AUSTRALIAN COMPETITION TRIBUNAL
Seven Network Limited [2004] ACompT 10
File No 10 of 2003
RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATIONS LODGED BY TELSTRA CORPORATION AND TELSTRA MULTIMEDIA
BY: SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED
(ACN 082 901 442)
File No 11 of 2003
RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATION LODGED BY FOXTEL MANAGEMENT PTY LIMITED (FOR AND ON BEHALF OF THE FOXTEL PARTNERSHIP AND FOXTEL CABLE TELEVISION)
BY: SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED
(ACN 082 901 442)
JUSTICE GOLDBERG (President), MR G F LATTA and MR R F SHOGREN
13 DECEMBER 2004
MELBOURNE
SUMMARY
1. In accordance with the practice of the Australian Competition Tribunal in some cases of public interest the following summary has been prepared to accompany the Reasons for Decisions made today. The summary is intended to assist in understanding the outcome of these proceedings and is necessarily not a complete statement of the reasoning or the conclusions of the Tribunal. The only authoritative statement of the Tribunal’s reasons is that contained in the published Reasons for Decisions which is being published today and will be available on the Internet at www.fedcourt.gov.au, together with this summary.
2. The matter before the Tribunal was a review of two decisions of the Australian Competition and Consumer Commission (“the Commission”) on 12 December 2003, one in relation to Foxtel and the other in relation to Telstra. The Commission ordered that Foxtel and Telstra were exempt from the standard access obligations with which carriers and carriage service providers are obliged to comply if the carriage services they provide are declared under Pt XIC of the Trade Practices Act 1974 (Cth) (“the Act”). Declaration would make the declared services subject to a regulatory regime, including regulatory involvement in the setting of terms and conditions of access. The exemptions were anticipatory in the sense that Telstra and Foxtel were not yet providing the services in question, which accordingly were not yet subject to declaration.
3. Seven Network Ltd and C7 Pty Ltd applied to the Tribunal to review the two decisions.
4. The Commission was satisfied that the making of the orders would promote the long‑term interests of end‑users of carriage services or services provided by means of carriage services. In determining whether it should order that Foxtel and Telstra be exempt from standard access obligations, the Commission was obliged to have regard to the extent to which such exemption was likely to result in the achievement of:
· The objective of promoting competition in markets for listed services; and
· The objective of encouraging the economically efficient use of and the economically efficient investment in the infrastructure by which listed services are supplied.
5. The Commission was so satisfied because Foxtel and Telstra had given undertakings to the Commission pursuant to s 87B of the Act which set out the terms upon which they were prepared to provide access to access seekers to the digital pay TV services provided by Foxtel and the associated carriage services provided by Telstra which they were proposing to commence in the future upon obtaining orders that they were exempt from the standard access obligations.
6. In those undertakings Foxtel and Telstra undertook to provide access to their digital services once they commenced supplying a digital Subscription Television Carriage service by Telstra and the commercial retail digital cable subscription Television service by Foxtel.
7. The Tribunal was limited in its review to the information given to the Commission, or used by it, in connection with the making of its decisions.
8. The Tribunal was satisfied that by the date of the Commission’s decisions 12 December 2003, information had been given to the Commission which showed that Telstra and Foxtel were going to commence supplying digital cable services at the earliest by March 2004 and at the latest by around April 2005. This is the same timeframe within which they would have been required to provide access under their s 87B undertakings if exemptions were not granted. In such circumstances the Tribunal was not satisfied that exempting Foxtel and Telstra from the standard access obligations was in the long‑term interests of end‑users of the relevant services. Although end‑users would gain access if the exemption order was made, they would also gain access if the exemption order was not made. In that case they would also have the opportunity to seek to have the Commission declare Foxtel and Telstra’s services with the consequence that access seekers may be able to obtain more advantageous terms of access than were provided under the undertakings given to the Commission.
9. The Tribunal also had reservations about some of the terms upon which Foxtel and Telstra were providing access under their undertakings. These provisions related to the exclusion of interactive services from the services to be provided by Foxtel, the tie by Foxtel of access to its basic package, the period of the undertakings and the length of the exemption period which might at the option of Foxtel or Telstra extend to the end of 2015. There were also issues as to the pricing methodologies underlying the Foxtel and Telstra access prices.
10. The Tribunal was therefore not satisfied that the making of the exemption orders sought by Foxtel and Telstra would promote the long-term interests of end-users of the relevant services and refused the applications by Telstra and Foxtel for orders exempting them from the standard access obligations specified in s 152AR of the Act.
AUSTRALIAN COMPETITION TRIBUNAL
Seven Network Limited (No 3) [2004] ACompT 10
PRACTICE AND PROCEDURE – trade practices – telecommunications access regime – review under s 152AV of the Trade Practices Act 1974 (Cth) (“the Act”) – decision of Australian Competition and Consumer Commission to grant an anticipatory exemption order under s 152ATA of the Act – nature of the “review” to be conducted.
Trade Practices Act 1974 (Cth): ss 152 ATA, 152AV, 152AW
Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194, followed
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384, referred to
Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14, referred to
Kingham v Ferguson (2001) 107 IR 403, referred to
File No 10 of 2003
RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATIONS LODGED BY TELSTRA CORPORATION AND TELSTRA MULTIMEDIA
BY: SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED (ACN 082 901 442)
File No 11 of 2003
RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATION LODGED BY FOXTEL MANAGEMENT PTY LIMITED (FOR AND ON BEHALF OF THE FOXTEL PARTNERSHIP AND FOXTEL CABLE TELEVISION)
BY: SEVEN NETWORK LIMITED (ACN 052 816 789) and C7 PTY LIMITED (ACN 082 901 442)
GOLDBERG J (President)
23 DECEMBER 2004
MELBOURNE
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IN THE AUSTRALIAN COMPETITION TRIBUNAL |
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File No 10 of 2003
RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATIONS LODGED BY TELSTRA CORPORATION AND TELSTRA MULTIMEDIA
BY: SEVEN NETWORK LIMITED (ACN 052 816 789)
First Applicant
C7 PTY LIMITED (ACN 082 901 442)
Second Applicant
File No 11 of 2003
RE: APPLICATION FOR REVIEW OF THE DECISION OF THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MADE ON 12 DECEMBER 2003 ON THE SECTION 152ATA DIGITAL PAY TV ANTICIPATORY INDIVIDUAL EXEMPTION APPLICATION LODGED BY FOXTEL MANAGEMENT PTY LIMITED (FOR AND ON BEHALF OF THE FOXTEL PARTNERSHIP AND FOXTEL CABLE TELEVISION)
BY: SEVEN NETWORK LIMITED (ACN 052 816 789)
First Applicant
C7 PTY LIMITED (ACN 082 901 442)
Second Applicant
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THE TRIBUNAL: |
JUSTICE GOLDBERG (President) MR G F LATTA MR R F SHOGREN
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DATE: |
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PLACE: |
MELBOURNE |
RULING OF THE PRESIDENT, JUSTICE GOLDBERG
Introduction
1 On 23 July 2004 I ruled that the review contemplated by s 152AV of the Trade Practices Act 1974 (Cth) (“the Act”) was not limited to identifying error made by the Australian Competition and Consumer Commission (“the Commission”). I ruled that in such a review the Tribunal stands in the shoes of the Commission, albeit limited by s 152AW(4) of the Act. I now publish my reasons for that ruling.
2 Telstra Multimedia Pty Limited is a wholly‑owned subsidiary of Telstra Corporation Limited (collectively “Telstra”). Telstra owns and operates a hybrid fibre coaxial cable (“the HFC Network”), which delivers analogue and digital subscription television carriage services to consumers’ homes. Foxtel, that is the Foxtel partnership (between Telstra Multimedia Pty Limited and Sky Cable Pty Ltd) and Foxtel Cable Television Pty Ltd (collectively “Foxtel”), is a subscription television provider, currently providing analogue and digital pay television services to consumers via Telstra’s HFC Network.
3 In December 2002 Foxtel and Telstra each made an application to the Commission, pursuant to the provisions of s 152ATA of the Act, for an anticipatory exemption order, the effect of which would be to exempt them from one or more of the “standard access obligations” contained in s 152AR of the Act. Section 152ATA(1) provides:
“A person who is, or expects to be, a carrier or a carriage service provider may apply to the Commission for a written order that, in the event that a specified service or proposed service becomes an active declared service, the person is exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service.”
4 The order in s 152ATA(1) is anticipatory in the sense that it applies to a service that has not yet been declared. In this case the “proposed service” was the provision of digital subscription television via Telstra’s HFC Network.
5 On 12 December 2003 the Commission published its determination and made written orders that Foxtel and Telstra were exempt from the standard access obligations contained in s 152AR of the Act.
6 On 30 December 2003 Seven Network Limited and C7 Pty Limited (“the applicants”) filed an application with the Australian Competition Tribunal for a review of both decisions. Each of the applications was made pursuant to s 152AV of the Act, which provides:
“(1) A person whose interests are affected by a decision of the Commission under section 152AT or 152ATA(1) may apply in writing to the Tribunal for a review of the decision.
(2) The application must be made within 21 days after the Commission made the decision.
(3) The Tribunal must review the decision.”
7 The review to be conducted by the Tribunal is undertaken subject to s 152AW of the Act, headed “Functions and Powers of the Tribunal”, which provides:
“(1) On a review of a decision of the Commission under section 152AT or 152ATA, the Tribunal may make a decision:
(a) in any case – affirming the Commission’s decision; or
(b) in the case of a review of a decision of the Commission to make anorderunderparagraph 152AT(3)(a)orparagraph 152ATA(3)(a)–setting aside or varying the Commission’s decision; or
(c) …”
8 Section 152AW also provides:
“(3) For the purposes of a review by the Tribunal, the member of the Tribunal presiding at the review may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.
(4) For the purposes of a review, the Tribunal may have regard only to:
(a) any information given, documents produced or evidence given to the Commission in connection with the making of the decision to which the review relates; and
(b) any other information that was referred to in the Commission’s reasons for making the decision to which the review relates.
(5) If:
(a) a person applies to the Tribunal for a review of a decision of the Commission under section 152AT or 152ATA; and
(b) the Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;
the Tribunal is taken to have made, at the end of that 6-month period, whichever of the following decisions is applicable:
(c) in the case of a review of a decision of the Commission to make an order under paragraph 152AT(3)(a) or paragraph 152ATA(3)(a), where the applicant for review is seeking to have the Tribunal set aside the Commission’s decision - a decision setting aside the Commission’s decision;
(d) …
(6) The Tribunal may, by written notice given to the applicant for review, extend or further extend the 6-month period referred to in subsection (5), so long as:
(a) the extension or further extension is for a period of not more than 3 months; and
(b) the notice includes a statement explaining why the Tribunal has been unable to make a decision on the review within that 6‑month period or that 6-month period as previously extended, as the case may be.
(7) As soon as practicable after the Tribunal gives a notice under subsection (6), the Tribunal must cause a copy of the notice to be made available on the Internet.”
9 The hearings of the applications for the reviews were set down for 5 August 2004. A preliminary issue was raised which needed to be resolved before the hearings commenced. The issue related to the nature of the review to be conducted by the Tribunal pursuant to s 152AV of the Act.
the Nature of the Tribunal’s review
10 Foxtel and Telstra contended that the review by the Tribunal articulated in s 152AV of the Act is not an “appeal de novo” but rather an appeal or review that requires the applicants to satisfy the Tribunal that the Commission committed an identifiable error, that is that an error was made by the Commission in making the decision to grant Foxtel and Telstra the exemption orders.
11 The Commission submitted that the Tribunal was required to form its own view whether the exemption order should be made, but that the view must be formed on the documents that were before the Commission in accordance with s 152AW(4).
12 The applicants contended that pursuant to s 152AV of the Act the Tribunal’s role is that of merits review of the Commission’s decision to grant an exemption order, and accordingly there is no requirement for the Tribunal to identify any error in the Commission’s decision.
The legislative context of s 152AV
13 It is useful to consider the legislative history of Pt XIC of the Act, entitled “Telecommunications Access Regime”, in determining the nature of the “review” under s 152AV. In 1996 the Trade Practices Amendment (Telecommunications) Bill 1996 introduced Pt XIC into the Act. According to the Explanatory Memorandum accompanying that Bill, Pt XIC set out an access regime for the telecommunications industry. At that stage the regime provided for the declaration of carriage services and related services by the Commission either following a recommendation of the telecommunications access forum or after a public inquiry. After the Bill was passed, and Pt XIC became part of the Act, s 152AR set out the standard access obligations, and, subject to ss 152AS and 152AT, all carriers and carriage service providers were obliged to comply with the standard access obligations in regard to declared services that they supplied either to themselves or a third party. Section 152AT provided a mechanism for individual carriers or carriage service providers to apply in writing to the Commission for an exemption from one or more of the standard access obligations. In relation to s 152AT, the Explanatory Memorandum stated, at 51:
“Under proposed s. 152AT, a person whose interests are affected by a decision to make, or refuse to make, an exemption will be able to seek merits review of the decision by the Australian Competition Tribunal.” [emphasisadded]
14 In relation to proposed s 152AV, the Explanatory Memorandum provided:
“Proposed s. 152AV provides a mechanism for review of a decision of the ACCC to grant, or refuse to grant, an exemption to a person from one or more standard access obligations under proposed s. 152AT. A person whose interests are affected by a decision of the ACCC under proposed s. 152AT may apply to the Australian Competition Tribunal within 21 days after the decision. The ACT must then review the decision.”
15 Section 152AX was also inserted into the Act in the following terms:
“Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under section 152AT or 152ATA.”
In relation to the proposed s 152AX (as it then was), the Explanatory Memorandum stated:
“Proposed s. 152AX clarifies that Division 1 of Pt IX of the Trade Practices Act, to the extent that the Division is relevant, does not apply to a review of an ACCC decision to refuse or approve an application for an exemption under proposed s. 152AT.”
16 The Trade Practices Amendment (Telecommunications) Bill 2001 (“the 2001 Bill”) introduced amendments to Pt XIC. According to the Explanatory Memorandum the 2001 Bill made a series of amendments “to streamline the telecommunications access regime”.
17 The Explanatory Memorandum set out a number of issues and, in particular, noted that:
“The time taken to resolve some disputes is a matter of concern to large parts of the telecommunications industry. Undue delay in the resolution of telecommunications access disputes is likely to impede competition in the telecommunications industry, and thereby adversely affect the quality and price of telecommunications services offered to customers.”
18 The Explanatory Memorandum noted that there were a number of options available in relation delay, including whether to take a legislative or administrative approach:
“While some measures, such as streamlining merits review, can only be implemented by legislation, other measures relating to Commission arbitration can be implemented either administratively or through legislation.” [emphasis added]
19 The 2001 Bill inserted a new s 152DOA into Pt XIC and was designed to resolve matters relating to the Tribunal’s review of the Commission’s arbitration of access disputes. It provided the Tribunal with a structure for reviewing the access disputes arbitrated by the Commission. Section 152DOA provided:
“Matters the Tribunal may have regard to for the purposes of the review
For the purposes of the review, the Tribunal may have regard only to:
(a) any information given, documents produced or evidence given to the Commission in connection with the making of the final determination; and
(b) any other information that was referred to in the Commission's reasons for making the determination.
It is apparent from the Explanatory Memorandum to the 2001 Bill that at that time the nature of the review by the Tribunal of the Commission’s access determinations was intended to be “merits review”. The Explanatory Memorandum noted that in relation to the post‑Commission arbitration process, there were a number of options for expediting “the merits review and appeal processes”. The Explanatory Memorandum expressed a number of options for expediting the process, including to “abolish merits review”. That option was not expressed in the legislation. However one option, which was legislated in s 152DOA, was described in the Explanatory Memorandum as being to:
“…limit the information which the Tribunal may take into account in a review on the merits of a determination, to that which was considered by the Commission in making the determination”.
20 It is apparent that at that time the review contemplated by s 152DO and s 152DOA was “merits review”. It should be noted that ss 152DO and 152DOA have now been repealed.
21 Further amendments were made to Pt XIC of the Act by the Telecommunications Competition Bill 2002 (“the 2002 Bill”), in particular amendments to ss 152AT, 152AV and 152AX in order to reflect the insertion of s 152ATA into the Act. The Explanatory Memorandum noted that other proposed provisions removed “merits review” by the Tribunal in relation to final access determinations made by the Commission, but that the amendments:
“…will not affect the ability of a party to seek merits review of decisions of the ACCC under Pt XIC in relation to an application for an exemption order or an access undertaking, nor the ability to seek judicial review of a final ACCC determination.”
22 The 2002 Bill made a number of amendments to s 152AT, which enabled a carrier or carriage service provider to apply to the Commission for a written order exempting it from any or all of the standard access obligations under s 152AR. A new s 152ATA was introduced into the Act which would allow for a prospective order exempting a person who was, or was expected to be, a carrier or carriage service provider from any or all of the standard access obligations in the event that a specified service or a proposed service became an active declared service. Item 65 in the 2002 Bill related to s 152AV(1) and provided for a review of a decision under s 152ATA. Section 152AV already contained a provision for a review of a decision of the Commission under s 152AT. The Explanatory Memorandum accompanying the 2002 Bill provided:
“Section 152AV provides that a person whose interests are affected by a decision of the ACCC under section 152AT may apply to the ACT for a review of the decision.
Item 65 amends subsection 152AV(1) by inserting a reference to proposed section 152ATA. The proposed amendment will mean that a person whose interests are affected by a decision of the ACCC under proposed subsection 152ATA(1) … will be able to seek review of the decision by the ACT. The proposed amendment is consequential to the proposed amendment in Item 62 [the new s 152ATA]”.
23 It should be noted that there is no intention found in the Explanatory Memorandum to alter the nature of the review which already existed under s 152AV.
24 The Explanatory Memorandum to the 2002 Bill noted that s 152AW(4) had the consequence that an applicant would not be able to put information, documents or evidence to the Tribunal in a review that were not first put before the Commission. It does not appear that this provision altered the nature of the review but was rather a streamlining provision.
25 The Explanatory Memorandum also noted that the amendment to s 152AX, which inserted a reference to proposed s 152ATA, was a consequential amendment and provided that Div 1 of Pt IX of the Act did not apply to a review by the Tribunal of a decision made by the Commissioner under s 152AT and now s 152ATA. It should be noted that Div 1 of Pt IX dealt with separate topics relating to reviews of authorisations sought from the Commission.
The nature of the review
26 There is no magic in the concept of a “review” provided for in s 152AV. A review can mean different things to different people and the content of a review will vary depending upon the statutory context in which it appears. The nature of the review contemplated by s 152AV must ultimately be resolved by means of an approach of statutory construction. The issue was put succinctly by the majority of the High Court (Gleeson CJ, Gaudron and Hayne JJ) in Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at 202‑203:
“[11] It was pointed out in Brideson [No 2] that ‘the nature of [an] appeal must ultimately depend on the terms of the statute conferring the right [of appeal]’. The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.”
27 The primary consideration when determining the meaning of “review” in s 152AV is to put that provision in the context in which it appears in the legislation: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Network Ten Pty Limited v TCN Channel Nine Pty Limited [2004] HCA 14 at par [11]. That context includes the progressive enactment of an access regime for telecommunications infrastructure which commenced in 1996 and was substantially amended and expanded in 2001 and 2002. As I have shown earlier by reference to the Explanatory Memorandum for each of the relevant Bills relating to Pt XIC, the intention of the legislation was to provide for merits review.
The applicants’ submissions
28 The applicants raised a number of constructions from the terms of the statute that supported their submissions that s 152AV provided for merits review of the Commission’s decision to grant an exemption order, namely:
· The Tribunal “reviews” the decision, in the terms of s 152AV, and has all the functions and powers of the Commission (s 152AW(1)), so it essentially stands in the shoes of the Commission. This is consistent with merits review.
· The Tribunal’s role is to consider whether the decision is one which should be made, not one which might properly have been made, and is not constrained in its process by the decisions made by the Commission (other than the constraint on material in s 152AW(4)).
· The Tribunal’s decision is taken to be a decision of the Commission (s 152AW(2)).
29 The applicants further submitted that the Tribunal’s power to impose conditions or limitations upon the making of the exemption order under s 152ATA(4) is inconsistent with a role limited to identifying error with the Commission’s decision, as is the existence of s 152AW(3), that allows the Tribunal to require the Commission to give information to the Tribunal.
30 I accept the applicants’ submissions that the terms of the statute provide a clear parliamentary intention that the Tribunal’s role is one of merits review.
Telstra and foxtel’s submissions
31 Telstra and Foxtel relied on the following matters and factors in support of their submission that the review was not a hearing de novo or a rehearing on the merits but was rather a review which required the applicants to satisfy the Tribunal that there was error on the part of the Commission in making the decision to grant the exemption order:
· Section 152AW(4) specifically limited the information to which the Tribunal can have regard in reaching its decision, namely information, documents and evidence which were before the Commission.
· Judicial consideration of similar legislation has provided for review on the basis of establishing error.
· Section 152AX expressly excludes the operation of Div 1 Pt IX of the Act from a review by the Tribunal of a decision of the Commission under s 152ATA. If s 152AX expressly excludes the operation of a provision which provides for a rehearing, then s 152AV must provide for a different form of review.
· The provisions of ss 152AV and 152AW are clear in their terms that a hearing de novo is not envisaged, and as such it is not appropriate to refer to extrinsic materials as an aid to interpretation (s 15AB of the Acts Interpretation Act 1901 (Cth)).
The limitation on documents under s 152AW(4)
32 Telstra and Foxtel relied upon the provisions of s 152AW(4), which limits the information and material to which the Tribunal may have regard on the review, in support of the proposition that the Tribunal was limited to finding error in the reasoning of the Commission. According to Foxtel, in an appeal de novo there is always a conferral of power to receive further evidence: Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 272, 274.
33 The Commission submitted that although the words of s 152AW(4) place a restriction on the papers to which the Tribunal may refer, the subsection does not convey that the Tribunal must identify error. The restriction on material was explained as a mechanism by which the legislature sought to expedite the review process.
34 The applicants similarly argued that all that subs 152AW(4) does is to limit material before the Tribunal and it does not, either expressly or impliedly, address or alter the nature of the review to be conducted by the Tribunal.
35 As I have noted earlier, there is nothing in the legislative history of s 152AW(4) that warrants a conclusion that the Tribunal’s role in review is limited to finding error, or the conclusion that subsequent amendments to Pt XIC were intended to disturb the intention found in the Explanatory Memoranda that the review was to be a “merits review”. In any event, I consider that the terms of s 152AW(4) support the proposition that the review was intended to be a merits review in the sense of a reconsideration of the issues facing the Commission. The limitation on the material to which the Tribunal may have regard is indicative of the proposition that the Tribunal is intended to canvass the areas or issues raised before the Commission, albeit on the same basis, that is the factual basis as was before the Commission and not on an updated or expanded basis. If the review to be conducted by the Tribunal were one based on identifying error in the Commission’s reasoning, it would not be necessary so to limit the material.
Analogy with like legislative provisions
36 Telstra and Foxtel relied upon the recent decision of the Australian Competition Tribunal in Application by Epic Energy South Australia Limited [2002] ACompT 4 where at par [20] the Tribunal said:
“In the absence of a contra legislative indication, the conferring of a right of appeal or review to an administrative tribunal against an administrative decision is not a grant of jurisdiction to make a fresh or original decision.”
That decision was based upon legislation in a different context and is of little assistance in the present circumstances.
37 The parties each sought, to different extents, to rely upon analogy with review provisions in separate, albeit similar, legislation that had been the subject of judicial consideration. I do not consider that is useful to reason by way of analogy with these provisions, as the authorities make it clear that the task before the Tribunal is to construct the meaning of “review” from the statutory context in which it is found. Different legislative provisions and different statutory contexts provide no assistance in construing s 152AV in the context of Pt XIC.
Section 152AX exclusion
38 It is well established that in an application for review of a decision of the Commission brought pursuant to Div 1 of Pt XI of the Act, the Tribunal undertakes a hearing de novo of the material before it (Re 7‑Eleven Stores Pty Ltd, Australian Association of Convenience Stores Inc and Queensland Newsagents Federation (1994) ATPR 41‑357 at 42,654). Telstra and Foxtel both argued that s 152AX, which provides that “Division 1 of Part IX does not apply in relation to a review by the Tribunal of a decision made by the Commission under section 152AT or 152ATA”, indicates that a hearing de novo is ousted when an application for review of exemption decisions is brought under Pt XIC.
39 The Commission and the applicants submitted that it was clear that the purpose of s 152AX was to distinguish and separate review proceedings brought under Pt IX of the Act from those brought under the specific regime for review of decisions made under ss 152AT and 152ATA that are dealt with in s 152AW.
40 I accept the submissions of the Commission and the applicants. It is clear that s 152AX was not intended in any way to define the nature of the review conducted under s 152AW and that the intention was to create a separate legislative review process for review of exemption decisions under ss 152AT and 152ATA. So much is clear on the face of the legislation.
Terms of the statute
41 For reasons already referred to above, I do not consider that the terms of the statute require the Tribunal to find error in the decision of the Commission, but rather indicate that a merits review is to be conducted on the same material that was placed before the Commission for its determination.
42 Submissions were made on issues such as the presumption of regularity, the public policy nature of the decision and the administrative nature of the decisions but none of those subjects assist in determining the proper construction of s 152AV.
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I certify that the preceding forty‑two (42) numbered paragraphs are a true copy of the Ruling herein of Justice Goldberg (President). |
Associate:
Dated: 23 December 2004
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Counsel for the applicants: |
Mr N Young QC with Mr J R J Lockhart |
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Solicitor for the applicants: |
Freehills |
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Counsel for Foxtel Management Pty Ltd: |
Mr N J O’Bryan SC with Mr M H O’Bryan |
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Solicitors for Foxtel Management Pty Ltd |
Allens Arthur Robinson |
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Counsel for Telstra Corporation Limited and Telstra Multimedia Pty Limited: |
Mr T F Bathurst QC with Mr T Castle |
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Solicitors for Telstra Corporation Limited and Telstra Multimedia Pty Limited: |
Malleson Stephen Jaques |
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Counsel for the Australian Competition and Consumer Commission: |
Mr T Ginnane S.C. with Mr D Star |
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Solicitor for the Australian Competition and Consumer Commission: |
Australian Competition and Consumer Commission |
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Date of Hearing: |
23 July 2004 |
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Date of Ruling: |
23 July 2004 |
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