Federal Court of Australia Confirms the Flexibility of ACCC Public Inquiries

In this judicial review proceeding, Justice Griffiths considered whether or not the Australian Competition and Consumer Commission's (ACCC) inquiry about the possible declaration of a domestic mobile roaming service was valid and lawful.

The ACCC's discussion paper described a domestic mobile roaming service as "allow[ing] mobile subscribers of one network to use their mobile phones for calls, texts messages and to access data services by means of another network in Australia when outside the coverage area of the network to which they subscribe", but did not settle on a more specific description of what the declared service would entail.

Key Legislation:

Telecommunications Act 1997 (Cth), Pt 25:

s497: When inquiry may be held

(1) This section applies if the ACCC considers that it is appropriate and practicable to hold a public inquiry under this Division about a matter relating to the ACCC's telecommunications functions and powers.

(2) The ACCC may hold such an inquiry about the matter.

Competition and Consumer Act 2010 (Cth), Pt XIC:

s152AL: Declaration made after public inquiry--services not supplied by an NBN corporation

(3) The Commission may, by written instrument, declare that a specified eligible service is a declared service if:

(a) the Commission has held a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to make the declaration; and

(b) the Commission has prepared a report about the inquiry under section 505 of the Telecommunications Act 1997 ; and

(c) the report was published during the 180-day period ending when the declaration was made; and

(d) the Commission is satisfied that the making of the declaration will promote the long-term interests of end-users of carriage services or of services provided by means of carriage services

The ACCC regarded their inquiry as a valid public inquiry within the meaning of Pt 25 of the Telecommunications Act 1997 (Cth). However, Vodafone contended that it was unlawful because the ACCC failed to direct its inquiry to a "specified eligible service" with a sufficient degree of specificity.

Specification of an eligible service is required by s152AL(3) of the Competition and Consumer Act 2010 (Cth) (CCA) prior to the ACCC declaring an eligible service to be a declared service. Such a declaration can only be made after a Pt 25 public inquiry. The precise nature of the relationship between the inquiry and the subsequent declaration was the central issue in this proceeding.

Following its inquiry, which commenced on 5 September 2016, the ACCC's draft decision was that it would not declare such a domestic mobile roaming service to be a "declared service".

Vodafone sought both common law relief and an order under s16(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) directing the ACCC to refrain from holding the purported public inquiry under Pt 25 of the Telecommunications Act. They also sought a declaration that the draft decision was affected by error of law because it did not 'specify' the eligible service which the ACCC was considering declaring a declared service.

In his judgment which was declared on 21 December 2017, Griffiths J rejected Vodafone's argument that an eligible service must be identified with a high degree of specificity at the outset of the inquiry, or at least by the stage where public submissions are invited under s500 of the Telecommunications Act.

Instead, he accepted the ACCC's submission that the correct approach to determining whether an inquiry is properly conducted is to ask whether, at the time when the ACCC is determining whether or not to make a declaration, the preceding public inquiry can properly be characterised as being "about a proposal to make a declaration". This reflects the language in s152AL(3)(a) of the CCA.

As Justice Griffiths emphasised, this is because, whilst there is a clear relationship between the conduct in a Pt 25 public inquiry and the making of a declaration under s152AL(3) of the CCA, they are distinct processes. Pt 25 has a broader application than merely the process leading up to the possible declaration of a specified eligible service.

Therefore, whilst an actual declaration by the ACCC must have a high and precise degree of specificity so that those affected by it know its terms and limits, this does not mean that the same specificity is required throughout the public inquiry. His Honour considered it telling that to require the same level of specificity throughout would render the ACCC powerless to change the proposed service description based on any s500 written submissions.

The key takeaway for access providers is that the ACCC does not have to precisely define the service which they are proposing to declare. The service need only be identified with a high degree of specificity when the declaration is made.