Expert: No recourse for Telstra in the High Court

 

Where to next for Telstra?

With Senator Conroy providing Telstra few options to escape the prospect of separation in one form or another, Telstra's legal department would no doubt be spending the coming days assessing whether the carrier has a case to take to the High Court.

On few occasions in Australian history has a Government made such sweeping changes to the regulatory environment with a single company - let alone a privatised former Government asset - in mind. Telstra shareholders are rightly furious.

Telstra's legal team will be stewing over whether the Government's proposed legislation, which provides the incumbent carrier a choice between a rock and a hard place, constitutional.

Conroy told journalists yesterday that the proposed legislation is watertight from a legal perspective.

"We don't believe, on our legal advice, that there [are] any legal issues around compensation," he said. "We are offering a choice whether [Telstra] want to be in this market or on this market. We are not requiring them to do anything. We are saying if you want to move into another market [the market for 4G mobile services], there are some conditions before you can move into that market."

Legal commentator Peter Moon agrees with the Minister.

Moon said Telstra "shot itself in the foot" last year when it argued in the High Court that it should not be forced to share its copper network because such sharing amounted to "appropriating Telstra assets without appropriate compensation."

"The high court said no, no, no, no, no. Ever since the moment you were created, Telstra, you took those assets subject to obligations to share them," Moon told iTnews.  "So when you're called upon to answer those obligations, you're not giving anything up, you're just doing what you've always had to do."

Moon said the industry should not underestimate the gravity of this precedent.

"If structural separation had been forced on Telstra in the absence of that decision, [Telstra] would have an argument that the Government had to pay them massive compensation with regards to any devaluation of any of the copper network," he said.

"But instead, that High Court decision goes a long way towards eliminating any argument that forced structural separation would require [the taxpayer] to pay Telstra [for those assets]."

Moon said Telstra can thank Sol Trujillo for allowing the Federal Government to "dot that little i".

It will be at the negotiating table, rather than before the courts, that Telstra's fate is decided, Moon predicts.

The Government will achieve this by threatening to deny Telstra access to 4G spectrum, he said.

"This is the kind of thing that Conroy would also have a plan B in mind for," he said. "Plan B could be to use administrative powers that he's got that don't require parliamentary approval. Mind you the opposition is not very well placed to fight him on this."

Moon said this 'Plan B' could well come into play should Telstra "slow Conroy down or muck him around."


 

Ovum analyst David Kennedy feels that Telstra should take the easier option of vending its assets into NBN Co.

"This package of reforms is an opportunity to ... vend Telstra's copper access network into the NBN Co., providing an immediate wholesale revenue stream for the NBN Co," he said.

"This would also reconfigure the NBN Co's task: rather than building a FTTH network from scratch in competition with Telstra, its task would be to upgrade copper to FTTH. This would allow Australia to avoid a lose/lose competitive battle between the NBN Co and Telstra's copper network."


Expert: No recourse for Telstra in the High Court
"What do you not understand about a High Court decision that reportedly said No; No; No; No and No to the Telstra application? Sounds like perhaps somebody might be talking their legal book here?"
By anonymous
 
 
 
Comments: 3
mikkkl
Sep 16, 2009 9:38 AM
Thank the Lord that we finally have a Government who stands up for ordinary Australians and not just for vested interests.
adavion
Sep 16, 2009 6:28 PM
Senator Conroy likes reminding us that Telstra lost at the high court.




According to RBS ABN AMRO (www.abnamroresearch.com), Conroy is not telling the full truth. In a piece titled "What the High Court really said" RBS Analyst Ian Martin writes:

"In fact, the High Court made a very particular finding that the access regime was implemented in
1991 prior to the ownership of the PSTN being vested in AOTC, Telstra’s predecessor, in 1992.

David Lindsay, a senior Lecturer in Communications Law at Monash University, has suggested that, because of this contingent circumstance, the High Court missed an opportunity to clarify whether or when access regulation is a compulsory acquisition of property in breach of s51(xxxi) of the Constitution. (See his article, Does regulating telecommunications interconnection amount
to compulsory acquisition of property? Telecommunications Journal of Australia, Vol 58, No 1,
2008.)

The High Court’s understanding of what amounts to an ‘acquisition of property’ under s51 (xxxi)
suggests that proposals such as structural separation “may well amount to a breach of s51 (xxxi),
thereby requiring payment of compensation to Telstra”. In Lindsay’s view the case “provides
limited assistance in determining whether or not proposals for full structural separation… may
amount to an acquisition on unjust terms contrary to s51(xxxi)”.

Structural separation, in our view, goes well beyond the intention and objectives of Part XIC of the
Trade Practices Act (TPA) as it changes the nature, conduct and performance of the company,
requiring it to operate in a certain way. It moves significantly beyond access to ownership.
Similarly, sub-loop unbundling goes well beyond simple access to a transfer of infrastructure
ownership as it allows the access seeker (ie, the NBN operator) to change the asset and reduces
Telstra’s control of its own service, for instance potentially forcing their customer migration.
We consider either or both separation and sub-loop unbundling, to the extent required to support
the NBN, require significant changes to legislation. These changes may reduce the effectiveness
of the access regime (if their objectives are altered to make NBN legislation objectives a priority),
will test Parliament in considering the relative importance of NBN objectives against those of part
XIC, and will, if passed by Parliament, be tested in the High Court."

In a nutshell you can't trust Conroy's legal advice and Peter Moon [is that the former 2DayFM comedian?] is likely wrong based on the RBS analysis. The bit nobody seems to admit is that the High Court did not deliver a unified decision against Telstra. Instead it delivered 7 different and distinct opinions- making it almost impossible to turn into precendent. The scope Conroy's laws may well amount to an appropriation of property.
anonymous
Sep 16, 2009 6:50 PM
What do you not understand about a High Court decision that reportedly said No; No; No; No and No to the Telstra application?

Sounds like perhaps somebody might be talking their legal book here?
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