Case: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: referred to
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 ( Peko-Wallsend ), Mason J emphasised (at 41) that it is generally a matter for the decision-maker and not for a court to determine the appropriate weight to be given to the respective matters that are required to be taken into account in the exercise of a statutory power. His Honour noted that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance, but that in such a case the relevant ground of review is not the failure to take into account a relevant consideration or the taking into account of an irrelevant one, but that the decision is "manifestly unreasonable". Telstra does not rely upon a ground of manifest unreasonableness. 122 Section 152CR(1) provides that in making a final determination ACCC must take into account the seven matters listed in paras (a)-(g) of that subsection and s 152CR(2) provides that ACCC may take into account any other matters that it thinks are relevant. Also, s 152AQA(6) provides that ACCC must have regard to the LSS Pricing Principles if it is required to arbitrate an access dispute. The factor that should be given "fundamental weight" as against the others is the LTIE mentioned in para (a) of s 152CR(1) because s 152AB(1) provides that the object of Part XIC is "to promote the [LTIE]...". 123 "Telstra's cost model" to which Grounds 1, 2(a) and 3 refer, is described in an affidavit of Iain Robert Little, Group Manager Economic Analysis for Telstra, as comprising two Microsoft Excel Spreadsheets on a CD which estimate Telstra's top-down LSS-specific costs and calculate a per-unit cost for the LSS. Telstra provided the CD to ACCC. The words and figures on each of the two Spreadsheets constituted only a short vertical column or table. In the hard copy version in evidence, each occupied about half a page. 157 Request points out that Telstra can succeed on the "relevant consideration" ground only if ACCC was bound to take Telstra's cost model into account and that doing so "could" or "might" have had a material impact on the outcome: see Peko-Wallsend at 30-31 (Gibbs CJ); 39-40 (Mason J). 158 Section 152CR(2) allowed ACCC to take into account any matters it thought relevant. In Peko-Wallsend at 39-40, Mason J stated that where factors to be considered enumerated in a statute are not exhaustive, the Court should turn to the subject matter, scope and purpose of the statute in determining what matters a decision-maker is bound to take into account. Telstra submits that in the present case this approach leads to a conclusion that ACCC was bound to take into account Telstra's cost model because it was central to the issues that ACCC was required to determine and to matters that it was expressly obliged to take into account, for example Telstra's "direct cost" of providing access to the LSS (see s 152CR(1)(d)). 159 In its submissions, Telstra did not draw a clear distinction between the course of reasoning by which it contends that s 152CR(2) coupled with general law principles produced the result that ACCC was bound to take into account Telstra's cost model, and the course of reasoning by which it contends that s 152CR(1)(d) produced that result. 160 I turn now to the duty imposed by s 152DB(1)(b). Telstra submits that s 152DB(1)(b) (set out at [42] above) supports its case while Request submits that, if anything, it assists the respondents. Provisions such as s 152DB(1)(b) are troublesome. It is questionable whether ultimately they have any effect at all in shaping the duty incumbent on a decision-maker. The starting point in s 152DB(1)(b) is a legislative demand for speed, but apparently someone appreciated that speed can come at too great a cost, and so the demand for speed is reduced to a demand that ACCC "must act [only] as speedily as a proper consideration of the dispute allows". In order to make it plain that excessive speed is to be shunned, it is acknowledged that ACCC must inquire into and investigate the dispute "carefully". Apparently it is then thought that too much care may detract from the desideratum of speed, so the words "and quickly" are added after "carefully". Adding to the confusion is the legislature's comprehensive demand that ACCC "inquire into and investigate the dispute and all matters affecting the merits, and fair settlement, of the dispute" (my emphasis). The demand is that ACCC inquire into and investigate all matters affecting the merits of the dispute and all matters affecting the fair settlement of the dispute. 192 The relevant test was described by Mason J in Peko-Wallsend at 40: Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. More recently, a Full Court of this Court in Martincevic v Commonwealth (2007) 164 FCR 45 observed (at [68]) that: It is not for the court to guess what view [the decision-maker] would have taken of the report and its significance. It is enough that it cannot be said that the failure to have regard to the report was so insignificant that it could not have materially affected the decision. 561 Second, in exercising the discretion under s 152DNA(7)(b), ACCC must take into account relevant considerations that ACCC is required to take into account in the light of the subject matter, scope and purpose of the Act (citing Peko-Wallsend at 39-40 in support of this proposition). True backdating under s 152DNA(1) is merely adjectival to the making of a final determination under s 152CP and ACCC is required to take into account the matters specified in s 152CR(1) both when making the final determination and when exercising its discretion in respect of backdating that determination. According to Telstra, if this were not so, backdating could undermine ACCC's findings and its balancing of the matters identified in s 152CR(1). Resolution 562 In my opinion, cl 5A(i) was not merely an exercise of the backdating power to which s 152DNA(7) applied, and s 152CR(1) and s 152AQA(6) did not apply. 563 There is a distinction between the backdating power contained in s 152DNA(1) and the power to decide upon the substantive provisions of a final determination that is recognised in s 152CR(1) and (2) on the one hand, and s 152DNA(7) on the other. The latter is addressed to substantive provisions which it assumes have been decided upon following the application of the s 152CR(1) and (2) criteria.