(a) Vodafone's primary case
68 As noted above, Vodafone's primary contention is that, for the purposes of s 152AL(3)(a), an inquiry must commence with a "specified eligible service" which effectively means that, at the time a public inquiry commences, the ACCC must already have determined the terms of a proposed declaration.
69 For the following reasons, Vodafone's primary case should be rejected.
70 First, I accept the ACCC's submission that, for the purpose of determining whether an inquiry is an inquiry within the meaning s 152AL(3)(a) the correct question is not to put at the forefront of the case, as Vodafone does, the meaning of the word "specified" or the phrase "specified eligible service". Rather, the correct approach is to focus on the issue whether, at the time when the ACCC is determining whether or not to make a direct declaration, the preceding public inquiry can properly be characterised as being "about a proposal to make the declaration". The central flaw in Vodafone's primary case is that it obscures the important fact that a public inquiry under Pt 25 of the Telecommunications Act is distinct from, albeit related to, the making of a declaration under s 152AL of the CC Act.
71 The four conditions to the ACCC's power to make a declaration under s 152AL(3) are set out in paragraphs (a) to (d) of that provision, namely:
(a) that the ACCC "has held" a public inquiry under Pt 25 of the Telecommunications Act "about a proposal to make the declaration";
(b) the ACCC has produced a report about the inquiry under s 505 of the Telecommunications Act;
(c) the declaration is made not more than 180 days after the report was published; and
(d) the ACCC is satisfied that the making of the declaration will promote the LTIE.
72 There is a clear relationship between the conduct of a Pt 25 public inquiry and the making of a declaration, but they are distinct processes. This is reflected in the fact that a declaration may be made within a six month period after a report on a Pt 25 inquiry is published. Moreover, it is implicit in s 152AL(3) that a Pt 25 inquiry terminates when a report is published in accordance with s 505 of the Telecommunications Act.
73 Secondly, Vodafone's primary case sits uncomfortably with the breadth of the provisions in Pt 25 of the Telecommunications Act. It is notable that the relevant provisions give the ACCC considerable flexibility in initiating and conducting public inquiries, which is scarcely surprising having regard to what one would expect from the notion of an "inquiry", which is intended to inform the ACCC's decision-making. Such provisions include:
s 497, which empowers the ACCC to hold a public inquiry "about a matter relating to the ACCC's telecommunications functions and powers" if the ACCC considers that "it is appropriate and practicable" to do so;
s 498(1)(c), which obliges the ACCC to give notice, in whatever ways it thinks appropriate, of various matters, including the fact that it is holding the inquiry, the "nature of the matter to which the inquiry relates" and "the matters that the ACCC would like [public] submissions to deal with";
s 499, which empowers the ACCC to prepare and publish a discussion paper that identifies the issues that, in its opinion, are relevant to the matter which is the subject of the public inquiry and to set out such material and discussion concerning the issues relevant to the subject matter as the ACCC thinks appropriate;
s 500, which obliges the ACCC to provide the public with a reasonable opportunity to make a written submission "about the matter to which a public inquiry relates"; and
s 505, which obliges the ACCC to prepare a report which sets out its findings as a result of its public inquiry, which findings may include a decision not to make a declaration.
74 It may be accepted that if the ACCC ultimately determines to declare an eligible service the declaration must have sufficient specificity so that those who are affected by it, particularly access providers and access seekers, know precisely what are its terms and limits. The holding of a Pt 25 inquiry and the making of a declaration are different, albeit related, steps in the process contemplated by s 152AL(3). Merely because it is essential that a declaration have a high and precise degree of specificity does not mean that the same specificity is required throughout the entire course of a Pt 25 public inquiry. Indeed, such a construction sits uncomfortably with the dynamic and iterative qualities of such an inquiry. The legislative scheme contemplates, for example, that the ACCC may publish a discussion paper in relation to "a matter" relating to its telecommunications functions and powers. It may canvass a range of options that might be addressed in a declaration concerning an eligible service. In the case of a wholesale domestic mobile roaming service, such options could include the geographic scope of the declaration, as well as different options relating to the types of technology and particular services to be covered by the declaration. As the ACCC pointed out, where it proceeds to declare a specified eligible service by reference to one particular permutation or option, the inquiry could still properly be characterised as being one "about" a proposal to make that declaration even though it could equally be characterised as being an inquiry about possible declarations concerning other permutations. Similarly, if an inquiry commences without a precise description of a specified eligible service, but such a description emerges during the course of the conduct of the inquiry, possibly in response to submissions received by the ACCC, the inquiry can still properly be characterised as being an inquiry "about a proposal to make the declaration".
75 Thirdly, I accept the respondent's submissions that adoption of Vodafone's primary case could lead to irrational, impractical and unintended outcomes which suggest that its construction should not be accepted. It is well settled that where there is a choice between "two strongly competing interpretations… the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention" (see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297 at 321 per Mason and Wilson JJ and CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ). In particular:
(a) on Vodafone's construction, the ACCC is obliged to commit and confine itself from the outset of an inquiry to considering only one or more particular specified eligible services which are proposed for declaration. The ACCC would be powerless to change the proposed service description without commencing a new inquiry, notwithstanding that, for example, during the course of the inquiry, and possibly as a result of submissions it receives, the ACCC sees merit in changing the proposed service description;
(b) Vodafone's primary case would produce unwieldy and unlikely consequences. There is no legal obligation on the ACCC to provide any person with an opportunity to make submissions prior to the commencement of a Pt 25 inquiry. Accordingly, it is open to the ACCC to commence an inquiry without providing any potential access provider or access seeker with an opportunity to comment on a proposed service description before the inquiry commences. If it then emerges during the course of the inquiry, possibly as a result of submissions it receives, that the proposed specification is inappropriate, under Vodafone's case, the ACCC would have to start the process again. Section 505A may operate to alleviate some of the inconvenience but it is not a complete answer; and
(c) the ACCC's power under s 152AN to combine two or more public inquiries of a kind mentioned in s 152AL(3)(a) does not avoid the impracticalities created by acceptance of Vodafone's primary case. That is because, according to that case, the ACCC would need to "specify" the various eligible services at the outset of the combined public inquiries and in advance of the statutory public consultation process. The ACCC would have no legal capacity to "fine-tune" the description of the possible specifications during the course of the combined inquiries. That seems most improbable.
76 The need for considerable flexibility in this area is well reflected by the facts of this particular case. It is not suggested that the task of statutory construction is to be determined by reference to such facts. Rather, the facts support the ACCC's construction, having regard to matters of text, context and purpose.
77 The public inquiry commenced by the ACCC into the possible declaration of a wholesale domestic mobile roaming service was sufficiently broad to accommodate more than one form of declaration relating to such a service. Notably, one of the very matters upon which the public were invited to make submissions was the formulation of an appropriate declaration in respect of that subject matter (see [14] above). The discussion paper expressly stated that if the ACCC was ultimately to decide to make a declaration, it would be "necessary to consider a service description and the scope of that service description" and that key relevant issues would be the "geographic areas", "network technology" and "type of mobile services" to be covered by a declaration. Each of Vodafone, Telstra and Optus responded to that specific invitation and made submissions on what would be the appropriate service description, including by reference to geographic areas and whether the declaration should be confined to Telstra coverage areas or extend to areas covered by both Telstra and Optus.
78 Telecommunications services and products, including "eligible services" as statutorily defined, are notoriously complex, as is reflected on the face of cases such as Seven Cable, Telstra Corporation, Foxtel Management and the circumstances of this particular case. Although some eligible services can be expressed at a broad level of generality, such as "local loops" or "wholesale domestic mobile roaming service", there are numerous permutations and nuances below such general descriptions. To require the ACCC, at the outset of a public inquiry in relation to whether to declare an eligible service under s 152AL(3), to identify the precise description and terms of any such ultimate declaration and without any capacity to vary the description as a result of further reflection by the ACCC and informed by public submissions it receives would be to impose an inflexible and rigid process which is not supported by the two relevant statutory regimes.
79 I accept Telstra's submission that Vodafone has not offered a sufficient explanation as to why the Parliament would have conferred on the ACCC broad powers to conduct public inquiries and to make the completion of a public inquiry an essential prerequisite to the making of a declaration under s 152AL(3), yet deny the ACCC power to include as part of such a public inquiry the very issue of the precise form of declaration or service description in respect of the subject matter of the inquiry.
80 I do not accept Vodafone's submissions that such specificity at the outset of the public inquiry process is necessary to give effect to statutory provisions relating to public consultation and the ACCC's assessment of the various conditions set out in s 152AL(3). It is revealing that Vodafone availed itself of the opportunity to make submissions as invited by the ACCC in the discussion paper without any complaint that it was disabled from doing so because of the alleged absence of specificity in the concept of a wholesale domestic mobile roaming service. Nor did Vodafone complain, prior to the commencement of these proceedings, that the ACCC lacked power to conduct the public inquiry which occurred. This is not a case where the subject matter of the public inquiry was expressed at such a high and imprecise level of generality that the public consultation process was meaningless.
81 Nor do I accept Vodafone's related submission that, in view of s 152AL(3)(d) (which imposes a condition on the making of a declaration that the ACCC be satisfied that the declaration will promote the LTIE), a valid public inquiry must necessarily involve a consideration of that issue by the ACCC in the steps leading up to its decision whether or not to declare a service. In my view, this submission is flawed because it fails to recognise that, although the conduct of a public inquiry and the making of a declaration are related, they are also separate. It is important to recognise that a Pt 25 public inquiry need not result in a decision one way or the other in respect of a proposed declaration.
82 Naturally, of course, the need to be satisfied of the LTIE criteria as a condition to the making of a declaration must be appreciated by the ACCC. That is simply because one possible outcome which may result from the conduct of the inquiry is the making of a declaration. Necessarily, therefore, the ACCC will need to be satisfied of the LTIE criterion in s 152AL(3)(d) at a future point in time if that outcome crystallises. That is a different proposition, however, from saying that, from the outset of a public inquiry, the ACCC must apply the LTIE criterion against a particular form of proposed declaration.
83 It is desirable to deal specifically with four points raised by Vodafone in reply. First, Vodafone contended that any inflexibility or impracticability created by its preferred construction "is entirely appropriate and contemplated by the statutory scheme". It calls in aid of this contention the notion that, where a statute is capable of more than one construction, a construction which interferes least with private property rights should be preferred (citing, for example, Clissold v Perry [1904] HCA 12; 1 CLR 363 (Clissold) at 373 per Griffith CJ and at 378 per Barton and O'Connor JJ).
84 In my view, the practical consequences of Vodafone's construction cannot be discarded so easily. I reject the submission that "inflexibility and impracticability" are built into the statutory regime. On the contrary, as emphasised above, the statutory scheme is one which confers a range of broad discretionary powers on the ACCC, most of which are conditioned on the ACCC's judgment and evaluation of relevant matters.
85 As to Vodafone's reliance on cases such as Clissold, I consider that the relevant presumption carries little, if any, weight when it is raised in the context of statutory regime such as this one which seeks to balance a range of competing statutory rights and entitlements of service providers and access seekers (see generally Pearce and Geddes, Statutory Interpretation in Australia, 8th edition, 2014, at [5.23]). The significance of these considerations and the relevance of the extensive regulatory statutory regime which creates statutory rights of access to another telecommunications operator's network is reflected in Telstra Corporation Ltd v The Commonwealth of Australia [2008] HCA 7; 234 CLR 210, albeit in the context of a complaint that provisions in Pt XIC effected an acquisition of Telstra's property other than on just terms and contrary to s 51(xxxi) of the Constitution.
86 Secondly, I reject Vodafone's contention that the issue of statutory construction is not assisted by the proposition that a public inquiry and a declaration are distinct aspects of the procedure by which the ACCC may declare a specified eligible service. In particular, I reject Vodafone's submission that, under the ACCC's construction, the ACCC would have power to conduct a public inquiry without ever specifying the eligible service proposed to be declared, and then subsequently declare some hitherto unannounced specification of the eligible service. That submission glosses over the terms of the four pre-conditions to the declaration of a specified eligible service in s 152AL(3), most notably the condition in paragraph (a) thereof which requires the ACCC to have held a Pt 25 public inquiry "about a proposal to make the declaration". Necessarily, therefore, at the point in time when the ACCC determines to make a declaration it must determine whether it has held such an inquiry. This determination is properly characterised as a jurisdictional fact or condition precedent to the exercise of the ACCC's power to declare. Whether or not there has been a public inquiry under Pt 25 of the Telecommunications Act "about a proposal to make the declaration" is a matter of objective determination and is itself amenable to judicial review. It is notable that the condition in s 152AL(3)(a) is not expressed by reference to the ACCC's satisfaction or subjective state of mind, in contrast with the condition in s 152AL(3)(d).
87 Nor do I accept Vodafone's contention that the term "about" in context of the phrase which appears in s 152AL(3)(a) (i.e. "about a proposal to make the declaration") should be given a narrower construction, along the lines of requiring that there has been an inquiry "into" a proposal to make the declaration. The Macquarie Dictionary 5th edition, gives no less than 21 ordinary meanings of the term "about". When used as a preposition, eight ordinary meaning are given:
1. of; concerning; in regard to: to talk about secrets. 2. connected with: instructions about the work. 3. somewhere near or in: she is about the house. 4. near; close to: about my height. 5. on every side of; around; the railing about the tower. 6. on or near (one's person): they had lost all they had about them. 7. here and there in or on: wander about the place. 8. concerned; engaged in doing…
Having regard to considerations of both text and context, the term "about" should be given a broad construction which is reflected in synonyms such as "concerning" or "regarding" or "in regard to".
88 Thirdly, I do not consider that Vodafone's construction is assisted by the requirement in s 505(1) of the Telecommunications Act which obliges the ACCC to prepare a report setting out its findings if it holds a Pt 25 public inquiry. It may be accepted that the content of that obligation is informed by the character and purpose of the public inquiry, as Vodafone contended. That does not mean, however, that this obligation is only capable of performance if the findings have to relate to a particular or specified eligible service. I do not accept Vodafone's contention that, while not every inquiry may ultimately end in a decision by the ACCC to declare a specified eligible service, there is a requirement that, at some relevant point in the inquiry process, the inquiry must be constituted such as to permit that possibility. Contrary to Vodafone's submission, the statutory language does not direct that position.
89 In any event, even if Vodafone's contention was accepted, I consider that the ACCC's description of the subject matter of the inquiry being whether or not to declare a wholesale domestic mobile roaming service would constitute a sufficient description for the purposes of the conduct of the public inquiry, recognising that the description may be fine-tuned as a result of the public inquiry and the ACCC's consideration of the relevant statutory criteria which govern its decision whether or not to declare a specified eligible service. I accept Telstra's submission regarding the significance of the text and breadth of the Note to s 152AL(3).
90 Fourthly, Vodafone was critical of the submission advanced by both Telstra and Optus (not, however, the ACCC) that the reference in s 152AL(3B) to "eligible service" (i.e. without the adjective "specified") means that a proposal to make a declaration under s 152AL(3) need only be "in relation to an eligible service". In my view, the terms of s 152AL(3B) are of limited relevance to the task of statutory construction here. In particular, I do not consider that the absence of the term "specified" in the phrase "eligible service" assists. Both ss 152AL(3A) and (3B) are directed to the situation where an eligible service is supplied by an NBN corporation. The statutory regime contains discrete provisions relating to the declaration of, and access to, eligible services supplied by an NBN corporation (see, in particular, s 152AL(8A)). The effect of s 152AL(3A) is that a declaration made under s 152AL(3) does not apply to an eligible service to the extent to which the service is supplied, or is capable of being supplied, by an NBN corporation. It is necessarily implicit in this concept that the declaration relates to a specified eligible service, thus there was no need to use the phrase "specified eligible service" in s 152AL(3A). Sub-section 152AL(3B) is a related provision to s 152AL(3A). They were both introduced at the same time in 2011, together with other provisions relating to an NBN corporation, including s 152AL(3)(8A).
91 These provisions relating to an NBN corporation do not support Vodafone's preferred construction. The wording of s 152AL(3B) simply recognises that specificity is not, as a matter of fact, required to ascertain whether an eligible service is supplied, or is capable of being supplied, by an NBN corporation. In my respectful opinion, the various provisions in s 152AL which relate to eligible services supplied by an NBN corporation are neutral to the task of statutory construction.