Case: Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59
Outcome: applied
Telstra argued that par 10 fails to specify terms and conditions with reasonable precision or in such a way that both Telstra and the Court can determine whether a particular request by Optus must be dealt with in a certain, identified way: cf: Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal [1985] HCA 32 ; (1985) 156 CLR 1 at 4 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ. Telstra contended that par 10 was "... so vaguely expressed that either its meaning or its application is a matter of real uncertainty ..." and so was not "... reasonably certain", using the words of Kitto J in Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 70. Kitto J said there that the latter concept included both certainty of expression and certainty in operation. 167 I am of opinion that par 10 is uncertain for the reason given by Kitto J in Television Corporation 109 CLR at 71 when he said of conditions imposed in a licence by a Minister purportedly under a statutory power to do so: "After all, the power given to the Minister is to prescribe the conditions of his own authority to deprive a licensee of its licence. Is it really to be supposed that the Parliament intended that he might prescribe conditions in words of such dubious import that no one but himself would be sure how far he meant them to go? The Parliament did not give the Minister power to suspend or revoke licences at will. The course it took was to require him to describe in advance, by the formal method of imposing conditions upon a licence, what conduct of the licensee would expose the licence to suspension or revocation. I can see no justification for so loose an interpretation of the Act that a form of words which by reason of vagueness fails to perform that function may be held a condition within the intended scope of the authority." 168 The provisions of par 10 of the final determination must be read as a whole. This is because the whole of par 10 purports to specify what Telstra must do to order and provision so as to provide access. Thus, in pars 10(a) and (e), the Commission equated the presence of a soft dial tone as the signification that an ULLS exists that provides the connection over which the soft dial tone is transmitted. For the reasons that I have given, that is fallacious. And because it is fallacious, but fundamental to the requirement for Telstra under par 10(a) to treat the request as a valid ULLS transfer request, if Optus' construction is correct, I am of opinion that the final determination is uncertain and unworkable. 169 This view is reinforced by consideration of par 10(f) and (g). These deal with the situation where Optus has submitted an ULLS transfer request that meets the requirements in par 10(a). In the first case, Optus must accept any risk as to quality of connection "... on the existing copper path between the Telstra exchange and the end-user premises" (emphasis added). Again, this demonstrates the Commission presupposed that in every case the presence of a soft dial tone identified the existence of a copper path. What is Telstra to do if that assumption is, as it can be, incorrect? It cannot supply the service the subject of the request as an ULLS service because, even though the soft dial tone is transmitted by the path that exists, that path is not an ULLS path. And, if Optus and the Commission are correct, Telstra cannot reject the transfer request but must treat it as valid even though it does not relate to an ULLS. That is, the final determination commits Telstra to processing as an ULLS transfer request, a request based on no more than the existence of a soft dial tone and the provision of a telephone number to Optus' new subscriber's address.