ACCC did not deny Vodafone natural justice: Telstra

Vodafone Australia was not deprived of natural justice as shown through its 'comprehensive submissions' to the ACCC's wholesale domestic mobile roaming inquiry, Telstra has argued in court.
Written by Corinne Reichert, Contributor

Vodafone Hutchison Australia (VHA) addressed all matters of the wholesale domestic mobile roaming inquiry, contrary to its claims that the Australian Competition and Consumer Commission (ACCC) did not give it a chance to do so, Telstra has argued in court.

Speaking in the Federal Court of Australia in Sydney on Thursday morning, counsel for Telstra Alan Archibald QC refuted VHA's claim of being denied natural justice by not being able to make a submission on the ACCC's specification of an eligible service.

While VHA could not directly address the ACCC's specification, because it wasn't provided until the draft declaration was made, it did address its own preferred meaning of eligible service "at length", Archibald argued -- and it in fact made "comprehensive submissions" on all aspects of the inquiry.

"They did not suffer from lack of a target," Archibald argued.

"They without impairment provided their version of the appropriate declaration."

Despite this, VHA counsel Noel Hutley SC used his closing submissions to reiterate that since the subject matter of the ACCC's declaration was not announced until the draft declaration was made, VHA had not been able to make a submission on it.

The ACCC should be forced to identify an eligible service at the outset and undertake an inquiry into that, Hutley said, adding that the commission should not be able to switch the matter retrospectively.

Instead, he said the ACCC "might start a new matter", or at the very least write to all interested parties announcing that the nature of the inquiry has changed when there are "wholly different implications" resulting.

Justice Griffiths commented that the ACCC's backwards-looking functionality is "not inconsistent" with the law, however, while Archibald also continued his argument from Wednesday that the ACCC cannot specify an eligible service at the beginning of an inquiry; rather, it is knowledge formed through the inquiry process.

"It would be incapable at that point in formulating a specification for an eligible service," Archibald argued on Thursday.

"On VHA's case, the commission would be hamstrung in those circumstances."

Morgan, counsel for Optus -- which joined proceedings as an intervener in late June -- likewise pointed to precedents showing that the courts have previously been open to the ACCC considering multiple options for specifications during its inquiries.

Morgan added that it is common practice for the ACCC to revise descriptions during its inquiries as seen in its addition of SMS to regulated services, and in its super-fast broadband declaration.

Hutley called the ACCC's argument that specificity can be developed during the inquiry and announced thereafter "absurd", pointing out that the aim of the exercise is to allow all interested parties to address the matter fully.

"We're asking for interested parties to be given a chance to make submissions on that which is being declared," Hutley said. "You can't move that goalpost without in effect starting again.

"That's not the inquiry they started, and that's not something they can invent in front of your honour ... the ACCC cannot turn around now and say that the inquiry is of a different character than that which it thought it was."

As it stands now, whether an organisation gets an opportunity to comment or make submissions about a proposed declared service "will be a mere matter of chance, good luck", Hutley claimed. If the ACCC identifies the proposed declared service before the declaration, then an organisation will get the opportunity to comment upon it; "if they don't, bad luck".

Optus' Morgan argued in response that if the ACCC had been forced to include in its original specifications all geographic and technical boundaries requested by VHA -- such as whether it concerned 3G, 4G, data, or voice only -- it would have required discussion papers, submissions, and reports on every aspect.

"Each specified service would have to be separately addressed," she said. "From a mathematics point of view, the permutations are significant."

VHA responded by saying the ACCC would not have to conduct inquiries on every aspect of the specifications.

"The floodgates argument simply goes nowhere," Hutley said.

During the first day of the hearing on Wednesday, Hutley had argued that the ACCC "failed to conduct the inquiry lawfully", and that by publishing its draft decision not to declare wholesale mobile domestic roaming and threatening to publish its final decision, it is continuing to fail to act in accordance with the law.

VHA is seeking the ACCC's draft decision to be either quashed by writ or treated as non-existent by court order, although the court could also find that the regulator is not conducting a declaration inquiry, meaning the ACCC would have to start the process again.

Despite these potential outcomes, the ACCC on Wednesday revealed that it still intends to publish its final decision between mid and late October.

Griffiths J has reserved his judgment on the matter, and invited submissions on costs in writing.

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