Telstra Fails In Its Constitutional Challenge To Compulsory Access Laws

Originally published 6th March, 2008

Overview

The High Court today handed down its much anticipated judgment on Telstra's constitutional challenge to parts of the telecommunication specific access regime in the Trade Practices Act 1974 (Act). Telstra's challenge has failed.

Telstra commenced its action in January last year challenging the provisions of the Act which allow the Australian Competition and Consumer Commission (ACCC) to set prices for compulsory third party access to its copper wire network at what Telstra has argued are 'below cost'.

The Act gives the ACCC a power to designate certain telecommunications services as 'declared services'. Once a service is declared, the owner of that service is obliged to supply that service to any person or entity which seeks access. Under Part XIC of the Act, the ACCC is responsible for arbitrating disputes about access to particular