https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2002/2002fca0385

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2002/2002fca0385

Section 611 of the Local Government Act 1993 (NSW) and Part 8 of the Local Government Act 1989 (Vic), insofar as they authorise councils to levy charges or rates on telecommunications cables while exempting comparable utilities, discriminate against carriers within the meaning of cl 44(1) of Sch 3 to the Telecommunications Act 1997 (Cth), and are to that extent inconsistent and invalid by operation of s 109 of the Constitution. Clause 44 is a valid law of the Commonwealth under s 51(v), operating directly on the rights and liabilities of carriers and State laws are displaced to the extent of inconsistency. Decisions of the councils were not invalidated by pursuit of environmental or...

Jurisdiction
Australia
Judgment Date
14 September 2023
Procedural Posture
Appeal / Full Court Judgment (federal Court of Australia)
Outcome
Appeal allowed
Legal Topics
['inconsistency of Laws (s 109 Constitution)' 'discrimination by State Law Against Telecommunications Carriers' 'interpretation of Local Government Rating Powers' 'administrative Purpose and Extraneous Purpose' 'implied Constitutional Limitations']
['constitutional Law' 'administrative Law' 'local Government Law'] ['inconsistency of Laws (s 109 Constitution)' 'discrimination by State Law Against Telecommunications Carriers' 'interpretation of Local Government Rating Powers' 'administrative Purpose and Extraneous Purpose' 'implied Constitutional Limitations']

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Procedural Posture

Appeal / Full Court Judgment (federal Court of Australia)

Legal Issues

  1. 1 ['Whether State laws authorising imposition of local government rates and charges on telecommunications cables discriminate against telecommunications carriers contrary to Commonwealth law (cl 44(1) Sch 3 Telecommunications Act 1997 (Cth))' 'Whether Commonwealth law is valid and effective to exclude State laws under s 109 of the Constitution' 'Whether State or council decisions were invalidated by purpose extraneous to enabling statute']

Ratio Decidendi

Section 611 of the Local Government Act 1993 (NSW) and Part 8 of the Local Government Act 1989 (Vic), insofar as they authorise councils to levy charges or rates on telecommunications cables while exempting comparable utilities, discriminate against carriers within the meaning of cl 44(1) of Sch 3 to the Telecommunications Act 1997 (Cth), and are to that extent inconsistent and invalid by operation of s 109 of the Constitution. Clause 44 is a valid law of the Commonwealth under s 51(v), operating directly on the rights and liabilities of carriers and State laws are displaced to the extent of inconsistency. Decisions of the councils were not invalidated by pursuit of environmental or...

Court Disposition

Appeal allowed

Orders

  • ['The appeal be allowed.' 'The orders of the primary judge be set aside.' 'Declarations made that s 611 of the Local Government Act 1993 (NSW) and Part 8 of the Local Government Act 1989 (Vic), to the extent they authorise charges/rates on telecommunications cables, are discriminatory and invalid to that extent.'...