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Telstra Corporation Ltd v The Commonwealth

Telstra Corporation Ltd v The Commonwealth

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ
TELSTRA CORPORATION LIMITED PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA & ORS DEFENDANTS
Telstra Corporation Limited v The Commonwealth [2008] HCA 7
6 March 2008
S42/2007
ORDER
1.The questions reserved in the case stated dated 11 July 2007 be answered as follows:
Question One
In their application to the ULLS, are any of:
(i)section 152AL(3) of the TPA;
(ii)section 152AR of the TPA; or
(iii)any other provision(s) in Part XIC of the TPA,

beyond the legislative competence of the Parliament by reason of section 51(xxxi) of the Constitution?
Answer
(i) and (ii) No.
(iii) It is not appropriate to answer this question.
Question Two
If the answer to any part of Question One is "Yes", can the relevant provision(s) be read down so that it is valid and, if so, how?

Answer
This question does not arise.
Question Three
In their application to the LSS, are any of:
(i) section 152AL(3) of the TPA;
(ii) section 152AR of the TPA; or
(iii)any other provision(s) in Part XIC of the TPA,

beyond the legislative competence of the Parliament by reason of section 51(xxxi) of the Constitution?
Answer
(i) and (ii) No.
(iii) It is not appropriate to answer this question.
Question Four
If the answer to any part of Question Three is "Yes", can the relevant provision(s) be read down so that it is valid and, if so, how?
Answer
This question does not arise.

2. The plaintiff pay the costs of the case stated.
Representation
A C Archibald QC with N Perram SC and J K Kirk for the plaintiff (instructed by Mallesons Stephen Jaques)
D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan for the first defendant (instructed by Australian Government Solicitor)
N J Young QC with M H O'Bryan for the second defendant (instructed by Australian Government Solicitor)
N J O'Bryan SC with M J Hoyne for the third, fifth, seventh, eighth, eleventh, twelfth and thirteenth defendants (instructed by Herbert Geer & Rundle)
S J Gageler SC with S J Free for the fourth and sixth defendants (instructed by Clayton Utz Lawyers)
M Sloss SC with D B Clough and K L Walker for the ninth and tenth defendants (instructed by Nicholls Legal)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ. Since the 1880s Australia has had a public switched telephone network ("PSTN"). The PSTN is a large and complex piece of infrastructure widely dispersed throughout Australia. The telephone which is connected in most residential and business premises in Australia is the immediate manifestation of that infrastructure. This proceeding, however, focuses upon the twisted pairs of copper or aluminium based wire which run from an end‑user's premises to a local exchange and are known as "local loops". There are about 10.1 million…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] HCA 7
Decision Date: 6 March 2008

CaseChat Overview and Summary

In *Telstra Corporation Ltd v The Commonwealth*, the High Court of Australia considered a constitutional challenge brought by Telstra Corporation Ltd against the Commonwealth. The dispute arose from the Australian Competition and Consumer Commission's declaration of certain telecommunications services as "declared services" under the *Trade Practices Act 1974* (Cth). This declaration imposed obligations on Telstra, as the owner of the necessary infrastructure, to grant access to its facilities to other service providers for the purpose of offering these declared services in direct competition with Telstra.

The central legal issue before the High Court was whether the Commission's declaration and the consequent statutory obligation on Telstra to provide access to its infrastructure constituted an acquisition of property by the Commonwealth otherwise than on just terms, thereby contravening section 51(xxxi) of the Australian Constitution. Specifically, the Court was asked to determine if sections 152AL(3) and 152AR of the *Trade Practices Act 1974*, and other provisions within Part XIC of the Act, were beyond the legislative competence of the Parliament by reason of this constitutional provision, in their application to both the Unconditioned Local Loop Service (ULLS) and the Local Simulated Services (LSS).

The High Court reasoned that the legislative scheme did not effect a compulsory acquisition of property in the constitutional sense. While the provisions mandated access to Telstra's infrastructure, this was characterised as a regulatory measure aimed at promoting competition rather than a direct acquisition of property for the purposes of the Commonwealth. The Court held that the obligation to provide access on terms determined by agreement or, failing that, by the Commission, did not involve the Commonwealth taking property for its own use or benefit. Consequently, the Court concluded that the impugned provisions were within the legislative competence of the Parliament.

The High Court answered the questions reserved in the case stated by finding that sections 152AL(3) and 152AR of the *Trade Practices Act 1974*, in their application to both the ULLS and the LSS, were not beyond the legislative competence of the Parliament by reason of section 51(xxxi) of the Constitution. The Court also determined that it was not appropriate to answer questions concerning other provisions in Part XIC of the Act. Accordingly, Telstra was ordered to pay the costs of the case stated.

Orders

Orders of the court

(Decision of the Court)

1. The questions reserved in the case stated dated 11 July 2007 be answered as follows:

Question One:

In their application to the ULLS, are any of:

(i) section 152AL(3) of the TPA;

(ii) section 152AR of the TPA; or

(iii) any other provision(s) in Part XIC of the TPA,

beyond the legislative competence of the Parliament by reason of section 51(xxxi) of the Constitution?

Answer: (i) and (ii) No.

(iii) It is not appropriate to answer this question.

Question Two:

If the answer to any part of Question One is "Yes", can the relevant provision(s) be read down so that it is valid and, if so, how?

Answer: This question does not arise.

Question Three:

In their application to the LSS, are any of:

(i) section 152AL(3) of the TPA;

(ii) section 152AR of the TPA; or

(iii) any other provision(s) in Part XIC of the TPA,

beyond the legislative competence of the Parliament by reason of section 51(xxxi) of the Constitution?

Answer: (i) and (ii) No.

(iii) It is not appropriate to answer this question.

Question Four:

If the answer to any part of Question Three is "Yes", can the relevant provision(s) be read down so that it is valid and, if so, how?

Answer: This question does not arise.

2. The plaintiff pay the costs of the case stated.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

Full text does not contain this section.