Telstra Corp Ltd v Optus Communications Pty Ltd & Anor Optus Communications Pty Ltd & Anor v Telstra Corp Ltd

[1997] FCA 501

TELSTRA CORPORATION LIMITED v. OPTUS COMMUNICATIONS PTY LIMITED and OPTUS NETWORKS PTY LIMITED
No. VG585 of 1995
OPTUS COMMUNICATIONS PTY LIMITED and OPTUS NETWORKS PTY LIMITED v. TELSTRA CORPORATION LIMITED
No. VG638 of 1995
FED No. 501/97
Number of pages - 29
Telecommunications

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

MANSFIELD J

Telecommunications - tariff lodged by Telstra under s 190 Telecommunications Act 1991 - tariff contained provision for various pricing plans - certain Telstra pricing plans provide for discount on services upon payment of small monthly fee - certain pricing plans provide for discount on services upon reaching specified monthly expenditure levels - s 183 of Act assumed to apply so as to prohibit discrimination in charges or terms of supply of telecommunications services - s 185 permits discrimination if supply under 'legitimate charging option' - requirement for supply of services to be available to all customers who use or may use services on same terms and conditions - whether services supplied under pricing plans 'available to all' on same terms and conditions - meaning of "available" in s 185(2C) - declarations made that each pricing plan under consideration a legitimate charging option.

Telecommunications Act 1991 ss 3, 136, 173, 183, 185, 185(2B), 185(2C) and 238A

Telecommunications Amendment Act 1994

Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 137 ALR 138

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421

MELBOURNE, 21-25 October 1996 (hearing), 11 June 1997 (decision)

#DATE 11:6:1997, ADELAIDE

#ADD 13:6:1997

Counsel for Dr C Jessup QC with him

Telstra Corporation Limited: Mr C Maxwell

Solicitors for Mallesons Stephen Jaques

Telstra Corporation Limited:

Counsel for Mr C Canavan QC

Optus Communications Pty Limited with him

and Optus Networks Pty Limited: Mr S Gageler

Solicitors for Herbert Geer & Rundle

Optus Communications Pty Limited as agents for

and Optus Networks Pty Limited: Gilbert & Tobin

Counsel for AUSTEL: Mr D Shavin QC

(Amicus Curiae) with him Ms P Tate

Solicitors for AUSTEL: Australian Government Solicitor

(Amicus Curiae)

THE COURT ORDERS THAT:

1. The telecommunications services supplied by Telstra pursuant to the STD Weeknight Saver Flexi-Plan are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991. 2. The telecommunications services supplied by Telstra pursuant to the IDD Everyday Saver Flexi-Plan are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991. 3. The telecommunications services supplied by Telstra pursuant to the Family and Friends Flexi-Plan are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991. 4. The telecommunications services supplied by Telstra pursuant to the Long Distance Saver 4 Flexi-Plan are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991. 5. The telecommunications services supplied by Telstra pursuant to the Country Specific Flexi-Plan (Greece) are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991. 6. The telecommunications services supplied by Telstra pursuant to the STD Select Saver Flexi-Plan are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991. 7. The telecommunications services supplied by Telstra pursuant to the Business Saver Plus Flexi-Plan are supplied under a legitimate charging option within the meaning of s185(2B)(b) and (2C) of the Telecommunications Act 1991.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

MANSFIELD J

Introduction

1. This action involves consideration of Part 9 of the Telecommunications Act 1991 ("the 1991 Act") as amended in 1994 as set out herein so far as relevant, dealing with the supply of basic carriage services by telecommunications carriers, and in particular Division 4 of that Part of the Act which is headed "Prohibition of discrimination". Within that Division, s183, broadly speaking, prohibits a dominant carrier from discriminating in price or conditions of supply between acquirers of telecommunications services. Section 185 then permits of exceptions to the operation of s183, including in respect of "legitimate charging options" described in s185(2C).

2. The real issue in the case is whether certain charging options offered by Telstra Corporation Limited constitute legitimate charging options.

3. The matter has a complex legislative background and a slightly convoluted procedural history, including initially two separate proceedings. It is necessary to set out that history in a little detail to properly refine the issues. As there were two separate proceedings, for the sake of convenience I shall refer to Telstra Corporation Ltd as "Telstra", to Optus Communications Pty Ltd and Optus Networks Pty Ltd respectively as "Optus Communications" and "Optus Networks" and where it is unnecessary to separately consider them (as is mostly the case for the purposes of my decision) together as "Optus". In the course of the proceedings the Australian Telecommunications Authority was given leave to appear, and I shall refer to it as "AUSTEL" in the course of my judgment.

The legislative context

4. The emergence of competition in the telecommunications industry within Australia is of relatively recent origin.

5. The present legislative structure reflects the ongoing process of establishing a fully competitive telecommunications industry. That point has not yet been reached. It is desirable, for the purpose of considering the questions in issue, to have some understanding of the process as it reflects Government policy and planning.

6. The Australian Telecommunications Commission ("Telecom") was first established under the Telecommunications Act 1975, and became the Australian Telecommunications Corporation under the Australian Telecommunications Corporations Act 1989. OTC had first been established as the Overseas Telecommunications Commission under the Overseas Telecommunications Act 1946, and was converted into a public company, Government owned, by the OTC (Conversion into Public Company) Act 1988. Aussat Pty Ltd ("AUSSAT") was incorporated as a proprietary company in 1981. The Satellite Communications Act 1984 (later renamed the AUSSAT Act 1984) restricted AUSSAT's eligible shareholders to Telecom and to the Commonwealth, and limited the scope of its activities in a general way to those complementary to Telecom and OTC.

7. Until the Telecommunications Act 1989, the telecommunications industry within Australia operated under that regime, comprising the publicly owned triumvirate of Telecom, which had control of and responsibility for all aspects of domestic telecommunications services other than satellite services, OTC which had control of and supplied international telecommunications services, and AUSSAT which operated domestic satellite communications. Telecom both owned and controlled the domestic fixed network and provided access to the network and supplied a full range of telecommunications services over that network.

8. The Telecommunications Act 1989 commenced the process of freeing up the market. It created the Australian Telecommunications Authority (AUSTEL) and gave it overall responsibility for:

"economic and technical regulation of the Australian telecommunications industry, including, in particular, implementation of the Commonwealth Government's industry policies relating to telecommunications" (s18(a))

and general functions then of protecting carrier reservations, protecting competitors from unfair practices of carriers, protecting consumers from unfair practices, and promoting the efficiency of carriers, as well as technical regulation. It therefore became the regulator of the operational functions of the telecommunications industry, independent of Telecom. That Act also included provisions to facilitate competition but only outside the basic telecommunications network facilities and services, and to refocus the three primary providers towards a greater commercial discipline.

9. In November 1990, the Government announced a large number of key decisions directed to the further development of a competitive telecommunications industry in Australia, accompanied by the detailed statement entitled "Microeconomic Reform: Progress Telecommunications". The Bureau of Transport and Communications Economics publication "Telecommunications in Australia, Report 87" AGPS, January 1995 stated:

"The main goal of the recent Australian reforms is the creation of a globally competitive telecommunications industry. The strategy to achieve this goal is based on the introduction of genuine and sustainable network competition (initially through a network duopoly) and the creation of a world class telecommunications industry"

at xiv, and seriatim. That accords with all other evidence before me on that score. Those decisions included:

. the merger of Telecom and OTC into a single carrier providing domestic and international telecommunications services; . the establishment of a fixed network duopoly by the licensing of a private enterprise competitor; . the sale of AUSSAT to that private enterprise competitor; . the licensing of three mobile carriers; . the liberalisation of the resale of network capacity; . open competition in public access cordless telecommunications services; and . various competitive and consumer safeguards to promote the widespread development of competition and to protect the long term interests of consumers.

10. The further element of the Government's strategy was to produce or facilitate arrangements to foster industry development.

11. It also announced the intention to open up the telecommunications industry to unrestricted competition from 30 June 1997. The duopoly structure was only intended as a means of or as a process towards introducing greater network competition, rather than the end in itself.

12. It was in consequence of those decisions that the 1991 Act and related legislation was enacted. Further, in accordance with its plan for two licensed general carriers under the 1991 Act, AUSSAT was sold to Optus Communications. Optus Communications is the owner of all the issued shares in Optus Networks.

13. The 1991 Act, for present purposes, came into effect commencing on 1 July 1991. It provides the general regulatory framework for the provision of telecommunications facilities and services in Australia. At the same time the Australian and Overseas Telecommunications Corporation Act 1991 ("the AOTC Act") was enacted, having as its purpose that Australian and Overseas Telecommunications Corporation Limited ("AOTC") should take over the undertakings and assets of Telecom and OTC. On 13 April 1993 AOTC changed its name to Telstra Corporation Ltd. That legislation was accompanied by other Acts as part of the package of legislation and by the repeal of the Telecommunications Act 1989, the Australian Telecommunications Act 1989, the Overseas Telecommunications Act 1946, and by a suite of consequential amendments to other legislation: Telecommunications (Transitional Provisions and Consequential Amendments) Act 1991.

14. The 1991 Act provided in detail for AUSTEL's continued existence: s34, and its enhanced powers and functions as the telecommunications authority, for the licensing of telecommunications carriers and the identification of activities exclusively available to licensed telecommunications carriers, the regulation of the relationship between the carriers, the overall regulation of telecommunications services and technical regulation, including a specific mandate to promote competition. It does not itself provide for the duopoly. Part 5 "Licensing, And General Obligations, Of Carriers" provides for the grant of general telecommunications licenses and public mobile licenses without specifying a numerical limit for either general carriers or mobile carriers, defined as the holders of general telecommunications licenses and public mobile licenses respectively: s5. However, the planned duopoly was confirmed during the minister's Second Reading Speech when he said that:

"... the creation of one strong competitor is the best way of achieving genuine and sustainable network competition quickly ... (with the) aim to ensure that by 1997 there is a significant, recognised network competitor to Telecom - OTC". (Hansard, 7 May 1991, p3096)

15. Accordingly, to date and at least to 30 June 1997 there are only two general carriers under the 1991 Act. Part 6 of the Act preserves to general telecommunications carriers the exclusive rights to certain telecommunications facilities, satellite services and public mobile telecommunications services. Part 8 of the 1991 Act provides for the nature of the relationship between the general carriers, and Part 9 regulates the supply by carriers of basic carriage services (as defined in s174), including regulation of the terms and conditions of supply of telecommunications services by those carriers and the pricing processes and controls.

16. It is unnecessary to further review in detail the general structure and provisions of the 1991 Act. However, before referring to its later amendment and to the particular provisions directly under consideration, there are some additional features or provisions which may be relevant to the decision I am asked to make. The 1991 Act expresses the general objects of the Act: s3, to include:

"(i) creating a regulatory environment for the supply of telecommunications services which promotes competition and fair and efficient market conduct; and . . . (l) ensuring that all parts of the community benefit from lower prices for telecommunications facilities and services and from the future development of telecommunications networks."

17. At the commencement of Parts 5 and 6, ss55 and 89 respectively reinforce that general carriers are to be the primary providers of Australia's line based and satellite based telecommunications capacity and the primary suppliers of telecommunications services by the use of line links and satellite based facilities. At the commencement of Part 8, s136 provides:

"(1) The object of this Part is to promote the long-term interests of consumers of telecommunications services by: (a) promoting and protecting competition in the telecommunications industry generally and among carriers; and (b) enabling the carriers to compete with each other on an equal basis in providing telecommunications networks and supplying telecommunications services. (2) This object will be achieved by: (a) protecting each carrier from the misuse of market power by other carriers in relation to access to essential facilities or access to consumers; . . ."

And at the commencement of Part 9, which contains the section specifically under review in this action, s173 provides:

"It is the Parliament's intention: . . . (c) that, in relation to the supply of higher level services, there should be competition, on an equitable basis, among suppliers of such services (whether carriers or other persons); and (d) that, in order to promote competition in markets for telecommunications services, in a way that is orderly and consistent with the declaration in paragraph (a), AUSTEL should be empowered to require a carrier to unbundle basic carriage services progressively; and (e) that, in order to promote competition, and to reduce information-gathering costs to consumers of telecommunications services, the carriers should be required to prepare tariffs of the basic carriage services they supply; and (f) that a carrier that is in a position to dominate a market for telecommunications services should not abuse its market power by discriminating between persons who acquire such services in that market; . . ."

18. Section 183(1) of the 1991 Act provides, and provided from 1991:

"A carrier that is in a position to dominate a market for a particular kind of telecommunications service must not discriminate, between persons who acquire in that market telecommunications services of that kind, in relation to: (a) the charges for the services, or (b) the terms and conditions on which the services are supplied."

19. Section 185 then provided that s183 did not apply where the discrimination made only reasonable allowance for differences in the costs or likely costs of supplying services if those differences resulted from differences in quantities supplied, in sources or periods of supply, or in transmission capacity. That is, cost-justified differences only were allowed.

20. Section 185 was subsequently repealed and a fresh section introduced.

21. It may be significant to this matter, however, that Flexi-Plans of the same general kind as are now in issue were part of a tariff of Telstra prior to the Telecommunications Amendment Act 1994, and were the subject of challenge in those proceedings.

22. The 1991 Act created a structure for the approval of the tariffs proposed to be charged by a carrier for basic carriage services and/or their public inspection. Section 190 requires such a tariff to be lodged with AUSTEL, including describing the service and the nature and amounts of the charges payable for the services. In the case of a carrier in a position to dominate a market for a particular kind of basic carriage service, that carrier must charge in accordance with the tariff: s197; in the case of a non-dominant carrier, that carrier cannot charge more than the charges specified in the tariff: s198. Charging in accordance with the tariff must not result in contravention of s183: s190(10). AUSTEL then must very promptly consider the tariff, and may form the opinion that the proposed tariff does not comply with s190, including s190(10); if it forms that opinion, it may disallow the tariff: s191. Tariffs may be varied or revoked by a carrier, but any variation is subject to the same powers of AUSTEL: ss192 and 193. A carrier may only supply the basic carriage service to a consumer or client if a tariff is in force in respect of that service: s194. Copies of the tariff must be publicly available: s201.

23. The practical consequences of those provisions included that Telstra, by reason of the view which AUSTEL has formed about its market position (see below), must charge according to its tariff whilst Optus need not do so.

24. The final step in the legislative process which is of significance for present purposes is the Telecommunications Amendment Act 1994 ("the 1994 Act"). In particular, it substituted for the provisions of s185, which permitted only cost justified price discrimination, the following:

"(1) Neither of sections 183 and 184 apply if, at the time of the discrimination, there is in force a decision by AUSTEL under section 185A that the discrimination, or discrimination of that kind, should be permitted. (2) Subject to subsection (2A), neither of sections 183 and 184 apply if the carrier committing the discrimination has applied to AUSTEL for a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted. (2A) Subsection (2) does not apply, and is taken never to have applied, if AUSTEL notifies the carrier in writing that it refuses to make a decision under section 185A that the discrimination, or discrimination of that kind, should be permitted. (2B) Section 183 does not apply if: (a) the discrimination consists of: (i) supplying a telecommunications service to a customer on terms and conditions that differ from the terms and conditions on which services of that particular kind are supplied to other customers; or (ii) charging a customer for that service in a way that differs from the way in which other customers are charged for services of that particular kind; and (b) each of the services is supplied under a legitimate charging option (whether or not each of the services is supplied under the same legitimate charging option). (2C) For the purposes of paragraph (2B)(b), a telecommunications service is supplied by a carrier under a legitimate charging option if, at the time it is supplied, supply of the carrier's services of that particular kind on the same terms and conditions as the terms and conditions on which that service is supplied, is available to: (a) all, or all but an insubstantial minority of, customers to whom supply of those services is technically feasible; or (b) all, or all but an insubstantial minority of, business customers to whom supply of those services is technically feasible; or (c) all, or all but an insubstantial minority of, residential customers to whom supply of those services is technically feasible; or (d) all, or all but an insubstantial minority of, customers: (i) who are included in a class of persons that AUSTEL determines in writing to be a class of persons to whom this paragraph applies; and (ii) to whom supply of those services is technically feasible."

25. It introduced the concept of "legitimate charging options". It also enhanced the powers of AUSTEL to disallow tariffs if, in certain circumstances, it formed the view that a tariff in operation would be anti-competitive in any market for any telecommunications service: s238A. The most relevant provisions of that section state:

"(1) This section applies in relation to a tariff if: (a) a carrier is in a position to dominate a market for a particular kind of telecommunications service; and (b) that kind of telecommunications service is included in a tariff of the carrier. (2) If, in AUSTEL's opinion, the operation or continued operation of the tariff would be anti-competitive in any market for any telecommunications service, AUSTEL must give the carrier written notice stating that AUSTEL is disallowing all or any of the provisions of the tariff. . . . (14) For the purposes of this section, the operation or continued operation of a tariff is taken to be anti-competitive in a market if and only if: (a) the operation or continued operation of the tariff, or provisions of the tariff; or (b) the operation or continued operation of the tariff, or provisions of the tariff, in conjunction with other tariffs or commercial arrangements; has, or is likely to have, the effect of materially and adversely affecting the development and/or maintenance of commercially sustainable competition in that market."

Subsections (3)-(13) prescribe procedural steps for the making of such a decision.

26. It will be necessary to consider those provisions, including in particular the amendments effected by the 1994 Act, for the purposes of determining this matter. It will also be desirable to have regard to certain aspects of the Parliamentary debates for that purpose.

27. It is first necessary to turn briefly to the nature of the proceedings now before the Court, and to make the necessary findings of fact, so that the issues are appropriately identified and confined, and the legislation considered in relation to the particular relevant facts.

28. I have referred at some length to that legislative history, because in considering the matters in issue, it is important to recognise that the structure of the telecommunications industry under the legislation, at present in the progressive process of conversion to a fully competitive industry, and the amendments effected by the 1994 Act, should be construed so as to reflect that process rather than the reverse, and because the Court is of course directed by s15AA of the Acts Interpretation Act 1901 to prefer a purposive construction where appropriate. In the 1991 Act, as has been noted above, there is both a general statement of the intention of the legislation: s3, and specific purpose statements relevant to matters in issue: ss136 and 173.

29. Hereafter, I shall call the 1991 Act as amended by the 1994 Act as "the Act" and shall refer to those two Acts separately only as necessary.

The nature of the proceedings

30. Telstra is, and has been since 25 November 1991, a holder of a general telecommunications licence under the Act. Optus Networks (as the wholly owned subsidiary of Optus Communications) changed its name from AUSSAT Pty Ltd, once acquired by Optus Communications, and is and has been since 22 November 1991 also the holder of a general telecommunications licence under the Act. Both Telstra and Optus carry on business in Australia as suppliers of telecommunications services including:

a) international long distance services; b) domestic long distance services; c) telephone access and local call services; d) leased line services; and e) virtual private network services.

31. In addition, both Telstra and Optus have been issued with a public mobile licence. The third public mobile licence has been issued to Vodafone Ltd.

32. Pursuant to s190 of the Act, Telstra has from time to time since 1991 lodged with AUSTEL tariffs or variations to tariffs for charges for basic carriage services, one of which was known as the Strategic Partnerships tariff. In November 1992 AUSTEL determined not to disallow that tariff under the 1991 Act. It was a tariff which included the proposal that Telstra could enter into a Strategic Partnership Agreement between itself and individual customers on the basis that the tariff involved cost-justified discriminatory pricing options, allowable under the then current s185 of the 1991 Act. As a consequence, Telstra proceeded to enter into a number of Strategic Partnership Agreements with many of its larger customers. Such agreements effectively involved agreement between the customer and Telstra, under which the customer agreed to purchase a specified level of basic carriage services over an agreed term, and Telstra agreed to provide those services at a discount from its standard charges. They were individually negotiated agreements. The discount agreed upon varied in accordance with the tariff, depending on the services to be provided and the term of the agreement. In addition, and more relevantly to this application, the tariff then in force, from November 1992, permitted Telstra to offer business customers participation in one or other of its then Telstra Corporate Flexi-Plans, which provided for discounts on standard charges for nominated services, in some cases for payment of a fee. The range of Flexi-Plans included those most suited to typical business use, to high off-peak business use, and for residential and smaller business customers.

33. In March 1993 Optus commenced proceedings in this Court challenging the validity of both the Strategic Partnership Agreements and certain of those Flexi-Plans, on the grounds that they involved discriminatory supply of services contrary to s183 of the Act in markets which Telstra was in a position to dominate. Those proceedings were defended.

34. The enactment of the 1994 Act, appears to have overtaken those proceedings. Following its enactment, Telstra withdrew the tariff which enabled the individual Strategic Partnership Agreements, and terminated those agreements. It also reviewed certain of its Flexi-Plans, but revised only a few of them. I note below the extent to which the Flexi-Plans under the current tariff which are challenged in this proceeding differ from Flexi-Plans which existed under the 1992 tariff. The proceedings brought by Optus against Telstra challenging portions of the 1992 tariff were, in the circumstances, compromised by a settlement agreement dated 12 May 1995. It was a term of that settlement agreement that Telstra would apply to the Court for declarations in relation to eight nominated Flexi-Plans, including in substance the seven which are the subject of this proceeding, as to whether the supply of telecommunications services by Telstra pursuant to them constituted the supply of services under a legitimate charging option for the purposes of s185(2C) of the Act.

35. Accordingly, on 9 June 1995, Telstra instituted such proceedings in matter No VG 585 of 1995. Apparently to avoid any question of the Court's jurisdiction to entertain that application, and by agreement, on 3 July 1995, Optus separately instituted these proceedings under s186 of the Act for declaratory orders as to whether the supply by Telstra of such services in the circumstances contravened s183 of the Act. That provoked a wider consideration of issues than the refined question raised by Telstra. On 20 July 1995, Jenkinson J ordered that the two sets of proceedings be consolidated and that in the consolidated proceeding Telstra's statement of claim in matter No VG 585 of 1995 stand as Telstra's cross-claim in this proceeding, and that the questions for determination on that cross-claim be determined separately, and before, any further step or trial in respect of any question not raised by the cross-claim in the consolidated proceeding.

36. That cross-claim in its final form is therefore the document which identifies the issues now before the Court.

37. The statement of claim accompanying that cross-claim seeks orders with respect to seven Flexi-Plans in the current tariff filed with AUSTEL and as now varied. In respect of each, it is asserted that Telstra thereunder supplies particular kinds of telecommunications services to customers on specified terms and conditions at a discount from its standard charges, in certain cases on payment of a fixed monthly charge. I should add that there is no determination in writing by AUSTEL as to a class of persons to whom s185(2C)(d) applies, so that part of s185(2C) does not come into play.

38. It is further asserted that such services are available to:

. all, or all but an insubstantial minority of customers, or . all, or all but an insubstantial minority of business customers, or . all, or all but an insubstantial minority of residential customers

to whom supply of those services is technically feasible, so that the supply in each instance is under a legitimate charging option within the meaning of s185(2C) of the Act. Declarations are sought on that basis, but limited to that question.

39. Accordingly, and pursuant to the order of Jenkinson J referred to, the Court is not called upon to determine whether Telstra is in fact caught by the operation of s183 at all. The questions to be determined primarily under s185(2C) implicitly assume that, but no concession to that effect is made by Telstra. That position was not contested by counsel for Optus. It is not therefore necessary for the Court to decide at this point, and indeed evidence was not led by either party or by AUSTEL, as to whether Telstra is in a position to dominate a market for a particular kind of telecommunications service, nor whether in supplying services under one or other of the contested Flexi-Plans it is in fact discriminatory between persons who acquire in that market telecommunications services in relation to charges or to terms and conditions. Counsel for Telstra, Dr Jessup QC who appeared with Mr Maxwell, made it plain that his client did not concede or acknowledge either of those matters.

40. The eight Flexi-Plans selected initially were, I was informed, selected because they represented a sample of such of those plans as Telstra intended to continue marketing, and so an appropriate vehicle for determining the applicability of s185(2C) of the Act to Telstra's plans. One of those eight plans is no longer relevant for that purpose, and is not referred to in the statement of claim. The other seven reflect that initial selection, some by reason of their content rather than their name. The submissions of Optus indicate that there is no longer an issue about one of them, called the "Family and Friends Flexi-Plan" which is referred to below, that it is not a legitimate charging option, on the basis or point of distinction for the purposes of its submission that it is open to all customers of Telstra without fee, and without any threshold expenditure for eligibility for the benefit. Telstra nevertheless persists in its application for declaratory relief with respect to it.

41. On 14 September 1995 the Court (Drummond J), on the motion of AUSTEL, made orders granting leave to AUSTEL to participate in the proceedings as an amicus curiae to such an extent and in such manner as the Court may permit. Mr Shavin QC who appeared with Ms Tate for AUSTEL at the hearing made submissions generally on the proper construction of s185(2C) but otherwise made only brief submissions in the course of the hearing limited to the admissibility of certain evidence, and briefly cross-examined one witness on matters referred to by that witness concerning his client.

42. I should further note that in January 1995, AUSTEL, pursuant to a direction given by the Minister for Communications and the Arts dated 2 June 1994 entitled "Telecommunications (Price Competition) Direction No 1", issued a document entitled "Decision Making Framework for the Performance of AUSTEL's Function to Disallow Anti-competitive tariffs" ("the DMF"). In the DMF, AUSTEL stated that it would treat Telstra as a carrier which is in a position to dominate the markets for the following telecommunications services:

a) telephone access service and local calls; b) domestic long distance calls; and c) international long distance calls;

unless it otherwise determines. Its view has not altered. Telstra disagrees with that view, and has commenced proceedings in this Court seeking declarations that it is not in a position to dominate the market in Australia for the supply of international services. Those proceedings are not yet resolved.

43. As mentioned above, Telstra has from time to time since November 1991 filed tariffs or variations to tariffs with AUSTEL pursuant to s190 of the Act. Such tariffs state the prices and other terms upon which certain kinds of telecommunications services are supplied by Telstra to its customers. Pursuant to s197 of the Act, Telstra must for so long as it is in a position to dominate a market for a particular kind of basic carriage service, charge prices in respect of that kind of service in accordance with a tariff filed with AUSTEL. The effect of AUSTEL's view, if correct, is that it must do so at present.

The Flexi-Plans in issue

44. The tariffs filed by Telstra with AUSTEL which are current include its Public Switched Telecommunications Services tariff ("the PSTS tariff"), the Public Switched ISDN Services tariff and the Customer Net Spectrum Service tariff. It is the PSTS tariff which contains the charging options the subject of this action.

45. It is not technically feasible for Telstra to supply telecommunications services of the kind referred to in the PSTS tariff, at least not with the charging options the subject of this action, to any customer whose telephone line is not connected to a switch within a telephone exchange which has both Calling Line Identification ("CLI") and Call Charge Recording ("CCR") functionality. It is technically feasible for Telstra to supply communications services pursuant to the provisions of the PSTS tariff with the charging options the subject of this action to any customer whose telephone line is connected to a switch in a telephone exchange providing both CLI and CCR functionality.

46. The PSTS tariff relates to the public switched telephone access service, including access to the local network and to telecommunications services indicated by dial-tone. It specifies telephone service charges, including connection charges, annual service charges, and additional services and charges including local calls, community calls, pastoral calls, and trunk calls. The charge payable for an automatic trunk call made from the customer's service (an STD call) is calculated either with an initial charge plus a further amount per one second chargeable period, but at different rates according (roughly) to the distance of the call and whether it is made during day, night or economy periods (if the service is provided with CCR facilities unless also it has meter pulse signals) or at a rate per chargeable period again varying with distance and time (if the service is not provided with CCR facilities, or has CCR facilities with meter pulse signals). All periods are at economy rate except for 8.00am-6.00pm Monday to Friday which are at the day rate and for 6.00pm-10.00pm Monday to Thursday which are at the night rate. There are a number of other charging provisions within the tariff related to different types of STD calls. The PSTS tariff also provides for other charges relating to the telephone service, covering matters like change of telephone number, unlisted telephone numbers and other topics.

47. The PSTS tariff also provides for International Call Charges. It prescribes for standard charges per minute which of course differ according to country, again at standard or off-peak rates. Clause 4.5.1.2.3.(b) provides for Country Specific Flexi-Plans, the broad effect of which is that in the case of 14 countries, including Greece, upon the conditions set out in clause 5.18A of the PSTS tariff, a customer may subscribe to a Country-Specific Flexi-Plan for $1 per month and be charged at an adjusted, lower rate by a percentage (again, differing from country to country) than the otherwise applicable rate. There are again a number of other circumstances covered by that section of the PSTS tariff.

48. Section 5 of the PSTS tariff provides for service options and charges. Clause 5.18 is entitled "Flexi-Plans (Optional Customer Calling Plans)", and is said to provide customers with benefits of choice and flexibility, enabling the selection of price options in line with individual preferences. They include the following:

1. STD Weeknight Saver Flexi-Plan (clause 5.18.12); 2. IDD Everyday Saver Flexi-Plan (clause 5.18.12); 3. Family and Friends Flexi-Plan (clause 5.18.4.1); 4. Long Distance Saver 4 Flexi-Plan (clause 5.18.15); 5. Country Specific Flexi-Plan (Greece) (clause 4.5.1.2.3(b)); 6. STD Select Saver Flexi-Plan (clause 5.18.6.1); and 7. Business Saver Plus Flexi-Plan (clause 5.18.8).

49. It is those Flexi-Plans which are said by Telstra to comprise legitimate charging options under s185(2B) of the Act. It seeks declarations to that effect.

50. On the evidence, all but the IDD Everyday Saver Flexi-Plan and the Business Saver Plus Flexi-Plan existed under the then current tariff prior to 15 March 1994 when the 1994 Act commenced, in the same or substantially (for present purposes) the same name and form as they each presently comprise. The structure and kind of discount option offered by the IDD Everyday Saver Flexi-Plan largely mirrors for IDD calls that previously available under the STD Everyday Saver Flexi-Plan, a plan now available under the PSTS tariff and entitled STD Saver Flexi-Plan but otherwise identical to its earlier structure. The Business Saver Plus Flexi-Plan was introduced in 1995, and had no earlier incarnation.

51. Each of the current Flexi-Plans under consideration has one or more of the following features:

a) the payment of a monthly up front fee; b) a minimum usage threshold; and c) discount levels which increase with volume of usage (Long Distance Saver 4 Flexi-Plan only).

52. The Family and Friends Flexi-Plan, which is no longer put in issue by Optus, has none of those features. Those features also applied to the 27 fixed network Flexi-Plans offered by Telstra under the tariff current at 15 March 1994 as well as to all but one of the 29 fixed network Flexi-Plans offered by it under the current PSTS tariff, but there has been a numerical shift at least towards minimum usage thresholds (now 11 of the 29, compared to 2 of the previous 27) and from up front monthly fees (now 18 compared to 25) and from discounts which increase with volume of usage (now 5 compared to 10). As submissions were directed to comments made in Hansard in relation to the existing Telstra Flexi-Plans prior to 1994, it is helpful to understand that position to put those comments into context.

53. The six Flexi-Plans now challenged fall into two categories.

54. In the first group are the Flexi-Plans which impose a payment for services on the basis of a small monthly fee together with a percentage discount on the standard fee for that service. They are:

(1) STD Weeknight Saver Flexi-Plan. It applies to STD and some similar calls. It is available for a monthly fee of $2 and provides a discount of 25% on such calls, provided such calls are made between 6.00pm and 10.00pm on Monday to Thursday. The break even point in an immediate monetary sense is expenditure of $8 per month. It is said by Telstra to be available to anyone who might make an STD call. (2) IDD Everyday Saver Flexi-Plan. It applies to IDD and some similar calls. It is available for a monthly fee of $2 and provides a discount of 15% on such calls, provided such calls are made other than between 9.00am and 6.00pm on Monday to Friday. The break even point in an immediate monetary sense is expenditure of $16.60 per month. It is said by Telstra to be available to anyone who might make an IDD call. (3) Long Distance Saver 4 Flexi-Plan. It applies to STD, IDD and some similar calls. It is available for a monthly fee of $3, and provides a discount commencing at 12% and increasing progressively to 23% for accounts with a monthly usage in excess of $450,000. It applies to calls whenever made. The break even point is in an immediate monetary sense a minimum expenditure of $25 per month. Greater expenditure produces greater percentage discount, to a maximum of 23%. It is said by Telstra to be available to business customers who might make an STD or an IDD call. (4) Country Specific Flexi-Plan (Greece) applies to IDD calls to Greece. It is available for a monthly fee of $1, and provides a discount of 15% on such calls, provided such calls are made between midnight and 6.00am on weekdays and at any time on weekends. The break even point in an immediate monetary sense is expenditure of $6.67 per month. It is said by Telstra to be available to anyone who might make an IDD call to Greece. 55. The second category of Flexi-Plans the subject of this application are those where there is no monthly fee but which provide a percentage discount on the standard fee for that service provided that a threshold expenditure limit is incurred in a particular month. There are two such plans: (1) STD Select Saver Flexi-Plan. It applies to STD calls to up to ten nominated STD areas. It is available, with a discount of 10% on all such calls to a nominated area, made at any time, provided the expenditure in a month for calls to that area exceeds $10. The customer may nominate any number up to ten STD areas. If expenditure is less than $10 to any of the nominated areas, no discount is given in respect of calls to that area. It is said by Telstra to be available to anyone who might make an STD call to any one or more of the (up to ten) areas nominated by the customer. (2) Business Saver Plus Flexi-Plan. It applies to STD, IDD and similar calls. It is available, with a discount of 15% on all such calls, made at any time, provided the expenditure in a month exceeds $15. It is said by Telstra to be available to business customers who might make an STD or IDD call.

56. It is necessary for a subscriber to apply to join any Flexi-Plan. They do not apply automatically. There is no fee involved in doing so.

57. The seventh Flexi-Plan, no longer the subject of attack by Optus, is the Family and Friends Flexi-Plan, which applies to STD, IDD and some similar calls and calls to mobile services "to up to 5 call numbers selected by the customer in any combination of five ... numbers", whenever made. No fee is payable. It offers a 10% discount on expenditure. It is said by Telstra to be available to any residential customer who might make an STD or IDD call or a call to a mobile service. As it is available without fee, and without any expenditure threshold, it is (as Mr Canavan QC, who appeared with Mr Gageler for Optus, put it) "open to all", subject only to the subscriber applying to join that plan.

The evidence and submissions

58. The focus of all submissions was whether services supplied by Telstra under each of the Flexi-Plans in issue was exempted from the prohibition under s183 of the Act (assumed otherwise to apply) because they each fall within the exception preserved by s185(2B) of the Act. There was no dispute that, in respect of each Flexi-Plan, the structure of the terms and conditions including as to pricing amounted to discrimination of the nature of that contemplated by s185(2B)(a). The real issue was whether, in terms of s185(2B)(b) of the Act, each of the services is supplied under a "legitimate charging option" and in turn whether supply of such services, at the time of such supply,

"on the same terms and conditions as the terms and conditions on which that service is supplied, is available to:"

all, or all but an insubstantial minority of the relevant group of customers: s185(2C). The meaning of the expression "available to all" became the convenient expression, adopted during the hearing, of the critical measuring stick.

59. Section 185 contains the definition of "customers". They are the persons who acquire or propose to acquire, or might reasonably be expected to acquire or propose to acquire, telecommunications services of a particular kind: subs(4). It contains the definition of "terms and conditions" as including terms and conditions about charges for a telecommunications service: subs(4). It also provides that the onus of proving that a particular kind of telecommunications service is supplied under a legitimate charging option rests upon the carrier alleging that: s185(3), in this case Telstra.

60. The real point of focus in the Optus submissions is as to whether each of the Flexi-Plans is "available" to all, or all but an insubstantial minority of, customers, whether generally, or to business customers, or to residential customers. Optus contends that availability is not established simply by the absence of express exclusionary or limiting terms in a tariff as to the eligibility of customers (general, business or residential) to be supplied on the terms and conditions in the tariff. It submits that that supply of services must be "within the reach" of the customer, and "suitable for use" by the customer. Consequently, it submits that those criteria are not satisfied if the customer faces an economic disincentive to that supply, or alternatively a significant economic disincentive to that supply, or again alternatively cannot practically take advantage of that supply on those terms and conditions. In relation to each of the STD Weeknight Saver Flexi-Plan, IDD Everyday Saver Flexi-Plan, Long Distance Saver 4 Flexi-Plan, and Country Specific (Greece) Flexi-Plan now challenged by it, it submits that there is more than an insubstantial minority of customers who, having joined a plan, would not in fact use the service sufficiently to reach the financial break even point having regard to the monthly fee and so would necessarily be subject to an economic disincentive in joining the scheme; if necessary for its argument, it would categorise that disincentive as substantial. In relation to the STD Select Saver Flexi-Plan and Business Saver Plus Flexi-Plan challenged by it, it submits that there is more than an insubstantial minority of customers who, having joined a plan, would in a practical sense not take advantage of the plan simply because their level of usage would not result in the discounts proposed. Also, in the case of the Long Distance Saver 4 Flexi-Plan, once the break even expenditure point is reached, the sliding scale of discounts depending on the level of usage results, it is put, in most, and certainly more than an insubstantial minority of, customers being unable to take advantage of the higher level of discounts.

61. Optus' alternative submission or formulation of its position is that each Flexi-Plan, to qualify as a legitimate charging option, must be of "broad appeal" to all, or to all but an insubstantial minority of, customers who might seek supply of the particular service. It submits that on that alternative formulation, no one of the six Flexi-Plans so qualifies.

62. I can deal with one aspect of the submissions shortly, dealing with the question of "insubstantial minority of customers". In the material before me is an agreed statement of facts. It includes information as to the total number of Telstra's and Optus' customers generally and their residential and business customers, and separately the numbers from those groups of customers:

1) which incurred STD charges of at least the break even point of $8 in the month of June 1996 for services eligible for discount under the STD Weeknight Saver Flexi-Plan provisions on at least one account (in the case of Optus customers for a slightly different period); 2) which incurred IDD charges of at least the break even point of $13.33 in the month of June 1996 for services eligible for discount under the IDD Everyday Saver Flexi-Plan on at least one account (again, in the case of Optus customers for a slightly different period); 3) in the case of business customers only, which incurred in relation to the number of accounts ranging from 1 to more than 2000 for each customer charges of at least the amount needed to reach the break even point for that customer's number of accounts as at 30 June 1996 at the threshold for each level of discount available under the Long Distance Saver Flexi-Plan (in the case of Optus, as at 31 August 1996) and the numbers of customers eligible for that level of benefit; 4) which incurred charges on calls to Greece of at least the break even point of $6.67 for the month of June 1996 for services eligible for discount under the Country Specific Flexi-Plan (Greece) provisions on at least one account (in the case of Optus' customers for a slightly different period); the figures apply to all customers, including business and residential customers; 5) which incurred charges of at least $10 in the month of June 1996 for services on at least one account in relation to calls to that customer's most frequently called STD codes, including business and residential customers, so as to be eligible for discount under the STD Select Saver Flexi-Plan (in the case of Optus customers for a slightly different period); and 6) in the case of business customers only, which incurred charges of at least $15 in the month of June 1996 for services on at least one account so as to be eligible for discount under the Business Saver Plus Flexi-Plan.

63. The precise data is clearly commercially sensitive, and I made an order under s50 of the Federal Court of Australia Act 1976 restricting its publication to counsel and solicitors for the parties appearing and to the Chairman of AUSTEL. That in effect reflected the arrangement made between Telstra and Optus in the process of agreeing that information. It is unnecessary to refer to the precise figures disclosed.

64. I am satisfied that, on the basis of those figures, if the Optus submissions are correct, the potential customers who would suffer either an economic disincentive in relation to, or get no practical advantage from, or for whom no broad appeal would exist (to use the compendious epithets used from time to time during submissions) in relation to each of the six Flexi-Plans now under consideration would be more than an insubstantial minority of customers in each instance to whom the supply of services under each of those Flexi-Plans respectively would be technically feasible. No submission to the contrary was put by Telstra.

65. Accordingly, if the Optus submission as to the proper construction of "available" in s185(2C) is correct, I would find that the Flexi-Plans do not constitute legitimate charging options without needing to further analyse in detail whether the numbers of customers to whom the services the subject of the several Flexi-Plans are available to all but an insubstantial minority of relevant customers. It is a case (as both parties presented it) of: all, or nothing at all.

66. I mention that the figures agreed are, as the evidence showed, figures arrived at upon certain assumptions and adopting for parts of it a methodology which the parties themselves do not regard as necessarily producing correct figures. I am satisfied that the agreed figures are sufficiently reliable for the purposes of the above conclusion.

67. I do not intend to diminish the significance of the Optus submissions by classifying the three broad attacks as follows: the several Flexi-Plans under attack are not legitimate charging options under s185(2B) because:

(a) in the case of the STD Weeknight Saver Flexi-Plan, IDD Everyday Saver Flexi-Plan, Long Distance Saver 4 Flexi-Plan and Country Specific Flexi-Plan (Greece), an eligible customer (general, residential or business as appropriate) who makes use of the particular kind of telecommunications services to which the plan relates: (i) faces an economic disadvantage (if necessary for the argument to succeed, a significant one) in the supply of those services under the plan, and (ii) cannot practically take advantage of the supply of those services under the plan, (b) in the case of the STD Select Saver Flexi-Plan and the Business Saver Plus Flexi-Plan an eligible customer who makes use of the particular kind of telecommunications service to which the plan relates, more than an insubstantial minority cannot practically take advantage of the supply of those services under the plan, and (c) in the case of all six Flexi-Plans under challenge, those plans are not of broad appeal to eligible customers who make use of the particular kind of telecommunications services to which those plans relate, and to whom the supply of those services is technically feasible.

68. The materials relied upon by both parties, and by AUSTEL, in submissions included the Second Reading speech of the Minister for Communications and the Arts on the 1994 amending Act (as it became) (Hansard, 23 March 1994, pp1935-1939), the Explanatory Memorandum accompanying that Bill, the debate in the House of Representatives on the Bill (Hansard, 23 March 1994, pp1939-1951) and in the Senate (Hansard, 5 May 1994, pp310-316). I refer to certain of that material below.

69. Telstra's submission stresses that s185(2C) is concerned with four matters:

. the type of communications service to be or being supplied . the terms and conditions on which that service is supplied . the customers to whom that service is technically feasible . the availability of that service to those customers on those terms and conditions relating to that service.

70. Telstra stressed that the fourth point is a compendious one, and that the terms and conditions must relate to the service rather than to the customers or potential customer, although usage level is (it submitted) a term and condition of the supply of the service applicable for all customers. Accordingly, in response to the Optus submission, it asserts that it is the service which must be available, not the discount; the relevant issue is whether the service is available to all on the same terms and conditions. Thus, it is said, the fact that some customers cannot reach the threshold and so suffer economic disadvantage or cannot practically take advantage of the discount offered is not a consequence of any characteristic of the terms and conditions of the service offered, but of the customer itself. It submits that otherwise, there would need to be constant re-assessment of the empirical usages of customers to ensure any such plan was available to all or to all but an insubstantial minority of customers, and including somehow that assessment being made in relation to potential customers. It suggests that Optus' submissions would apply equally to the discount provisions notionally available to all in the PSTS tariff standard charges, e.g. night and weekend rates for STD calls as there is an "economic disincentive" to calls during business hours, and on the converse side a practical disadvantage but an economic incentive, e.g. for business calls made outside business hours, and even an economic disincentive by the cost differential produced for example by the public phone rate for a local call of 40cents compared to the rate for such a call from a business or residential premise: connection fee, annual rental and call fee of 25cents. It pointed to the fact that the supply of the same service under different Flexi-Plans, quite apart from the standard tariff, may itself constitute an economic disincentive. In relation to the "broad appeal" argument, Telstra asserts that that concept is not expressed anywhere in the Act or in the Parliamentary materials, and further that that test, if applied strictly, could disqualify even a generally available plan with terms and conditions, such as the Family and Friends Flexi-Plan, simply because more than an insubstantial minority of customers would not find the plan of broad appeal because of its terms and conditions.

71. On a more general level, the use of the word "option" must, it is said, mean some choice was intended and that choice necessarily implies difference, and that difference necessarily means that between one or other (or more) choices there will never be one which has broad appeal to all or all but an insubstantial minority of customers.

72. AUSTEL's submissions looked to the consequences of one or other of the opposing contentions, and sought to draw a line which was not too exclusive on the one hand but which did not permit a plan which, in its practical effect, was available to only a limited number or perhaps even one customer or potential customer: it suggested therefore that the size of the discount may be relevant, and whether the plan was of broad appeal to the relevant category of customers, that term "broad appeal" then being used in an inclusory sense rather than the exclusory sense which Optus' more confining submission contended for. It does not submit that any of the pricing plans now in issue would stumble into the rejection category under that test. It has not disallowed any of them, as it might have done under s238A of the Act. Telstra rejects the interpretation of the Act so contended for, because it is not (so it is said) found in the Act, nor supported by the Parliamentary materials, but only (and irrelevantly for any purposes) in a Departmental letter of 23 November 1994 referred to as part of AUSTEL's submission.

73. The evidence, apart from the agreed statement of facts referred to, comprised that provided by Mr Dennis Hambleton, Telstra's Director of Regulatory and Professor Henry Ergas, an economist with a special interest and expertise in telecommunications, and (for Optus) Dr Robert McEwin, Reader in Law and Economics, Australian National University. Their evidence in each instance was given by statements adopted by them, and then subject to cross-examination and re-examination. In each instance, as appears from much of the background and descriptive findings as I have made above, I have had no doubt in accepting their evidence so far as it relates to matters of fact. It remains to assess the expert economic evidence and its significance.

74. That evidence, as conveniently outlined in Professor Ergas' statement

(a) outlined views on the economic analysis of pricing plans and the role of such pricing plans in competitive markets, (b) examined the content in which pricing plans have been offered in Australia (c) analysed the feasibility and desirability of assessing consumer demand for a particular pricing plan by examining consumer outlays for a service and comparing those outlays to a 'break even point' for that plan, and (d) drew conclusions from those discussions.

75. Clearly, those two expert witnesses' understanding of 'pricing plans' included volume related schemes of a type which include the six Flexi-Plans in issue, all of which involve the customer selecting whether to choose one of a number of particular options or to abide by the standard tariff.

76. Professor Ergas' proposed evidence was largely objected to by Optus, except to the extent that it commented on the desirability and feasibility of assessing the demand for a pricing plan by examining customer outlays in a period of (say) one month and calculating the number of customers whose outlays would exceed a 'break even' point where that point is calculated by comparing the plan to the standard tariff, and from that assessing the proportion of customers or potential customers likely to participate in a particular plan. That goes to the weight to be attached to the agreed set of facts. His conclusions on that topic are that

. economic analysis shows that 'break even' points are a poor indicator of demand, . assessing demand on the basis of outlays in a recent month is likely to be misleading, but is better made by looking to the future, with the difficulties obviously involved in that process, and . assessing the share of customers likely to 'demand' a plan will also require a forecast of the size of the customer base.

77. His views on those topics were not challenged, and I accept them. I do not think they add much to the matrix of facts in which I am to construe s185(2B) and (2C), although they provide a basis to support Dr Jessup's submission that an interpretation should be avoided which would necessitate both continuous review by Telstra of its Flexi-Plans to determine whether such plans were "available" to all, or all but an insubstantial minority, of the relevant group of customers and some assessment of the future to do so. That evidence confirms what might have been concluded anyway, namely that forecasting on such matters is both difficult and unreliable, and further that consumer decision making is not necessarily absolutely driven only by entirely objectively based economic reasons. The evidence does not establish, on the other hand, that break even points are irrelevant to all but an insubstantial minority of the relevant group of customers. I do not think that part of the evidence assists Optus' contentions either as it would not be possible that the measurement of economic advantage or disadvantage, on that evidence, would ever disclose on a regular basis expenditure to a break even point by a substantial majority of the relevant category of customers unless the threshold level were so low against usage as to amount, in effect, to a new standard tariff.

78. In substance, the balance of his evidence was objected to, on the grounds that it was irrelevant because such material could not really assist in the proper construction of s185 of the Act. The question of whether the six contentious Flexi-Plans were, or were not legitimate charging options, and in particular whether all or any of them were "available" to all, or all but an insubstantial minority of the relevant group of customers, could not (it was submitted) be resolved other than in the conventional way or by recourse to conventional materials. In addition, it was contended that as a matter of fact, such evidence even if technically admissible should be rejected as being of no potential assistance in any event. Counsel for Optus arguing this point, Mr Gageler, put that the economic theory of price discrimination would not help at all in relation to the matter before the Court.

79. The responding submissions identified the purposes of the proposed evidence as follows: apart from responding to the anticipated contention of Optus relating to the contextual background in which pricing plans were presented in the telecommunications industry, it was said that such evidence would provide an economic context for the significance of Telstra's decision to implement such pricing plans, to provide economic information as to the consequences of the Court determining under s185 that such pricing plans were not available or ought not to be allowed, and to understand more clearly the knowledge existing on the part of the Parliament at the time of the 1994 Act. Secondly, it was said that such evidence would enable the Court to be satisfied that it should not make any assumption that price discrimination per se was undesirable. Thirdly, it was said, that such evidence might be used by the Court to identify the sort of benefits to consumers which the Minister in his Second Reading Speech and in the Explanatory Memorandum might have meant when identifying those benefits to consumers. Fourthly, it was said that there was a lot of factual information in the material provided which gave a background industry context to the sort of issues thrown up for construction. Counsel for AUSTEL supported the admission of the evidence and added an additional reason: s15AA of the Acts Interpretation Act urges upon the Court a purposive or objective test for construction of legislation. He referred to the specific objects of the Act, and specific directions to AUSTEL as to purposes which it should seek to achieve in implementing its role under the Act. Accordingly, it was urged that such evidence might be relevant to enable the Court to be aware of the purpose of the Act, and the construction of a provision of the Act which would aid in fulfilling or serving that purpose.

80. The Court is mindful of the appropriate distinction drawn by counsel for Optus between determining primarily the meaning of the word or words in s185 of the Act, and the second step of then determining whether in the light of that construction the Flexi-Plans were "available" within the meaning of that legislation. It is entirely correct, as Mr Gageler for Optus submitted, that the relevance of evidence going to the first issue might be measured quite differently, and given that it is a matter of construction as a matter of law, much more cautiously than that going to the second matter.

81. Having heard argument, I indicated that I would receive that evidence. In that ruling, I relied upon and sought to apply the principles noted by Hill J in Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289. Those principles have not been diminished by s80 of the Evidence Act 1995: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 33) (1996) 137 ALR 138. Thus I accept that it is a well established principle of the common law that the courts will refuse to admit evidence for the purpose of interpreting a word used in a statute in accordance with its ordinary English usage. However, based upon the submissions presented to me, I did not think that such evidence fell clearly into that category of material to be excluded. It is of course an entirely different matter as to whether the material proposed to be adduced ultimately would serve effectively the purpose or purposes for which it was intended. However, it seemed to me that it was legitimate for Telstra to adduce the evidence for the purposes it identified. However, having heard the evidence I do not think, at the end of the day, that it assists the Court much, if at all, in resolving the matters in dispute between the parties.

82. Both Professor Ergas, who was called by Telstra, and Dr McEwin, who was called by Optus, gave evidence in an acceptable way and, to the extent that each disputed the other's views, in a forceful and lucid manner. In different ways each was an impressive witness. Professor Ergas was somewhat more forceful in his views, and clearly had a breadth of relevant experience which was extensive. Dr McEwin for his part was more subdued in his presentation, but nevertheless I thought he displayed a measured thoughtfulness in his opinions. Upon careful scrutiny, the differences between those two experts emerged during their respective cross-examinations as being essentially differences of degree rather than of principle. I have not, in the end, derived much assistance from that evidence. That is because my analysis of the legislative background in the present matter discloses matters to much the same general effect as the expert evidence. The meaning of s185(2B) and (2C) of the Act depends upon that context, rather than expert evidence even to the extent that expert evidence might set the scene or establish an economic matrix in which those subsections are to be construed. If that expert evidence provided any relevant factual foundation inconsistent with the legislative content itself, I would not have regard to it. In the present matter, the provisions of the Act and its historical evolution, and including the legislative expressions of purpose, provide the more general framework in which the issues arise. I do not think the expert evidence usefully goes beyond that picture. Moreover, I do not think that the expert evidence can, or presumes to, lead me to any conclusion as to the precise meaning of "legitimate charging option". To admit it or to use it for that purpose would be contrary to principle. The construction of that expression in the Act, given that it is part of the process towards a fully competitive market rather than being itself a reflection of a legislative intention to have established under the Act a fully competitive market, is one upon which conceptions of economic theory in any event would not bind themselves. It is a matter of discerning the legislative intent as to how far along the route to competition the Act as presently in force has gone.

Consideration of the submissions

83. Part 9 of the Act deals with the supply of basic carriage service by carriers, and Part 11 of the Act deals with supply of telecommunications services generally. It is mainly within those parts of the Act that the submissions, and the reasons for my conclusion are found.

84. The intention of the Parliament for the purpose of Part 9 of the Act is set out in s173. I have set out above s173(c)-(f). Consistent with the legislative history, it is also provided in s173(a) that it is Parliament's intention:

"that the carriers, as the primary providers of Australia's public telecommunications infrastructure and networks, and the principal suppliers of telecommunications services in Australia, should be able to exploit fully, in their supply of basic carriage services, the economies of scale and scope available to them because of the facilities they control;".

85. There is clearly an intention to promote competition within the relevant markets, and to enable participants in those markets to take advantage of economies of scale and scope in their competitive processes. It is also clear that that competition is not intended to be unbridled. Thus AUSTEL's role is explicitly recognised in s173, and Divisions 2 and 3 of Part 9 of the Act include provisions enabling AUSTEL to "unbundle" basic carriage services in certain circumstances apparently to procure transparency in the nature and extent of charges of, or terms upon which services are provided by, a carrier. Also, s173(f) reflects specific legislative intent to temper competitive conduct which might otherwise be engaged in by a carrier if that carrier is in a position to dominate a market for telecommunications services.

86. Division 4 dealing with the prohibition of discrimination and Division 5 dealing with tariffs of basic carriage services both reflect that, in certain circumstances, competitive behaviour may be controlled both by AUSTEL's exercise of powers given to it under the Act, and by specific legislative proscription within the Act. Part 11, Division 1 is headed 'Competition' and contains within it s238A which is set out above, and which entitles AUSTEL to disallow a tariff or parts of a tariff if in its opinion

"the operation or continued operation of the tariff would be anti-competitive in any market for any telecommunications service": s238A(2)

and s238A(14) illustrates that, in that context, it is not pure competition but the longer term goal of a market structured to ensure sustainable competition which is the measuring stick of "anti-competitive" operation of a tariff. It provides:

"For the purposes of this section, the operation or continued operation of a tariff is taken to be anti-competitive in a market if and only if: (a) the operation or continued operation of the tariff, or provisions of the tariff; or (b) the operation or continued operation of the tariff, or provisions of the tariff, in conjunction with other tariffs or commercial arrangements; has, or is likely to have, the effect of materially and adversely affecting the development and/or maintenance of commercially sustainable competition in that market."

87. That is also reflected in the Telecommunications (Price Competition) Direction No 1 of 1994 given by the Minister for Communications and the Arts to AUSTEL on 2 June 1994 (Gazette, 8 June 1994, pp1489-1494) which required AUSTEL to develop a decision making framework for the performance of its functions under s238A of the Act and to act in accordance with that framework. It directed:

"(3) In performing its functions under section 238A of the Act, AUSTEL must have regard to the principle that the operation or continued operation of a tariff or provision of a tariff may have an anti-competitive effect, during the transitional phase to a competitive structure, which it may not have where commercially sustainable competition is established in that market."

and enumerated a series of matters to which AUSTEL must have regard in the performance of those functions.

88. AUSTEL duly published its Decision Making Framework in January 1995.

89. AUSTEL's role is clearly envisaged as an important one under the Act, not simply for technical regulatory processes but also in respect of the ongoing overall supervision of the structure of the markets for the supply of telecommunications services to achieve the longer term goals of the Parliament, to which the 1991 Act and then the 1994 Act are progressively contributing legislative steps rather than the ultimate legislative conclusion.

90. As indicated in submissions, I am asked to assume in respect of the PSTS tariff, and the market to which it relates, that Telstra is a carrier in a position to dominate the market for the telecommunications services in which the services supplied under the six Flexi-Plans in issue are provided. I am also asked to assume that there is discrimination between persons who acquire those services in relation to the charges for the services on the terms and conditions on which those services are supplied. Thus, I assume without deciding (and noting Telstra's specific denial of those matters maintained for the purposes of this proceeding) that s183(1) operates to prevent Telstra from supplying such services under the terms of the six Flexi-Plans in issue.

91. That prohibition is conditional. It is only part of the legislative structure reflecting the purposes expressed in s173, in particular in subclause (f). Section 185 provides for the exceptions to that prohibition, and exceptions relevantly introduced in a less restrictive form than those which applied under the 1991 Act.

92. When the 1994 Act was before the Parliament, and at a time when Flexi-Plans of the general nature of those now in issue as well as other forms of price or service delivery discrimination between consumers of telecommunications services were being made available by Telstra under the then provisions of the PSTS tariff or its predecessor as described earlier in this judgment, the then Minister for Communications and the Arts in his Second Reading Speech on 23 March 1994 said:

"Purpose of the bill In broad terms, the bill is intended to do two things, Firstly, it will remove any doubt that a dominant carrier can offer certain charging options that would otherwise be discriminatory and hence in breach of the Telecommunications Act. Austel, as the specialist regulator, will have a role in determining whether charging options are discriminatory. Secondly, it will enable Austel to disallow tariffs that materially and adversely affect the development and/or maintenance of commercially sustainable competition. Why the bill is needed It has become increasingly apparent that a number of tariffs introduced by carriers since the advent of competition may breach the anti-discrimination provisions of the Telecommunications Act in a technical but unintended sense. Telecom's flexiplans, providing usage-tailored discounts to both residential and business customers for a fee, and strategic partnership agreements, providing large corporate customers with volume discounts, are the most prominent of these, although there are almost certainly others that are affected. It is now also apparent that there is the potential for some carrier pricing practices to have the effect of inhibiting the development of competition in telecommunications. These effects need to be addressed to maintain progress in competition, innovation and customer benefit. The government has consulted extensively with the industry to address this situation so as to ensure that, while the integrity of the package of competitive safeguards embodied in the act is maintained, there is no inadvertent prevention of pricing initiatives that benefit consumers and that are not anti-competitive. This bill achieves these objectives. What the bill does: Exemption from discrimination provisions The act currently prohibits price discrimination by a dominant carrier, except where the discrimination is based on differences in costs. The bill retains the anti-discrimination provision, and recasts the exemptions so that the following types of discriminatory tariffs will be permitted: (a) Those that are generally available; that is, of broad appeal to customers and potential customers. Tariffs under which a service is available to be acquired on the same terms and conditions by major customer groups, such as business customers, residential customers or those in a class of persons determined by Austel will be allowed, but those that are narrowly targeted, in such a way that competition is inhibited or the benefits of competition are narrowly focused, will not. This change will, among other things, effectively permit the majority of existing Telecom flexiplan tariffs. There are currently some 2.3 million flexiplan customers; . . ." Hansard, House of Representatives, 23 March 1994, pp1936-1937

and in relation to the role of AUSTEL, and the provision of the Bill which became s238A of the Act, the Minister said:

"Additional pro-competitive measures There is general agreement within the industry that pricing behaviour that adversely affects competition should not be allowed. The government considers that Austel, as the appropriate independent regulatory authority, should have the authority to act to stop such behaviour. This is particularly important for the development of the telecommunications sector, which is still in a transitional phase from monopoly to competition. This form of safety net is a logical complement to the broadening of exemptions from the anti-discrimination prohibition. Accordingly, the bill proposes a new power for Austel to disallow a tariff of a carrier that is in a position to dominate a market if it is anti-competitive. To ensure consistency with the government's overall pro-competitive regulatory framework for telecommunications, an anti-competitive test is defined quite specifically as one that would materially and adversely affect the development and/or maintenance of commercially sustainable competition in a market. This test, which only applies to tariffs of a dominant carrier, is deliberately different from those applicable under the Trade Practices Act. This reflects the still developing nature of competition in telecommunications and the barrier to competition that would otherwise be represented by Telstra's incumbent position." ibid, at p1937

93. An amendment moved by the Opposition to substitute the words "available, and of broad appeal" for the word "available" in s185(2C) of the Bill was defeated, but it is apparent that the Parliament's intention in that regard did not reflect any desire to narrow the scope of operation which "available" might otherwise convey. Indeed, the second reading speech itself expressly indicates that the bill had recast the exemptions to s183 to permit discriminatory tariffs which "... are generally available; that is, of broad appeal ..." to customers and potential customers.

94. The Explanatory Memorandum to the Bill provided to the House of Representatives which was circulated with the authority of the Minister also reflects that point, as well as recognising the general balancing process sought to be achieved by the bill. Its contents included:

"The purpose of the Bill is to remove any doubt that a carrier in a position to dominate a market ("a dominant carrier") may offer certain discriminatory charging options, providing they meet certain tests, and to enable AUSTEL to disallow tariffs if they materially and adversely affect the development and maintenance of commercially sustainable competition. It is intended to establish a proper balance between: (a) ensuring that the benefits of competition are passed on to all customers; and (b) ensuring that a dominant carrier in relation to telecommunications services, does not use its market power to hinder the development of commercially sustainable competition. . . . A charging option will be a legitimate charging option where the service is available to be acquired on the same terms and conditions by all (or all but an insubstantial minority of) customers (as defined in proposed subsection 185(4) where those terms and conditions are broadly of appeal. So, as a general rule, charging options that are only offered to selected persons will not fall within this exception. . . . The proposed subsections 185 (2B), (2C) and (4) also ensure that certain kinds of differentiation, which could be considered to be discrimination, will not be treated as contravening section 183 or 184. These include: (a) time of day (peak/off peak), day of the week (eg reduced Sunday rates) and similar charging differences; and (b) tariffing of different charges for different service or performance features (eg a charging option under which charges or rates vary according to different performance characteristics or different amounts of service capacity); and (c) flat and incremental volume based discounts (eg that apply to customers who exceed particular levels of aggregate service charges or numbers of service connections)."

95. It is proper to note that it is also explicit in that Explanatory Memorandum that not all Telstra's then pricing arrangements would necessarily comply with the Act as proposed to be amended and any associated Ministerial directions.

96. That legislative context, and to the extent it is of relevance, that material from Hansard, as well as the general information including expert evidence referred to above, is the background to my consideration of the meaning of the critical words "is available to" in s185(2C) of the Act.

97. It is clear enough from the Act and its history, without reliance upon the expert evidence, although it is consistent with the expert evidence, that pricing plans of the general nature of Flexi-Plans may be consistent with the transition phase from a protected market structure to an open market structure. The evidence is, in my view, consistent with those general matters which I have discerned on the basis outlined above, and to that extent has provided some support for the conclusions I have otherwise reached.

98. Similarly, I have considered the extensive parliamentary material put before me, without opposition, and relied upon in the course of submissions. Again, in my view that material is essentially confirmatory of conclusions I have reached as to the legislative intent from within the Act itself, and including its history and its purposive expressions, rather than providing directly reasons for my conclusion. It may have provided a pathway for my more ready discernment of those matters, although it is difficult to really know whether that has in fact happened.

99. The nature of the respective contentions as to the meaning of the expression "is available to" in s185(2C) of the Act has been set out above. At one extreme is the test: capable of being acquired irrespective of whether the Flexi-Plan is in any practical sense of benefit to all or any of the customers to whom the supply of those services is technically feasible and without having regard to their actual or potential usage of such services. That extreme would look only to the words in which the PSTS tariff expresses the Flexi-Plan in question, and ask whether on the face of those words it is discriminatory. I do not accept that contention. It has the potential to focus on form over substance; it would be relatively easy to conjure up illustrations of an apparently indiscriminatory provision operating in a discriminatory way. I do not think Parliament intended that s185(2B) should permit that. It does not reflect either the general legislative purpose, nor the specific prohibition in s183. If the submission is correct, it would also mean that s183 would be infringed, irrespective of the effect of a particular provision of a tariff, only if it were expressly discriminatory. Section 183 focuses on discrimination in the provision of services in relation to charges or terms and conditions. It is the consequence of the terms of the supply of those services which is the evil sought to be proscribed. Sections 183 and 185 should not be read so as to permit one, but not the other, to operate with respect to substance rather than form. The dictionary definitions of "available" include "suitable or ready for use; at hand; of use or service" (Macquarie Dictionary at 115), and "capable of being used; at one's disposal; within one's reach" (Australian Concise Oxford Dictionary at 63), and "capable of being turned to account; ... at one's disposal, within one's reach" (New Shorter Oxford English Dictionary at 154). To the extent that those definitions are of assistance, they do not in my view indicate or support a test which requires all actual or potential users of a telecommunications service to have precisely equal access to those services; they tend rather to suggest that it is the capacity of the actual or potential user to make use of those services which is the relevant feature. That accords with my view derived from the wording of s185(2C) of the Act. It is the supply of the particular telecommunications services upon common terms and conditions which must be available. That is within the control of the supplier. The actual usage of such services is within the control of the customer. That is not within the control of the supplier. So long as a customer who chooses to use the services supplied, that customer must be capable of doing so on the same terms and conditions as other customers. But preferences of customers, either to choose to use or not to use a particular telecommunications service or to choose to have the supply of such services under one or another of the charging options available under a tariff, will not make the availability of that service upon those terms and conditions of themselves not "available" to such customers.

100. That there is nevertheless an impediment to simply looking to the words of the particular Flexi-Plan is however apparent not only for the reasons mentioned above, but also because "customers" is defined in s185(4) as follows:

""customers", in relation to telecommunications services of a particular kind, means the persons who acquire or propose to acquire, or who might reasonably be expected to acquire or propose to acquire, telecommunications services of that kind;".

101. In my view, that definition means that it is necessary to identify in a general sense the customers who are, or might reasonably be expected, to acquire the type of telecommunications service to which the particular Flexi-Plan relates and, against that grouping, measure whether in a reasonable and realistic way, they may acquire those services on the same terms and conditions as others. It is premised upon there being some level of usage, or potential usage, of those telecommunications services. Thus, reflecting the overall purpose of the Act and its evolutionary process, I do not think that simply because one or some customers to whom supply of a particular telecommunications service would not or might not in fact use the service sufficiently to "break even", or in terms of s185(2C) that more than an insubstantial minority of customers to whom supply of those services is technically feasible might not "break even", necessarily means that the service is not available to all. Nor do I think that simply because there is more than an insubstantial minority of customers presently receiving supply of such services under a Flexi-Plan who are not in fact "breaking even" means that the services are not supplied under a legitimate charging option. In fact, it is clear from the evidence before me that in the case of each of the Flexi-Plans in question, there is more than an insubstantial minority of customers presently participating in those plans who do not, at least from time to time, "break even" because their level of usage of those services does not meet the threshold.

102. Thus, I have reached the conclusion that the determination of whether the telecommunications services supplied under each of the particular Flexi-Plans in issue are supplied under a legitimate charging option is not answered only by looking to the form of expression of the relevant Flexi-Plan, nor by determining whether the actual or potential demand or potential demand of a not insubstantial minority of customers for such services may be at a level which does not in fact reach levels at which participation in the particular Flexi-Plan is in fact of economic advantage.

103. The history of the Act set out in detail above suggests that some form of pricing plan is contemplated by the Legislature. Furthermore, having regard to the substitution of s185 by the 1994 Act from that which prevailed under the 1991 Act, and the progressive staging of the Act towards a fully competitive market, it is reasonable to conclude that s185 as now in force was intended to loosen, rather than tighten, the controls upon such pricing plans. No longer is it the case that only cost justified differences are permitted. It is also appropriate to discern in ss183 and 185, and in Part 9 generally, that they reflect the intention of Parliament as expressed particularly in s173 and especially s173(f) of the Act, that s185 now sets the standards which Parliament has prescribed will not constitute an abuse of market power by a carrier in a position to dominate a market for telecommunications services.

104. Whilst it may be the case in some circumstances that a particular Flexi-Plan will or may operate in a relevantly discriminatory way despite its express wording, the starting point for any determination generally will be the wording of the particular Flexi-Plan to identify the categories of customers to whom it is available, and as to the nature and effect of the terms upon which services are supplied under it. That will not necessarily be the only source of inquiry. However, it is noteworthy in the present instance that each of the Flexi-Plans in question, on its face, identifies only in a general way the customers or potential customers for that particular service to whom it is directed. There is no limitation of any specific nature, whether by usage levels or otherwise. Except in the case of the Long Distance Saver 4 Flexi-Plan, there is also nothing in the terms of the Flexi-Plans under consideration which impose other than what is but a very modest usage requirement to qualify for the discount prescribed, or to absorb the monthly fee so as to make participation cheaper than non-participation. There is therefore no real obstacle to participation in those Flexi-Plans. It will be a question of fact and degree whether such a plan does present such an obstacle. Where the frontiers lie is not for this Court presently to determine. It may be that the question will not arise, as AUSTEL's exercise of its powers under s238A of the Act may result in that issue not coming before the Court. However, in my view, whether the Flexi-Plan involves the payment of the monthly fees which, on the evidence, are payable under those plans now in issue with no threshold eligibility for discount, but a 'break even' point at modest levels, or it involves only a modest monthly expenditure to qualify for discount, it is my conclusion that those provisions fall clearly within the shadow of Flexi-Plans in respect of which there is no real obstacle to participation or to eligibility for benefits. There is nothing to suggest that those Flexi-Plans operate only in a concentrated sector of the relevant customers for the supply of those telecommunications services, either expressly or in any other way. As AUSTEL put in its submission, there is no apparent 'targeting' of any sector of Telstra's customers base either explicitly or, in my judgment, by reason of the evidence. The Flexi-Plans all fall within the conception of those of "broad appeal". Although I have not adopted that expression as the measuring stick of whether a particular Flexi-Plan is "available" to all, it is a useful indicator.

105. The Long Distance Saver 4 Flexi-Plan is the only one of the six now in issue which involves a sliding scale of discounts and might therefore be seen as not meeting, upon first analysis, the "availability" measure referred to above. I have described the detail of that plan earlier in this judgment. I am mindful that the onus on Telstra under s185(3) will not be so readily discharged in such circumstances. There was no attempt to justify the particular sliding scale as justified specifically by costs differentials or other efficiencies, although conceptually even the version of s185 under the 1991 Act contemplated such justification; precise evidence to that end is no longer necessary. On the other hand there was no evidence sought to be explored to suggest that the particular sliding scale was in any sense "predatory". There was no submission specifically directed at the particular staging processes under the Flexi-Plan, or any of the eight tiers it creates. At its threshold, it is clearly "available" to all business customers of Telstra who might make STD or IDD calls. The phased discount increasing with volume of usage, in my view, does not per se remove that particular Flexi-Plan from those which fall within the protection of s185(2B) and (2C) of the Act. I note, really by way of incidental observation only, that it is a Flexi-Plan which Optus is, as with any of Telstra's pricing plans, entitled to equal or better. So long as AUSTEL takes the view which it presently holds as to Telstra's capacity to dominate the relevant market, Telstra itself is obliged to adhere to the terms of the PSTS tariff which includes that Flexi-Plan. I have ultimately come to the conclusion that that Flexi-Plan also falls within the criteria which I have identified as relevant to determine whether it constitutes a "legitimate charging option" as defined in s185(2C) of the Act.

106. It is the very modest nature of the monthly fees, and of the relevant usage thresholds, which in my view leads to the conclusion that each of these Flexi-Plans in issue are "available" to all. It follows, of course, that a Flexi-Plan with different participation fees or different thresholds will not necessarily fall within the protection of s185(2B) of the Act. That will be a question of fact for each such plan. Obviously, consistent with my views, if there is a real obstacle to all customers participating or if, to put it a different way, at a practical level not all customers can take advantage of a particular Flexi-Plan, then the position may well be different.

Conclusions

107. For the reasons given, it is my conclusion that each of the seven Flexi-Plans in issue, namely

1. STD Weeknight Saver Flexi-Plan; 2. IDD Everyday Saver Flexi-Plan; 3. Family and Friends Flexi-Plan; 4. Long Distance Saver 4 Flexi-Plan; 5. Country Specific Flexi-Plan (Greece); 6. STD Select Saver Flexi-Plan; and 7. Business Saver Plus Flexi-Plan

are each plans in respect of which the services the subject of each of those plans is supplied under a legitimate charging option, within the meaning of that expression in s185(2B)(b) and (2C) of the Telecommunications Act 1991.

108. Although there is now no contested issue that the Family and Friends Flexi-Plan falls within the protection of those provisions, that position emerged only at the hearing. It is a matter upon which, in my view, it is appropriate to grant declaratory relief: Forster v Jododex Australia Pty Limited (1972) 127 CLR 421. The reasons for my decision in respect of the other contested Flexi-Plans make it plain that, a fortiori, that Flexi-Plan does fall under that aegis. Accordingly, in my discretion, the declaratory orders I propose to make will encompass that Flexi-Plan.

109. There will be declarations that services supplied by Telstra under each of the seven Flexi-Plans the subject of the application for relief are services supplied under a legitimate charging option, within the meaning of s185(2B) and (2C) of the Telecommunications Act 1991.