mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: followed
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 381 [69] McHugh, Gummow, Kirby and Hayne JJ said that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. 123 I am of opinion that the requirement in s 152CR(1)(d) that the Commission take into account the direct costs of providing access to the declared service in making a final determination must be read consistently with its obligation to refrain from making such a determination if, in doing so, a party would be required to bear an unreasonable amount of the costs of extending or enhancing the capability of a facility. 124 The Commission did not set out any findings as to the direct costs of Telstra providing access to the ULLS either generally (see Reasons at [118]) or specifically those which would be incurred by Telstra in providing the service required in the final determination. The Act required the Commission to have regard to those costs by giving them proper, genuine and realistic consideration in arriving at its final determination. A mere recitation of submissions to it and then the expression of an unreasoned conclusion, could not suffice to comply with the Commission's obligation, within the meaning of s 152CR(1)(d), to have regard to Telstra's direct costs of providing access and its claim that they would be about $1.7 million. It did not have regard to Telstra's direct costs of providing the access it required under its final determination. 175 For these reasons, I am of opinion that the final determination was uncertain both in expression and in operation. It was therefore unlawfully made: Project Blue Sky Inc (1998) 194 CLR at 393 [99]-[101]. 176 Telstra also argued that the final determination was unreasonable in the sense provided in s 5(2)(g) of the ADJR Act , namely an exercise of power that was so unreasonable that no reasonable person could so exercise the power, and that therefore, there had been an improper exercise of power ( ADJR Act , s 5(1)(e)). Telstra argued that the final determination was illogical in the sense that it did not depend upon the Commission's evaluation of evidence or the drawing of factual inferences. It also contended that the final determination was illogical because it required the parties to the arbitration to comply with rules that were inconsistent internally with one another. This, in essence, was another way of arguing the same issues as have been discussed above. 177 Optus argued that Telstra understood the practical implications of the proposed determination communicated by the Commission during the arbitration as indicating that it was not illogical. It contended that the result of the final determination was a reasonable outcome in the circumstances.
Case: Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656
Outcome: cited
In Palme 216 CLR at 223-224 [39], Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664).
Case: Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 ; (1979) 142 CLR 460
Outcome: cited
Dixon J said that uncertainty as a test of validity arises from the nature of the power: King Gee 71 CLR at 195-196. He distinguished between ambiguities and uncertainties bound to arise from forms of expression and intricacies of subject matter on the one hand, which could be resolved by construing and interpreting the instrument (here final determination). Dixon J pointed out that, on the other hand, when what is described in the instrument, however clearly, involves a matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation or apportionment resulting in the attribution of an amount or figure as a matter of judgment, then no certain objective standard is prescribed and the power has not been exercised in accordance with the statute: King Gee 71 CLR at 197; see also Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 ; (1979) 142 CLR 460 at 480-481 per Gibbs J with whom Stephen, Mason and Wilson JJ agreed.
Case: Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514
Outcome: applied
Mason CJ, Wilson and Dawson JJ observed in Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 at 518 that the words of a Minister must not be substituted for the text of the law, particularly when the intention stated by the Minister was unexpressed in a law restrictive of the liberty of an individual. I am of opinion that this canon of construction also applies in circumstances where the text of the law imposes responsibilities and liabilities on persons, including corporations, who contravene it. Mason CJ, Wilson and Dawson JJ continued: "It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59
Outcome: cited
In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30]. 183 As McHugh and Gummow JJ identified in S20/2002 198 ALR at 76 [73] the principle in Melbourne Stevedoring 88 CLR at 120 does not depend upon unreasonableness but upon the absence of a factual basis in which the power could be exercised. For the reasons that I have given above, in reality, the Commission was not satisfied of the requisite matters upon which its power to make the final determination depended, namely, it acted on the misconception that the presence of a soft dial tone demonstrated the existence of an unconditioned communications wire or ULLS. This was because of its misunderstandings of the subject matter with which it purported to deal, that I have described. The Commission's determination was therefore unreasonable and an improper exercise of power.
Case: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724
Outcome: cited
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.
Case: Telstra Corporation Limited v Australian Competition and Consumer Commission [2008] FCA 1436
Outcome: referred to
Here, s 152CR(1) prescribes a number of matters for consideration. This is a sure legislative indication that these matters must be central matters for the Commission. But, because s 152CR(2) expressly widens the range of matters which the Commission may consider, it is authorised to arrive at a final determination, after due consideration, which accords more weight to some other factor or factors than those in s 152CR(1). Indeed, the factors in s 152CR(1) itself tend in different directions. The interests of a carrier (s 152CR(1)(b)) and those of all persons who have a right to use a declared service (s 152CR(1)(c)) more often than not will be opposed. If the Commission were to give fundamental weight to each in the sense which Telstra argued, how could it arrive at a decision favouring one at the expense of the other? cf Telstra Corporation Limited v Australian Competition and Consumer Commission [2008] FCA 1436 at [311] - [312] per Lindgren J. 111 In Telstra [2008] FCA 1436 at [122] Lindgren J held that s 152CR(1)(a) is the factor which should be given fundamental weight, namely, whether the determination will promote the long-term interests of end-users of services supplied by means of carriage services. This was because, he held, that factor reflected the sole object of Part XIC of the Act as expressed in s 152AB(1): see Telstra [2008] FCA 1436 at [17] . Of course, s 152AB(2)(e) supplements this concept by identifying an objective of encouraging the economically efficient use of, and economically efficient investment in, the infrastructure by which listed services are supplied. Often that objective may not be attained if an infrastructure investment is not economically feasible for the service provider to make or support. So, by dint of s 152AB(2)(e) the interests of end-users may well include that the service provider is not forced to act in a way which for it is economically unjustifiable. Possibly, a monopolist may be able to be forced to lower prices or make way for competition under s 152AB(2)(e), but not to run the business as a charitable exercise or at a loss. 112 Therefore, depending on the facts of a particular arbitration, one or more of the matters in s 152CR(1) may become of greater or lesser weight in the decision-making process. However, as a matter of law, none of the factors, including s 152CR(1)(d), is entitled to a fixed weighting in that process regardless of the subject matter of any arbitration and all other relevant factors: Peko-Wallsend 162 CLR at 41 per Mason J; Foster 200 CLR at 452 [22]-[24] per Gleeson CJ and McHugh J; cf: Telstra [2008] FCA 1436 at [118] per Lindgren J.
Case: Telstra Corporation Ltd v The Commonwealth (2008) 243 ALR 1 ; [2008] HCA 7
Outcome: cited
Many MDUs have a main distribution frame ("MDF"). The MDF is used to connect the telephony wires of dwellings within the MDU to appropriate wires that, in turn, connect to a telephone exchange. A form of connection is by use of a copper or aluminium wire, which, as explained below, is defined as a "communications wire". One, but by no means the exclusive, means of connection between the exchange side of the MDF and the exchange itself is through an unconditioned communications wire. This form of communication is called an unconditioned local loop service ("ULLS"). Telstra Corporation Limited owns and maintains those local loops. It also owns over 5,000 local exchanges as explained in Telstra Corporation Ltd v The Commonwealth [2008] HCA 7 ; (2008) 243 ALR 1 at 3-4 [1] - [8] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. 3 The essential and defining characteristics of the ULLS are that it consists of an unconditioned communications wire (usually a twisted pair of copper or aluminium wires) between, in substance, the exchange side of the MDF and the telephone exchange itself. However, there are other means of connecting between the exchange side of the MDF and the telephone exchange, including using fibre optic cable. Thus, the mere fact that there may be wires physically present at the exchange side of the MDU does not mean that the whole path to the exchange from that wire will always be physically along a copper or aluminium communications wire or wires. 4 Other telecommunications providers than Telstra are able to offer telephony services to, among others, residents of MDUs. In September 2006, Optus Networks Pty Limited was such a provider. At that time, Optus notified a dispute to the Australian Competition and Consumer Commission concerning access to the ULLS provided by Telstra in MDUs under s 152CM(1) of the Trade Practices Act 1974 (Cth). Part XIC of the Act regulates, among other things, access to parts of the PSTN, and requires the Commission to act as an arbitrator of disputes between participants in the telecommunications industry concerning access to services.
Case: The Commonwealth v New South Wales [1923] HCA 23 ; (1923) 32 CLR 200
Outcome: followed
This reflects a fundamental precept of constitutional law. When legislative power is used to create rights or impose liabilities and obligations, one consequence is that the freedom of those affected by the legislation is constrained or expanded by what the law provides. Where the law requires the executive branch of government, such as the Commission, to do something to give effect to the intention of the Parliament, the executive must obey the law, just like every other member of the community, be it a corporation or individual. This is because it is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions: The Commonwealth v New South Wales [1923] HCA 23 ; (1923) 32 CLR 200 at 214 per Isaacs, Rich and Starke JJ applying Eastern Trust Co v McKenzie, Mann &amp; Co [1915] AC 750 at 759; see also Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536 at 540 [9] per myself.
Case: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100
Outcome: referred to
Inadequacy of the material relied on by the administrative decision-maker, while not itself being a ground for prohibition is a circumstance which may support, in a case like the present, the inference that the Commission was applying the wrong test or was not in reality satisfied of the requisite matters: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120. There, Dixon CJ, Williams, Webb and Fullagar JJ referred to the important distinction between a mere insufficiency of evidence or other materials to support a conclusion of fact when the function of finding the fact has been committed to a person or body by the Parliament and, on the other hand, the absence of any foundation in fact for the fulfilment of the conditions upon which, in point of law, the existence of the power depends. They said that it was not enough if the repository of the power, properly interpreting the section of the Act under which it was conferred and applying the correct test: "... nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact." 183 As McHugh and Gummow JJ identified in S20/2002 198 ALR at 76 [73] the principle in Melbourne Stevedoring 88 CLR at 120 does not depend upon unreasonableness but upon the absence of a factual basis in which the power could be exercised. For the reasons that I have given above, in reality, the Commission was not satisfied of the requisite matters upon which its power to make the final determination depended, namely, it acted on the misconception that the presence of a soft dial tone demonstrated the existence of an unconditioned communications wire or ULLS. This was because of its misunderstandings of the subject matter with which it purported to deal, that I have described. The Commission's determination was therefore unreasonable and an improper exercise of power.
Case: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327
Outcome: followed
I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR. 110 I am of opinion that the sense in which the High Court used the expression "fundamental weight" in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process: Meneling Station 158 CLR at 338 per Mason J. In this way the decision-maker will give appropriate weight to those factors. The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed. Such consideration must be reflected in the Commission's reasons for its decision.
Case: Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265
Outcome: cited
A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health &amp; Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.
Case: Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536
Outcome: cited
This reflects a fundamental precept of constitutional law. When legislative power is used to create rights or impose liabilities and obligations, one consequence is that the freedom of those affected by the legislation is constrained or expanded by what the law provides. Where the law requires the executive branch of government, such as the Commission, to do something to give effect to the intention of the Parliament, the executive must obey the law, just like every other member of the community, be it a corporation or individual. This is because it is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions: The Commonwealth v New South Wales [1923] HCA 23 ; (1923) 32 CLR 200 at 214 per Isaacs, Rich and Starke JJ applying Eastern Trust Co v McKenzie, Mann &amp; Co [1915] AC 750 at 759; see also Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536 at 540 [9] per myself.
Case: Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429
Outcome: cited
Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437.