King & Wood Mallesons

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Queensland seeks remedy not known to law

Queensland recently sought an interlocutory declaration that Telstra be required to comply with state laws pending a final determination on whether those state laws were inconsistent with Commonwealth law and discriminatory against telecommunication carriers. The Federal Court held that an interlocutory declaration was a form of remedy not known to law. 

Telstra has a current application against Queensland in the Federal Court to have legislation prescribing rent for Crown leases declared invalid under the Telecommunications Act 1997 (Cth). Under the Telco Act, a carrier is permitted to not comply with any state law that discriminates against it and so Telstra commenced its claim against Queensland arguing that it should only pay as much rent for Crown leases as other commercial interests instead of the otherwise higher rents prescribed for telecommunications leases. The claim involves s109 of the Constitution, which provides that Commonwealth laws prevail over state laws to the extent of any inconsistency.

Recently, Queensland brought an interlocutory application seeking a declaration that its laws were valid until a court finally determined otherwise. Queensland appeared to be seeking to acquire the approximately AU$12.5m (£7m) in outstanding rent and penalty interest it alleged Telstra owed under the state legislation. Telstra had paid, and continues to pay, rent to Queensland but only at the rate as it existed prior to the introduction of the Land Regulation 2009 (Qld) which is the subject of Telstra’s discrimination claim…

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