Does regulating telecommunications interconnection amount to compulsory acquisition of property?: The High Court's decision on the regulation of ULLS and LSS and its implications for structural separation

Abstract

This article is a critical analysis of the High Court's decision in Telstra Corporation Ltd v The Commonwealth, in which Telstra argued unsuccessfully that the application of the telecommunications access regime, established under Part XIC of the Trade Practices Act, to the ULLS and LSS, was an acquisition of property on unjust terms, contrary to s 51(xxxi) of the Constitution.Although the article does not disagree with the High Court's decision on the facts of this case, it contends that the narrow focus of the judgment, which is based mainly on the historically contingent circumstances that a telecommunications access regime was implemented prior to the privatisation of Telstra, provides little guidance about the extent to which future regulatory interventions may breach s 51(xxxi).The court's expansive understanding of what amounts to an 'acquisition of property' under s 51(xxxi), however, suggests that proposals for greater regulatory intervention, such as proposals for structural separation involving, for example, divestiture of the CAN, may well amount to a breach of s 51(xxxi), thereby requiring payment of compensation to Telstra. Copyright 2008 David Lindsay. No part of this article may be reproduced by any means without the written consent of the publisher.