mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 945
Outcome: cited
It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court. 85 The Commission submits that Telstra No 2 allows for the invalid parts of the Competition Notice to be distinctly identified so that they can be severed and that there is no indication of interdependence with other sections. Also, the Commission submits that severance would not give the Competition Notice a substantially different operation or effect ( Evans [2002] FCA 945 at [43] per Merkel J). The Commission seeks to sever paragraphs 5(g) and 12(a) referring to Lower Spend Customers and paragraph 12(e) referring to unbundled Fixed Voice Services, being the different kinds of anti-competitive conduct to those summarised in the Consultation Notice. 86 To the extent that the Commission seeks to sever the references to those parts of conduct that were not part of the conduct described in summary form in the Consultation Notice, severance is not possible. The Commission submits that the offending parts of the notice should be disregarded, as if they were not there. While it is possible to rule a line through the offending provisions, such a "blue pencil exercise" is not appropriate. To do so alters the nature of the conduct the subject of the notice ( Victoria at 502) and also alters the content and meaning of the notice. I am not satisfied that the clauses proposed to be severed are other than interrelated and interdependent within the remainder of the Competition Notice.
Case: Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306
Outcome: cited
If an Act, legislative instrument or an instrument issued by an authority acting within the power of a provision is construed as being in excess of authority, it is to be "read down" or severed to be valid to the extent that it is not within power. It is read down to bring it within power, providing that the instrument itself contains some test that would permit severance ( Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306 at [63] per Kenny J). However, as Kenny J pointed out at [65], it may not be possible if various aspects or requirements that are within and beyond power are interdependent. 51 The Commission's submissions are as follows: &#8226; Section 46(1)(c) of the Interpretation Act operates to ensure that the Competition Notice is read and construed subject to Pt XIB of the Act and so as not to exceed the power of the Commission to issue the notice. &#8226; When the Competition Notice is so construed, if it is found still to be in excess of the power of the Commission, then it is taken as a valid notice to the extent that it is not in excess of power by s 46(2). &#8226; If two constructions of the Competition Notice were open and only one was within power, s 46(1)(c) requires the Court to construe the notice so as to be within power. This may be achieved by severing the offending paragraphs, which are those that deal with the Lower Spend Customers and the bundling issues. The balance of the Competition Notice would therefore be valid. 52 Section 46(1)(a) of the Interpretation Act provides that each provision in the Competition Notice is to be construed as if it were a section of an Act. The Commission submits that s 46 can be satisfied by simply excising references to additional matter found to constitute a disconformity between the matter the subject of the Consultation Notice and the terms of the Competition Notice. The Commission recognises that this may not be appropriate if what seems to be a simple excision alters the sense of the Competition Notice or causes it to operate in an otherwise unintended or invalid manner.
Case: Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187
Outcome: cited
The validity of the Competition Notice and procedural fairness afforded before its issue are determined by the content and context of the provisions of Pt XIB of the Act. There is no evidence of the decision or decisions that were made. A decision or, indeed, a series of decisions concerning a Part A competition notice or its issue could be made and never implemented. The decision itself has no statutory consequences in the Act. It does not sufficiently relate to the validity of the Competition Notice. Counsel were unable to point to any comparable case, such as those arising under s 155 of the Act or ss 263 and 264 of the Income Tax Assessment Act 1936 (Cth) where not only the statutory notice but also the decision to issue the notice was quashed or declared invalid (cf Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 where the validity of four notices issued by the Deputy Commissioner of Taxation pursuant to s 264(1) of the Income Tax Assessment Act was considered but the decision to issue those notices was not, in effect, considered). 102 A declaration under s 163A(1)(aa) of the Act could extend to the validity of the Consultation Notice, the validity of the Competition Notice and the entitlement of the Commission to issue the Competition Notice. It does not extend to the decision to issue the Competition Notice. 103 However, Telstra also relies on the ADJR Act. The Commission did not and does not dispute that the decision to issue the Competition Notice is a decision to which s 5 of the ADJR Act applies. In the light of that concession, I gave no consideration in Telstra No 2 as to whether or not this was so.
Case: Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362
Outcome: cited
It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court. 83 There is a presumption in favour of the independence of various provisions in an enactment, to which effect should be given unless there is a positive indication of interdependence which is apparent from the text, context, content or subject matter of the provision ( Foxtel Management at [136], Fraser Henleins Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 127).
Case: Fraser Henleins Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100
Outcome: cited
There is a presumption in favour of the independence of various provisions in an enactment, to which effect should be given unless there is a positive indication of interdependence which is apparent from the text, context, content or subject matter of the provision ( Foxtel Management at [136], Fraser Henleins Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 127).
Case: Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311
Outcome: cited
Section 46 of the Interpretation Act , like s 15A, may apply where ' particular clauses, provisos and qualifications, separately expressed' are beyond power ( Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 327). It does not apply to validate a provision which extends beyond power unless the operation of the remaining parts of the instrument remain unchanged. It does not apply where the instrument was intended to operate fully and completely according to its terms or not at all ( Victoria v The Commonwealth [1995] HCA 45 ; (1995) 187 CLR 416 at 502). 87 Section 46 of the Interpretation Act , like s 15A ( Harrington at 327), cannot be applied to effect a partial validation if, as here, it is apparent that the statutory provision for consultation was intended to operate fully and completely according to its terms or not at all ( Victoria at 502). 88 This is not a case of a notice issued within power being, in its terms or content, in excess of power. Assuming, without deciding, that the proposed changes to the Competition Notice make it accord with the Consultation Notice, those changes do not alter the fact that Telstra was, at the time of the issue of the Competition Notice, denied the opportunities provided for in the Act as referred to in Telstra No 2 at [181] and [202]. The notice is invalid in its entirety.
Case: Hyster Australia Pty Ltd v Anti-dumping Authority (No 2) (1993) 41 FCR 259
Outcome: cited
Factors relevant to the exercise of discretion include the interests of the party seeking to have the matter argued, any prejudice to the respondent party, the policy inherent in s 22 of the Federal Court of Australia Act 1976 (Cth) and the public interest in the finality of justice ( Hyster Australia Pty Ltd v Anti-dumping Authority (No 2) (1993) 41 FCR 259 at 263). 17 One consideration is whether s 46 applies to "save" the Competition Notice. 18 The question of utility arises as the Competition Notice is no longer in force. The Competition Notice was revoked on 2 March 2007 with effect from 28 February 2007. Optus has consented to orders dismissing with costs the proceedings it commenced against Telstra in reliance on the Competition Notice.
Case: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: followed
There was therefore a failure on the part of the Commission to comply with the procedures required by law to be observed. The pre-condition for the issue of the Competition Notice was not met. A failure to comply with mandatory procedures constitutes jurisdictional error ( SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609 at [13]). If there was no authorised decision to issue a Part A competition notice, the Competition Notice did not accord with the [2002] HCA 11 ; Act ( Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [43] and [51] per Gaudron and Gummow JJ).
Case: Pacific National (ACT) Ltd v Queensland Rail (2005) 215 ALR 544
Outcome: cited
Further, the Commission submits that, as a government agency, the discretionary factors to be applied regarding its position may be approached differently to those of a commercial litigant. The Commission points to the decision of Jacobson J in Pacific National (ACT) Ltd v Queensland Rail (2005) 215 ALR 544 at 560 where his Honour cited P &amp; C Cantarella v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383 per Mahoney JA: The duty of the executive branch is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to a particular case, it is open to the executive to approach the court, or afford the citizen the opportunity for approaching the court, to clarify the matter. Where the matter is before the court, it is the duty of the executive to assist the court to arrive at the proper and just result.
Case: Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637
Outcome: cited
Telstra relies upon s 16(1)(c) of the ADJR Act to support its application for a declaration that the decision to issue the Competition Notice was invalid. That subsection may extend to any matter connected with an impugned decision that is appropriate to be dealt with by the grant of declaratory relief ( Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54 ; (1989) 167 CLR 637 at 644). However, s 16(1)(c) provides for a declaration in respect of a matter to which the decision relates, not the decision itself.
Case: Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110
Outcome: cited
Section 46 of the Interpretation Act is applied as a rule of construction to permit the reading down of instruments. It is not a rule of law ( Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at [16] per Black CJ referring to Pidoto v Victoria [1943] HCA 37 ; (1943) 68 CLR 87 at 110 per Latham CJ). The Commission has not referred to anything in the Act or in any extrinsic legislative materials to support the proposition that s 46 extends beyond such a limited application. Section 46 of the Interpretation Act concerns the construction of instruments. Both ss 46(1)(c) and 46 (2) provide for a construction to be applied. To read and construe an instrument by the application of s 46(1)(c) is not to rewrite it or to ignore its content. Section 46 has no application to a decision made under an Act. It has no application to a denial of procedural fairness. 84 Severance is more likely when separable words or expressions are used and the test for severance is qualitative rather than quantitative ( Pidoto at 110-111 per Latham CJ). There is no separate specification in s 46(2) of the Interpretation Act that it apply subject to a contrary intention. However, s 2 of the Interpretation Act still applies.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
As stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at [91] : An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. 71 The Act does provide for the possibility of variation of a Part A competition notice but specifies in s 151AOA that, while the notice is in force, variation can only be of a minor nature. The proposed variations cannot be said to fall into this category. 72 Part XIB does not envisage that a Part A competition notice may issue with retrospective effect. If an invalid Part A competition notice were subsequently validated by the application of s 46 of the Interpretation Act , the re-construed or amended notice would have retrospective effect for the period that the initial Part A competition notice would have been in force.
Case: P &amp; C Cantarella v Egg Marketing Board (NSW) [1973] 2 NSWLR 366
Outcome: cited
Further, the Commission submits that, as a government agency, the discretionary factors to be applied regarding its position may be approached differently to those of a commercial litigant. The Commission points to the decision of Jacobson J in Pacific National (ACT) Ltd v Queensland Rail (2005) 215 ALR 544 at 560 where his Honour cited P &amp; C Cantarella v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383 per Mahoney JA: The duty of the executive branch is to ascertain the law and obey it. If there is any difficulty in ascertaining what the law is, as applicable to a particular case, it is open to the executive to approach the court, or afford the citizen the opportunity for approaching the court, to clarify the matter. Where the matter is before the court, it is the duty of the executive to assist the court to arrive at the proper and just result.
Case: Sportodds Systems Pty Limited v New South Wales [2003] FCAFC 237 ; (2003) 133 FCR 63 
Outcome: cited
Severance does not answer the fact that the decision to issue the Competition Notice was not properly made. The condition precedent to its issue had not been complied with. The statutory scheme for consultation prior to the issue of a Part A competition notice is rendered redundant if, once it is found that the procedure was not followed, the Part A competition notice is retrospectively altered to equate "on its face" with the s 151AKA(10) notice. That makes a mockery of the intention of Pt XIB of the Act. Severance is not available in such circumstances ( Sportodds Systems Pty Limited v New South Wales [2003] FCAFC 237 ; (2003) 133 FCR 63 at [19] [24]). As the Full Court said in Sportodds at [18]-[19] in relation to s 15A of the Interpretation Act : Notwithstanding the broad terms in which these provisions are expressed, the statutory provisions are nevertheless limited...This limits the extent to which a court can redraft a statutory provision. ... But the essential issue remains is the court carrying out the permissible function of the interpretation of the statute (read in the context of the relevant Acts Interpretation Act provision), or is the court itself making legislation? 90 To overcome the denial of procedural fairness found in Telstra No 2 , the Commission says that, if the Competition Notice is construed by applying s 46 to read down the notice by adopting the alternative construction advanced by the Commission or read to disregard those parts that refer to Lower Spend Customers and bundling issues, there was no problem with procedural fairness as those parts of the Competition Notice were not operative. In the Commission's submission, the Competition Notice identified a number of independent kinds of anti-competitive conduct. It says that, on severance of the kinds of conduct not described in the Consultation Notice, Telstra was given the opportunity to consult on the kinds of conduct that remain. As a consequence, the Commission submits, there is no longer a procedural fairness issue to be considered. The denial of procedural fairness simply disappears. This submission has an air of unreality and demonstrates a reason why s 46 does not apply where there has been jurisdictional error. 91 I do not accept that the offending parts of the Competition Notice can be severed as proposed by the Commission.
Case: Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40 ; (1971) 124 CLR 468
Outcome: cited
Before embarking on the process of reading down, there must be some part of the impugned provision that is capable of being within power. While s 46(2) of the Interpretation Act may apply to cut down the scope of an overly wide provision, there is no occasion for reading down if the provision is wholly beyond power. As with s 15A, s 46 does not turn an Act or instrument which is invalid as being wholly outside legislative power into an Act which is, in part, within power ( Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40 ; (1971) 124 CLR 468 at 504 per Menzies J and cited by Black CJ in Vanstone at [17]).
Case: SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609
Outcome: cited
There was therefore a failure on the part of the Commission to comply with the procedures required by law to be observed. The pre-condition for the issue of the Competition Notice was not met. A failure to comply with mandatory procedures constitutes jurisdictional error ( SZBYR v Minister for Immigration &amp; Citizenship (2007) 235 ALR 609 at [13]). If there was no authorised decision to issue a Part A competition notice, the Competition Notice did not accord with the [2002] HCA 11 ; Act ( Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [43] and [51] per Gaudron and Gummow JJ).
Case: Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493
Outcome: considered
In Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) [2007] FCA 493 (' Telstra No 2' ), I considered a Part A competition notice ('the Competition Notice') issued by the Australian Competition and Consumer Commission ('the Commission') pursuant to s 151AKA(2) of the Trade Practices Act 1974 (Cth) ('the Act'). Telstra challenged the issue of the Competition Notice and the written notice given by the Commission pursuant to s 151AKA(10) of the Act prior to the issue of the Competition Notice ('the Consultation Notice'). 2 In Telstra No 2 I determined that the Consultation Notice and the Competition Notice differed in the kind of anti-competitive conduct described, with those differences being ones of substance (at [263]). Due to these differences, the Consultation Notice did not comply with s 151AKA(10) of the Act and the Commission was not entitled to issue the Competition Notice (at [266]). Telstra was not given the opportunity provided by the Act to respond to a s 151AKA(10) notice and to make submissions to the Commission on the conduct the subject of the Competition Notice prior to its issue. Telstra was, therefore, denied procedural fairness and natural justice under statute and at common law (at [267]). 3 The parties subsequently made submissions on the appropriate orders to give effect to the reasons. I then indicated to the parties that I wished to hear further from them concerning the application of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') in the context of the concession made by the Commission that the decision to issue a Part A competition notice was a reviewable decision under s 5.