Is there an implied entitlement disclosure condition for notices under s 522(2) of the Telecommunications Act?
39 I am satisfied that there is an implied entitlement disclosure condition in s 522(2) of the Telecommunications Act.
40 It is convenient to begin the analysis with the authorities upon which Mosaic relied.
41 None of those authorities related to s 522 of the Telecommunications Act. The Explanatory Memorandum to the Telecommunications Bill 1996 (Cth) explained that Pt 27, of which s 522 is part, was based on Pt 4.9 of the Employment Services Act 1994 (Cth). The ACMA submitted, without demur, that there do not appear to be any authorities which have considered the implication of any such condition in respect of either s 522 or "the relevant equivalent" in the Employment Services Act.
42 In FCT v ANZ the High Court was concerned with s 264(1) of the Income Tax Assessment Act 1936 (Cth), which gave the Commissioner of Taxation the power: (a) to require any person by notice in writing to furnish the Commissioner with such information as the Commissioner may require; and (b) to attend and give evidence "concerning his or any other person's income or assessment, and may require him to produce all books, documents and other papers whatever in his custody or under his control relating thereto".
43 Gibbs ACJ held at 525 that:
To be valid a notice to produce documents under s. 264(1)(b) must of necessity identify with sufficient clarity the documents which are required to be produced. However the notice must in my opinion go further: it must show the person to whom it is addressed that any document which he is required to produce is one whose production the Commissioner is entitled to require. Where a notice is addressed to a taxpayer who is required to produce documents which relate to his own income or assessment, the very description of the documents (for example, "your books of account") may be enough to show that the notice is within the power conferred by the section. Where however the notice is addressed to one person, requiring him to produce the documents of another, the notice must show that those documents relate to the income or assessment of a particular person, who must be identified. The power is confined to giving a requirement of a particular kind - a requirement to produce documents relating to the income or assessment of some person - and a notice requiring the production of documents not so related is beyond the scope of the power.
(Emphasis added.)
44 Most of the authorities upon which Mosaic relied, however, relate to s 155 of the Trade Practices Act 1974 (Cth) (TPA) (now the Competition and Consumer Act 2010 (Cth)).
45 At the time of the first of these authorities, Pyneboard v Trade Practices Commission (1982) 57 FLR 368; 39 ALR 565, s 155(1) of the TPA relevantly enabled a member of the Trade Practices Commission (now the Australian Competition and Consumer Commission) to require a person, by notice in writing to furnish information, produce documents to the Commission or give evidence "[w]here the Commission, the Chair[person] or a Deputy Chair[person] has reason to believe that [the] person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of [the] Act …". It was an offence to refuse or fail to comply with a notice under the section, punishable by a fine of $1000 or imprisonment for three months (s 155(5)).
46 In Pyneboard at 57 FLR 374; 39 ALR 570 the Full Court held that, where refusal or failure to comply with a notice under s 155 of the TPA is punishable by imprisonment or fine, the power to require information to be furnished and documents to be produced is subject to two "implicit conditions of validity" relating to the form or content of the notice.
47 The first is that the notice conveys "with reasonable clarity" the information the recipient is required to furnish or the documents the recipient is required to produce. Nevertheless the Full Court noted (at 375, 570-571):
Artificial dissection, in the cause of determined obfuscation, can introduce an argumentative element of uncertainty into words which, when read reasonably in context, are adequate to convey a plain and clear meaning. Provided a notice makes it reasonably clear, in the circumstances in which it is given and on a fair reading of its terms, what information or documents are required, the requirements of s. 155(1) as to clarity will be satisfied. In this regard, the mere fact that parsing and analysis in the artificial atmosphere of the courtroom can lead to the identification of a number of latent ambiguities will not invalidate what, as a matter of common sense, is reasonably clear.
48 The second is that the notice discloses that the Commissioner is entitled to require the recipient to furnish the information or produce the documents described in the notice. The Full Court held (at 375, 571), applying FCT v ANZ, that this requirement will not be satisfied "unless it appears from the notice that the information or documents sought are information or documents 'relating' to one or more 'matters' of a kind described in [s 155(1)]". The Full Court stressed, however, that this question, like the former, is "not to be approached in an over-technical or hypercritical way" (at 376, 571).
49 In Seven Network at [49] Sackville and Emmett JJ summarised the effect of the authorities concerning the interpretation of s 155(1) of the TPA:
The authorities have established a number of propositions concerning the interpretation of s 155(1) of the TP Act. They include the following:
(i) In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, the notice must:
(a) convey with reasonable clarity to the recipient the information that must be furnished; and
(b) disclose that the ACCC is entitled to require the recipient to furnish the specified information:
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 at 374, per curiam.
(ii) The second of these requirements will not be satisfied unless it appears from the notice that the information sought is information "relating" to one or more "matters" of a kind described in s 155(1): Pyneboard v TPC at 375; SA Brewing v Baxt at 369-370; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581 at 584, per Bowen CJ and Neaves J. However, the question whether a notice discloses the necessary "relatedness" is not to be approached in an "over-technical or hypercritical way": Pyneboard v TPC at 376. Moreover, the "relatedness" is to a proper inquiry into the suspected offences: Panelboard Pty Ltd v Trade Practices Commission (1981) 59 FLR 395 at 407, per Fox J.
(iii) Section 155(1) does not require the Chairperson of the ACCC to have "reason to believe" that a specified matter constitutes or may constitute a contravention of the TP Act. The Chairperson must, however, have reason to believe that the relevant person is capable of furnishing information relating to the matter specified in the notice: [WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175] at 179, per Brennan J (with whom Bowen CJ agreed); TNT Australia Pty Ltd v Fels [1992] ATPR 40,595 (41-190) at 40,598-40, 599, per Gummow J. It follows that the Chairperson or other officer must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected: WA Pines v Bannerman at 180. In addition, there must be facts in existence which are sufficient to induce that belief in a reasonable person: George v Rockett at 112.
(iv) The word "matter" in s 155(1) is to be construed in its ordinary sense of an affair or thing: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450 at 474, per Franki and Northrop JJ; SA Brewing v Baxt at 369. It refers to a body of facts which constitutes or may constitute a contravention of the TP Act. Whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC or its officers: WA Pines v Bannerman at 179.
(v) When s 155(1) speaks of a matter which may constitute a contravention, it refers to a body of facts not fully known and which may, when fully known, reveal themselves as constituting a contravention: WA Pines v Bannerman at 179. The words "may constitute" enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: SA Brewing v Baxt at 370. It is not necessary for the Court to determine whether a contravention has occurred; but equally it will not "idly speculate" or "draw on improbable circumstances" to uphold a notice: SA Brewing v Baxt at 370. An alternative formulation is that the Court can take account of facts which may "reasonably be suspected" to have occurred: WA Pines v Bannerman at 179.
(vi) Where the matter referred to in the notice, after allowing for undiscovered facts, is incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1): SA Brewing v Baxt at 371-372.
(vii) In view of the principle that a court should not adopt an "over-technical or hypercritical approach" to the construction of a notice, there is no requirement that the notice "plead" all the facts necessary to constitute a contravention or possible contravention of the TP Act: SA Brewing v Baxt at 370.
(viii) Information which tends to negative a suspected contravention or liability to conviction or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1). It follows that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person: WA Pines v Bannerman at 180.
50 The question at hand falls to be determined by reference to the text of s 522 of the Telecommunications Act considered in its context.
51 The ACMA submitted that s 522(5) expressly addresses what a notice is required to include: it "must set out the effect of subsection (4) and section 525". The ACMA pointed to other sections of the Act which contain similar provisions. It argued that "the implication of an additional requirement as to the form of the notice over and above what can be gleaned from section 522 itself is inconsistent with this clear expression of legislative intent through the drafting mechanism of expressing what is required to be contained in a notice".
52 It does not follow from the mere fact that the Act specifies that certain matters must be included that other matters need not be included. But there must be something about the nature, scope and/or purpose of the Telecommunications Act to indicate that an entitlement disclosure condition is implied.
53 So what is there about the nature, scope and/or purpose of the legislation to indicate that such a condition was implied?
54 The power conferred by s 522 is intrusive and its scope is broad. Critically, criminal sanctions are imposed for non-compliance and for providing false or misleading information.
55 While the authorities upon which Mosaic relied concern different legislation, the principles for which they stand are not confined to that legislation. In D'Anastasi v Environment, Climate Change and Water (NSW) (2011) 81 NSWLR 82 at [42], after referring to Pyneboard, Young JA (with whom Campbell JA and Sackville AJA agreed at [1] and [103] respectively) observed that the requirement that the giver of a notice specify in the notice that the information or documents sought were information or documents relating to one or more matters of a kind described in the legislation conferring the power to issue the notice was not unique to the Trade Practices Commission. To the contrary, his Honour added, "[i]t has been the standard for statutory notices for a long time". In that case the principles in Pyneboard and SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357 (SA Brewing v Baxt) were applied to a notice purportedly issued under s 193 of the Protection of the Environment Operations Act 1997 (NSW).
56 The same approach has also been taken, for example, to the power to issue a notice under s 712 of the Fair Work Act 2010 (Cth) requiring the production of records or documents to a Fair Work Inspector: see Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Inspector Lam [2018] FCA 1379 at [27] (Bromberg J); Fair Work Ombudsman v United Petroleum Pty Ltd [2020] FCA 590 at [35] (Anderson J); and 85 Degrees Coffee Australia Pty Ltd v Rodwell [2020] FCA 1190; 299 IR 280 at [20]-[23] (Katzmann J).
57 Since the refusal or failure to comply with a s 522 notice is a punishable by a fine and the giving of information that is false or misleading is punishable by imprisonment, the weight of authority indicates that the power conferred by s 522(2) is subject to an implied condition that the notice discloses that the ACMA is entitled to require the recipient to give the information or produce the documents described in the notice.
58 It is true, as the ACMA submitted, that Mosaic's submissions focus on the ACMA's power of investigation in Pt 26 of the Telecommunications Act, not its power to require the production of information or documents which is contained in Pt 27. It is true, too, as the ACMA also submitted, that there is no reference to "matters" in Pt 27. But Pt 27 cannot be read in isolation from Pt 26. "ACMA's telecommunications functions" and "ACMA's telecommunications powers" are defined terms in the Telecommunications Act. The former means "the functions that are telecommunications functions, in relation to the ACMA, for the purposes of the [ACMA Act]" and the latter the powers conferred on the ACMA by a number of Acts including, relevantly, the Telecommunications Act and the Spam Act (s 7). One of the ACMA's telecommunications powers is the power to conduct an investigation. That is the power with which Pt 26 is concerned. It is evident that one of the purposes of the ACMA's information-gathering powers, for which Pt 27 provides, is to facilitate or assist its investigation powers.
59 Where, as here, the information and documents are sought for such a purpose, in accordance with the line of authorities upon which Mosaic relied, a notice issued under s 522 of the Telecommunications Act must disclose that the ACMA has reason to believe that the person who is served with the notice has information or documents relevant to that purpose. It follows, too, from those authorities, that a notice issued under s 522 will be invalid if it does not appear from its terms that the information required to be given or the documents required to be produced relate to the exercise of those powers.
60 The ACMA argued that there is nothing in the text of s 522 to indicate that the words "any such documents" is a reference to documents which are actually relevant to the ACMA's functions and powers. Rather, it submitted that s 522 is conditioned only on the ACMA's belief that they are relevant. That is not so. The section applies to a person "if the ACMA has reason to believe …". There must be facts in existence sufficient to adduce the relevant belief in a reasonable person: Seven Network at 49 above.
61 The ACMA also argued that the absence of the word "matter" in s 522 or any link in s 522 to any "matter" indicates that there is no reason to limit the power conferred by s 522 by reference to a "matter". In support of this argument the ACMA observed that the power to issue a notice under s 522 is not confined to information in connection with an investigation. The ACMA submitted that its telecommunications functions, for example, are defined in s 7 of the Telecommunications Act to mean telecommunications functions in relation to the ACMA for the purposes of the ACMA Act. These functions include "to advise and assist the telecommunications industry" (ACMA Act, s 8(1)(b)) and "to report to and advise the Minister in relation to the telecommunications industry" (ACMA Act, s 8(1)(c)). The ACMA submitted that a Pt 27 notice could be used for this purpose and none of these functions refers to "a matter".
62 I accept the ACMA's submission that the power conferred by s 522 is not confined to information (or documents) connected to an investigation. In the present case, however, the notice is being issued for the purpose of an investigation. The power to investigate conferred by s 510 is limited to a matter of a kind referred to in s 508. It seems to me that, where the power is being exercised for the purpose of an investigation, the entitlement disclosure condition will not be satisfied unless it appears from the notice that the information or documents sought relate to one or more matters of that kind. Here, those matters consist of a body of facts which, depending on what other facts may come to light during or as a result of the investigation, may constitute a contravention of s 16 or 18 of the Spam Act.