.[343]
The TIO also notes that the Victorian Council of Law Reporting was established under the Council of Law Reporting in Victoria Act 1967. In addition, the TIO notes that in Central Bayside,[344] the High Court rejected the Commissioner’s contention that the company was precluded from being a charitable body because “it acted so much under the control or influence of government that it could be seen to be acting in furtherance of government objectives rather than, or as well as, in the independent performance of its own objects”.[345] Callinan J held, “many of governments’ policies, particularly in modern times, are directed to what would undoubtedly be charitable purposes if they were undertaken by non-government bodies”.[346]
[340]Crystal Palace Trustees v Minister of Town and Country Planning [1951] Ch 132 at 136 (“Crystal Palace”).
[341]Crystal Palace Trustees v Minister of Town and Country Planning [1951] Ch 132 at 132.
[342]Commissioner of Inland Revenue v New Zealand Council for Law Reporting [1981] 1 NZLR 682 at 683.
[343]Commissioner of Inland Revenue v New Zealand Council for Law Reporting [1981] 1 NZLR 682 at 685.
[344]Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168.
[345]Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168 at 101–1, [23].
[346]Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168 at 230, [185].
Thus, the TIO submits, and in my view correctly having regard to the cases and examples considered, that its being a statutory body—to the extent that is a proper characterisation[347]—does not detract from the TIO having a charitable purpose and nor does the fact that its purpose is in line with government policy.
[347]But, see above, [17].
Additionally, the TIO submits that its corporate structure does not affect whether its dominant purpose is charitable.[348] This is said to be because the test in the first limb in s 48(1) of the PT Act concerns “dominant purpose”. The TIO is incorporated, as were, for example:
(a)ICLRQ,[349] which was held by the High Court to be a charitable institution;[350] and
(b)ICLR for England and Wales,[351] which was held by the Court of Appeal to have objects that were exclusively charitable.[352]
In Tasmanian Electronic Commerce Centre Pty Ltd v Commissioner of Taxation,[353] the company was owned jointly by the Tasmanian Government and the University of Tasmania. The Tasmanian Government applied for funding for the company from a fund established by the Federal Government. The main object of the company was to provide research and development facilities to help the Tasmanian business community adopt electronic commerce and to compete in the international marketplace. The Federal Court held that the company was a charitable institution.
[348]Central Bayside General Practice Association Ltd v Commissioner of State Revenue (2006) 228 CLR 168 at 185 [40]–[1] and 214, [143]–[4].
[349]Incorporated under The Companies Acts 1863 to 1896 (Qld), see Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation (1971) 125 CLR 659 at 661.
[350]Incorporated Council of Law Reporting of the State of Queensland v Federal Commissioner of Taxation (1971) 125 CLR 659.
[351]Incorporated under the Companies Acts 1862 and 1867, see Incorporated Council of Law Reporting for England and Wales v Attorney General [1972] Ch 73 at 83.
[352]Incorporated Council of Law Reporting for England and Wales v Attorney General [1972] Ch 73.
[353]Tasmanian Electronic Commerce Centre Pty Ltd v Commissioner of Taxation (2005) 142 FCR 371.
For those reasons advanced by the TIO and on the basis of the authorities the TIO relies upon, I accept that its corporate structure does not affect whether its dominant purpose is charitable.
Extent of wages affected by charitable purpose status of the TIO
These issues arise with respect to the second limb of s 48(1) of the PT Act and the characterisation of the extent to which wages can be said to be paid to persons “engaged exclusively in work of a … charitable … nature for the … non-profit organisation” (s 41(1)(b)).[354]
[354]See above, [2].
The TIO submits all the wages paid to its employees during the Relevant Period were to persons engaged exclusively in work of a charitable nature for the TIO. During the Relevant Period, it says that all of the TIO staff were involved in work of a charitable nature on the basis that all of the activities of the TIO were related to its charitable purpose of providing a free, independent dispute resolution service in respect of an essential service. Moreover, to the extent that the TIO staff were involved in activities that may not be considered intrinsically charitable—such as administrative support—the activities were “charitable in character because they were carried out in furtherance of a charitable purpose”.[355]
[355]Commissioner of Taxation v Word Investments Ltd (2008) 236 CLR 204 at 220–1, [26].
An alternative argument put by the TIO is that, during the Relevant Period, to the extent that the TIO staff were involved in any activities that were not appropriately characterised as being in pursuance of a charitable purpose—such as administrative support—such activities were:
(a)purely incidental[356] to its dominant charitable purpose of providing a free, independent dispute resolution service in respect of an essential service; and/or
(b)an “essential [or]… necessary part” of the TIO’s “principal activities”.[357]
[356]Or “at least… sufficiently incidental”, see Ngurratjuta Pmara/Ntjarra Aboriginal Corporation v Commissioner of Taxes (2000) ATR 217 at 223 [39] ("Ngurratjuta”). This decision concerned a public benevolent institution and was upheld on appeal in Ngurratjuta Pmara/Ntjarra Aboriginal Corporation v Commissioner of Taxes (2001) 47 ATR 257 (which was overruled in Tourism Holdings Australia Pty Ltd v Commissioner of Taxes (NT) (2005) 59 NTLR 80 but only with respect to evidence).
[357]Ngurratjuta Pmara/Ntjarra Aboriginal Corporation v Commissioner of Taxes (2000) ATR 217 at 223, [26] and 224, [39].
Having regard to the position reached with respect to the TIO’s purpose as being charitable, it follows, in my view, on the basis of these submissions by the TIO, submissions which were not challenged significantly or at all by the Commissioner, that the second limb of s 48(1) is satisfied and that, consequently all wages paid by the TIO to its staff are exempt wages under those provisions.
Conclusions
For the preceding reasons:
(1)The TIO’s appeal against the Determination dated 30 April 2014 is allowed and the Determination overturned;
(2)the amount of payroll tax overpaid and such other amount as may be determined be refunded by the Commissioner to the TIO, together with interest, costs and such further orders as may be necessary.
The parties are to bring in orders to give effect to these reasons.
I reserve both the question of costs and the determination of payroll tax to be refunded by the Commissioner to the TIO.
ANNEXURE A
Part 6—The Telecommunications Industry Ombudsman
126Simplified outline
The following is a simplified outline of this Part:
•Certain carriers and carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.
•The membership of the scheme must be open to all carriers and carriage service providers.
•Carriers and carriage service providers must comply with the scheme.
127Eligible carriage service providers
For the purposes of this Part, an eligible carriage service provider is:
(a)a carriage service provider who supplies:
(i)a standard telephone service, where any of the customers are residential customers or small business customers; or
(ii)a public mobile telecommunications service; or
(iii)a carriage service that enables end‑users to access the internet; or
(b)a carriage service intermediary who arranges for the supply of a service referred to in subparagraph (a)(i), (ii) or (iii).
128Telecommunications Industry Ombudsman scheme
(1)Each carrier and each eligible carriage service provider must, in association with other carriers and other eligible carriage service providers, enter into a scheme providing for a Telecommunications Industry Ombudsman.
Note:Section 129 provides for exemptions from subsection (1) of this section.
(2)The scheme is to be known as the Telecommunications Industry Ombudsman scheme.
(3)To avoid doubt, there is only one Telecommunications Industry Ombudsman scheme, namely, the scheme operated by Telecommunications Industry Ombudsman Limited (ABN 46 057 634 787).
(4)The scheme must provide for the Telecommunications Industry Ombudsman to:
(a)investigate; and
(b)make determinations relating to; and
(c)give directions relating to;
complaints about carriage services by end‑users of those services.
(4A)An end‑user of a carriage service is not liable to pay any fee or charge (however described) to the provider of the carriage service in respect of a complaint made by the end‑user about the carriage service.
(5)The following is an example of such a complaint: a complaint about billing, or the manner of charging, for the supply of carriage services.
(6)The scheme must not provide for the Telecommunications Industry Ombudsman to investigate complaints about:
(a)the levels at which tariffs charged for the supply of carriage services are set; or
(b)the content of a content service.
(7)The membership of the scheme must be open to all:
(a)carriers; and
(b)carriage service providers.
(8)The scheme must comply with any standards determined under subsection (9).
(9)The Minister may, by legislative instrument, determine standards for the purposes of subsection (8).
(10)In making a determination under subsection (9), the Minister must have regard to the following matters:
(a)accessibility;
(b)independence;
(c)fairness;
(d)accountability;
(e)efficiency;
(f)effectiveness;
(g)such other matters (if any) as the Minister considers relevant.
(11)Before making a determination under subsection (9), the Minister must consult:
(a)the Telecommunications Industry Ombudsman; and
(b)the ACMA.
129Exemptions from requirement to join scheme
(1)The ACMA may, by writing, declare that a specified carrier or eligible carriage service provider is exempt from the requirement set out in subsection 128(1). The declaration has effect accordingly.
Note:Carriers or providers may be specified by name, by inclusion in a particular class or in any other way.
(2)In deciding whether a carrier or provider should be exempt from the requirement set out in subsection 128(1), the ACMA must have regard to the following matters:
(a)the extent to which the carrier or provider deals with residential customers in relation to the supply of carriage services;
(b)the extent to which the carrier or provider deals with proprietors of small businesses in relation to the supply of carriage services;
(c)the potential for complaints under the Telecommunications Industry Ombudsman scheme about services supplied by the carrier or provider.
(3)Subsection (2) does not, by implication, limit the matters to which the ACMA may have regard.
(4)Before making a declaration under this section, the ACMA must consult the Telecommunications Industry Ombudsman.
(5)The ACMA must publish a copy of a declaration under this section on the ACMA’s website.
(6)A declaration under this section is not a legislative instrument if:
(a)the declaration specifies a carrier by name; or
(b)the declaration specifies an eligible carriage service provider by name.
(7)A declaration under this section is a legislative instrument if:
(a)the declaration specifies a class of carriers; or
(b)the declaration specifies a class of eligible carriage service providers.
130Direction to join scheme
(1)The ACMA may give a carriage service provider a written notice directing the provider to enter into the Telecommunications Industry Ombudsman scheme.
(2)The provider must comply with the direction.
(3)In deciding whether to give a direction to a provider under this section, the ACMA must have regard to the following matters:
(a)the extent to which the provider deals with residential customers in relation to the supply of carriage services;
(b)the extent to which the provider deals with proprietors of small businesses in relation to the supply of carriage services;
(c)the potential for complaints under the Telecommunications Industry Ombudsman scheme about the services supplied by the provider.
(4)Subsection (3) does not, by implication, limit the matters to which the ACMA may have regard.
(5)Before giving a direction under this section, the ACMA must consult the Telecommunications Industry Ombudsman.
131Determination that a class of carriage service providers must join scheme
(1)The ACMA may, by legislative instrument, determine that the members of a specified class of carriage service providers must enter into the Telecommunications Industry Ombudsman scheme.
(3)In deciding whether to make a determination under this section in relation to a class of carriage service providers, the ACMA must have regard to the following matters:
(a)the extent to which members of that class deal with residential customers in relation to the supply of carriage services;
(b)the extent to which members of that class deal with proprietors of small businesses in relation to the supply of carriage services;
(c)the potential for complaints under the Telecommunications Industry Ombudsman scheme about services supplied by members of that class.
(4)Subsection (3) does not, by implication, limit the matters to which the ACMA may have regard.
(5)Before making a determination under this section, the ACMA must consult the Telecommunications Industry Ombudsman.
132Members of scheme must comply with scheme
A carrier or carriage service provider who is a member of the Telecommunications Industry Ombudsman scheme must comply with the scheme.
133Register of members of scheme
(1)The Telecommunications Industry Ombudsman is to maintain a Register of the names of the members of the Telecommunications Industry Ombudsman scheme.
(2)The Register may be maintained by electronic means.
(3)The Telecommunications Industry Ombudsman must ensure that the Register is open for inspection, at all reasonable times, by members of the public.
133AReviews of the Telecommunications Industry Ombudsman scheme
(1)The Telecommunications Industry Ombudsman must cause to be conducted reviews of the operation of the Telecommunications Industry Ombudsman scheme.
Timing of reviews
(2)The first review must be completed within 3 years after the commencement of this section.
(3)Each subsequent review must be completed within 5 years after the completion of the previous review.
Independent reviews
(4)A review must be conducted by a person or body who is independent of:
(a)the Telecommunications Industry Ombudsman; and
(b)the telecommunications industry.
Consultation
(5)A review must make provision for:
(a)public consultation; and
(b)consultation with:
(i)the Telecommunications Industry Ombudsman; and
(ii)the ACMA.
Report of review
(6)The person or body conducting a review must:
(a)prepare a report of the review; and
(b)give the report to the Telecommunications Industry Ombudsman.
(7)The Telecommunications Industry Ombudsman must:
(a)give a copy of the report to the Minister; and
(b)publish the report on the Telecommunications Industry Ombudsman’s website.
Response to recommendations in report
(8)If a report of a review sets out one or more recommendations to the Telecommunications Industry Ombudsman, the Telecommunications Industry Ombudsman must, within 6 months after receiving the report:
(a)prepare a statement setting out the Telecommunications Industry Ombudsman’s response to each of the recommendations; and
(b)publish a copy of the statement on the Telecommunications Industry Ombudsman’s website; and
(c)give a copy of the statement to the Minister.
Completion of review
(9)For the purposes of this section, a review is completed when the report of the review is given to the Telecommunications Industry Ombudsman.
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