Discussion of Issues
45 I must commence with the proposition that the legislature intended, when it passed Part 10 of the 1997 Act and Part 6 of the 1999 Act, that eligible carriage service providers should join the existing TIO scheme. This is the clear import of the explanatory memoranda, if not of the provisions themselves. And whilst Mr Leeming correctly points out that the effect of the 1997 Act was to significantly alter the membership structure of the TIO scheme, it is difficult to see how this affects the question of construction raised here. The institutional structures which were put in place back in 1993 remained untouched under both the 1997 and the 1999 Acts.
46 The legislation is not, however, silent about all aspects of the TIO scheme. It requires that it meet certain conditions. In particular, s 128(4) mandates that the scheme provide for the TIO to (a) investigate, (b) make determinations relating to, and (c) give directions relating to complaints about carriage services by end-users of those services.
47 This requirement is met under the terms of the TIO Constitution. Clause 3 of the Constitution specifies the "Functions of the TIO", the first of which is "to investigate, make determinations relating to, and give directions relating to complaints about carriage services by end-users of those services". Clause 6.1 of the Constitution (quoted above at par [32]) empowers the TIO to make determinations and directions which are binding on members. Accordingly the TIO scheme, on its face, meets the requirements of s 128(4).
48 Section 128(7) of the 1999 Act provides that membership of the scheme must be open to all carriers and carriage service providers. This is a corollary to the obligation, under s 128(1), that all carriers and carriage service providers must enter into the TIO scheme. The requirement of s 128(7) is met by virtue of the Articles of Association of TIO Ltd, which require the company to accept an application for membership if the applicant is required by the Act to participate in the TIO scheme.
49 Accordingly, the TIO scheme, as presently conducted, appears to meet the positive requirements of s 128.
50 Mr Leeming submits that the TIO scheme, as it currently operates, is not the scheme which is recognised by the legislation in that "it goes well beyond what the legislation envisages". His primary submission in this regard is that membership of the TIO scheme has the potential to operate unfairly to the respondents and to deprive them of their fundamental common law rights. In these circumstances, only legislation in clear and unambiguous terms will be construed so as to have this effect. Section 128, he submits, is anything but clear and unambiguous.
51 In making this submission Mr Leeming, as indicated, relies strongly on the High Court judgments in Bropho and Coco. Both of them bear discussion here.
52 In Bropho the court was concerned with the rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown. The majority judges (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) made the following observations:
"One can point to other 'rules of construction' which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such 'rules' are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g. Benson v. Northern Ireland Road Transport Board) which would operate retrospectively (see, e.g. Maxwell v. Murphy) which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, e.g. Macgrath v. Goldsbrough, Mort & Co. Ltd,) or which would take away property without compensation (Attorney-General v. De Keyser's Royal Hotel).
The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is 'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' (Potter v Minahan, and see, also, Ex parte Walsh and Johnson; In re Yates). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear."
53 The High Court again discussed this principle in Coco. There, Mason CJ, Brennan, Gaudron and McHugh JJ said as follows:
"The insistence on express authorisation of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.
So long as the requirement for express statutory authorization is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J. in Re Bolton; Ex parte Beane in these terms:
'Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.'
In Bropho v. Western Australia, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ. pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:
'in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.'
At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.
The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope."
54 Mr Leeming submits that there are a number of aspects of the TIO scheme which are intrusive of common law rights. He specifies the right to receive reasons as one of these. However I do not understand this to be a common law right. (See Public Service Board of New South Wales v Osmond (1986) 159 CLR 657). The only common law right which I perceive as being affected by membership of the scheme is the right to have one's claims or disputes litigated in a court of law. Under the TIO scheme the TIO's determinations and directions are binding upon members who are denied the right of litigating these issues in courts of law. On the other hand, the TIO scheme provides a forum for resolving complaints against members in an expeditious and informal manner. Members are given an opportunity to present their case. There is no apparent abrogation of the rules of natural justice.
55 It is also important to remember that it is not membership of the company which abrogates members' rights in this matter (assuming that their rights are abrogated), but rather membership of the TIO scheme. Moreover the aspect of the scheme which has this effect is specifically mandated in the legislation. As already mentioned, s 128(4) of the 1999 Act (s 246(3) of the 1997 Act) requires that the TIO, inter alia, make determinations and give directions relating to complaints by end-users of telecommunications carriage services. One must assume that the legislature, in imposing this requirement, intended the TIO's determinations and directions to be binding upon members. Otherwise there would be little point in this provision. And if this matter needed legislative emphasis, it is received in s 132 of the 1999 Act (s 250 of the 1997 Act) which requires members of the scheme to comply with the scheme. This must be taken as requiring them to comply with determinations or directions issued by the TIO under its legislative mandate.
56 It follows that the aspect of the scheme which, according to Mr Leeming's argument, is most intrusive of members' rights is, to a large extent, mandated by legislation.
57 The High Court in Coco acknowledged that the presumption against statutory interference with fundamental rights might be displaced by implication, for instance if it is necessary to prevent the statutory provision from becoming inoperative or meaningless. This in my view is particularly apposite in this case, particularly if one examines what would happen if the respondents' contentions were to succeed, and a negative answer be given to this first question.
58 In the event of a "no" answer to the first question, the respondents would be absolved of any obligation to become members of TIO Ltd. But where would that leave them under the legislation? They would still have an obligation under s 128 to "enter into a scheme providing for a Telecommunications Industry Ombudsman". Under s 128(3) there is only one scheme, namely that operated by TIO Ltd. Membership of that scheme is achieved through membership of the company. No other means of gaining membership is provided under the TIO Constitution. Therefore the respondents would be unable to join the scheme referred to in subss 128(2) and (3). They would be forced to join some alternative scheme which did not require membership of the company as a means of gaining membership of the scheme. But this was precisely the evil which the legislature sought to avert when it inserted subs 128(3) into the 1999 Act. Indeed one cannot help wondering whether the solicitor's letter which ultimately led to the insertion of subs(3) into s 128 might not have been prompted by precisely the same concerns that the respondents have expressed in these proceedings.
59 I return to Mr Leeming's submissions relating to the abrogation of fundamental rights. As I commented earlier, it is not membership of the company which results in any reduction or derogation of members' rights. Rather it is membership of the TIO scheme. And there is no ambiguity whatsoever as to the legislative requirement that internet service providers enter into that scheme.
60 In my view, the language of the legislation is clear and unambiguous. Internet service providers are required to become members of the TIO scheme as operated by TIO Ltd. There is only one such scheme, under which membership is gained through membership of the company, TIO Ltd.
61 The first question should be answered in the affirmative.