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Federal Court, Burchett J, August 24 1990
Casenote by Holly Raiche
These two cases arose out of the question of adequacy of telecommunications service provided by Telecom Australia, and its implementation of plans to upgrade that service. Both cases focused on what level of telecommunications service should be considered standard, and how the provision a such standard service can be enforced by those not provided with such service.
Many Aboriginal communities in more remote areas of Australia still rely on the use of high frequency radio links (provided either through Telecom or the Flying Doctor Service) for their telecommunications service. A service provided in this way can be difficult or inconvenient for the user: conversations can be overheard, the lack of duplex speech path allows only one of the parties to speak at any one time, and the service is subject to interruptions, particularly in the wet season. Under its Rural and Remote Areas Programme (RRAP), Telecom planned to complete linking such remote communities, using land based links through its Digital Radio Concentrator Service (DRCS), first by 1990 and, due to delays in the programme, then by the end of 1992. As an interim measure, Telecom can also provide an improved telephone Iterra service, using satellite links, but will do so only at commercial rates.
The first action (Daisy Yarmirr & Ors) was brought by the Northern Territory Government on behalf of thirteen Aboriginal communities, seeking to compel Telecom to provide those communities with the interim Iterra telephone service at equitable cost (argued to be the cost of the service provided under the RRAP program rather than the much higher commercial rates) until those communities could be linked using the DRCS. The second action was essentially to recover amounts paid to Telecom by the Yugul Mangi Community from 1988 until the provision of DRCS to that community in 1990, for Telecom's provision of a telephone service using the Iterra equipment. The two cases were, by consent, heard together.
Under section 27 of the Australian Telecommunications Act 1989 headed `Community Service Obligations', Telecom is required to provide a standard telephone service and ensure:
4(a) that, in view of the social importance of the standard telephone service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) that the performance standards for the telephone service reasonably meet the social industrial and commercial needs of the Australian community.
Policies and strategies to achieve Community Service Obligations (CSOs) are to be included in Telecom's Corporate Plan, which is subject to ministerial approval and which may be changed at ministerial direction.[1]
Under previous legislation Telecom had been under a similar, though less strongly worded, obligation to provide services 'throughout Australia for all people who reasonably require those services' (section 6(1), Telecommunications Act 1975). However, Section 6(3) of that Act said that nothing in Section 6 should be taken 'to impose on the Commission [Telecom] a duty that is enforceable by proceedings in a court'. Significantly, the 1989 Act does not contain a similar statutory bar on action seeking to enforce such statutory obligations, therefore allowing these cases to be brought before the Federal Court.
There were, two issues to be resolved by the first case: the meanings to be given to the terms 'standard telephone service' and 'reasonably accessible' to all persons in Australia on an 'equitable basis', and the extent to which the Court could enforce the provision of such a service.
Burchett J. agreed that the current service using high frequency radio links did suffer from disruptions and was subject, in certain circumstances to invasions of privacy.[2] However, he did not further define standard telephone service or the other terms in question.
Instead, he found the words of section 27 provided Telecom with an extremely broad discretion in how it meets those Community Service Obligations (CSOs). The goals articulated in that section called 'in each case, for an adjustment between ideal goals and what Telecom is able to do'. Burchett J. said that when:
"...competing considerations have to be carefully weighed and balanced in the public interest.., the very nature of the task, with its emphasis on the broader public interest, is one which militates strongly against the imposition of a duty of care being imposed upon such an agency in favour or any particular section of the public."[3]
Applying those words to the specific claim for the provision of an interim telephone service, Burchett J. said:
"If parliament thought that high frequency telephone services were inadequate - and there is nothing in the Act to suggest that this was the case - it could not have been supposed that Telecom could replace them all overnight ... If it intended, by section 27, to provide that Telecom 'shall ensure' that there is accessible to all people in Australia, a better service than that, it must have intended that Telecom do so in reasonable time , not all at once. And if a reasonable time was intended, the factors which make one time reasonable rather than another are so complex and so bound up with the needs to be served, the resources available, and the relative priorities of each, that the intrusion of other than the most limited private rights could only obstruct the goals of efficiency, economy and practicability which are expressly stated in the section."[4]
In other words, it would be up to Telecom, given its very broad discretion under the Act, to determine how best to reasonably meet its CSOs, responding to the needs of all Australians for telecommunications services on an equitable basis.
Quoting from an earlier judgment, Burchett J. indicated the only circumstance in which Court action might be used to enforce Telecom's community obligations:
"Only in the unlikely event of its making total default would any of the above mentioned authorities be at risk of legal compulsion in respect of its general duties."[5]
Failing Telecom's total default of its obligations - a default Burchett J. Did not find on the facts of either case - appropriate redress does not lie with the courts.
"Nothing put before me suggests that Telecom has gone outside the bounds of the very wide discretion conferred upon it. At least unless it does so, s.27 creates no such private right of action as the applicants seek to pursue."[6]
The Telecommunications Act 1989 established the regulatory authority, AUSTEL, to oversee the new telecommunications structure put in place by the 1989 legislation. AUSTEL's functions, under section 22, include monitoring and reporting to the Minister on:
"... (d) the appropriateness and adequacy of the strategies and policies that Telecom is following to carry out its community service obligations:..."
Under section 68 of that Act, AUSTEL may, `in connection with the performance of its functions under sections ... 22, give written directions to a carrier'. Specifically, under section 68(3), AUSTEL may give directions relating to the provision of a standard telephone service - Telecom's CSO:
(3) Without limiting subsection (1), where: (a) Telecom has refused or failed to supply a standard telephone service for a person or a public payphone for a particular place or area; and (b) AUSTEL is of the opinion that Telecom's refusal or failure is inconsistent with the strategies and policies that Telecom is, under its corporate plan, following to carry out its community service obligations:
AUSTEL may, under that subsection, direct Telecom in writing to supply the service or payphone within such period as is specified in the direction.
It was to AUSTEL, Burchett J. suggested, that those seeking to enforce Telecom's CSOs should look for redress. He held that the power conferred on AUSTEL by those sections of the Act:
"...suggests that the remedy devised by Parliament, for a case where Telecom's performance of its broad community service obligations is challenged, is the supervisory role committed to AUSTEL."[7]
Based on very similar reasoning, Burchett J. also denied relief for the Yugul Mangi Community Government Council.
Their claim was based on provisions of the Telecommunications Act 1975 which provided for the fixing and gazettal of rentals payable for standard telephone services provided.[8] That Act also provided for Telecom reaching agreement with another person for the `provision of a telecommunications service of a special kind or in special circumstances, or for the provision of a special facility'.[9]
He denied Telecom was, under the 1975 Act, under a duty to supply the particular Iterra service requested by the Community. A service by high frequency radio was available and about to be upgraded, he said.[10] He denied the contention of the Community that the Iterra service should be considered a standard telephone service for which standard, gazetted charges should apply.
"I do not think the provision of an interim service utilizing satellite technology, pending the projected installation of the DRCS service within one or two years, could be regarded as simply a standard telephone service"[11]
It was, he said, more akin to the special circumstances or special facility provided for under section 106 of the 1975 Act. Because of the wording of the relevant sections of the 1975 Act, it was argued that Telecom did not have the power to make the sort of charging arrangements entered into with the Community for the provision of the Iterra service. The Yugul Mangi, he said, had received the benefits for which they had paid and `there was no evidence that the payments ... were excessive'.[12]
Both claims were dismissed with the applicants ordered to pay the respondent's costs.
If the case was unsuccessful and costly for the communities affected, Burchett J's message was clear: Telecom's obligations to provide a standard telephone service for all Australians are to be interpreted and enforced by AUSTEL, and it is to AUSTEL, and the Minister, that the communities will have to turn. The issue now is whether AUSTEL's legislative powers and available resources are up to that task.
[1] Section 32 and 26, Australian Telecommunications Act 1989
[2] Daisy Yarmirr & Ors p.12
[3] Daisy Yarmirr & Ors, p.15, citing Lord Goff in Davis V Radcliffe [1990]1 WLR 821 at 827
[4] Daisy Yarmirr & Ors, p.16
[5] Daisy Yarmirr & Ors, p.19, quoting Wade on Administrative Law 6th Ed. (1988) at 615
[6] Daisy Yarmirr & Ors, p.20
[7] Ibid.
[8] Telecommunications Act 1975, section 1, 1(1), (2) and (6).
[9] Telecommunications Act 1975, s. 106(1)
[10] Daisy Yarmirr & Ors, p.30.
[11] Daisy Yarmirr & Ors p.26.
[12]Daisy Yarmirr & Ors, p. 31.
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