Australian Competition and Consumer Commission v Telstra Limited (No 2)

This Federal Court decision deals with relief after Telstra had already been found liable in an earlier judgment for contraventions of the Australian Consumer Law. The ACCC and Telstra jointly proposed declarations, an $18 million penalty and agreed costs.

The Court approved the penalty and costs, but refused to make declarations. The refusal was not because declarations are never available in regulator cases. It was because, on the facts of this case, the judge was not persuaded they would do any practical work beyond what the liability reasons and a significant penalty already achieved.

The ACCC brought proceedings against Telstra alleging contraventions of the Australian Consumer Law. The matter was split into two stages. First, the Court determined whether Telstra had engaged in the alleged conduct and whether that conduct contravened the ACL. Secondly, after liability was decided, the Court considered what relief should be granted.

In the earlier liability judgment, the Court found, subject to a minor exception, that Telstra had engaged in conduct contravening two ACL provisions. This later judgment does not retell the full factual narrative. The judge expressly said that the contraventions were already described in the liability reasons and that there was little point repeating the evidence in the statement of agreed facts used at the relief stage. That is an important limit on how far this judgment alone can be used to reconstruct the full commercial story.

Even so, the reasons do reveal some key features. The conduct took different forms, affected Telstra customers over time, and included what the Court referred to as a speed-tier switch. The Court also noted that Telstra had provided the ACCC with a section 87B undertaking concerning efforts to rectify the impact of some conduct found to contravene sections 18 and 29(1)(g) of the ACL.

After the liability decision, the parties reached agreement on proposed relief. They jointly asked the Court to make declarations reflecting the liability findings, impose pecuniary penalties totalling $18 million, and order Telstra to pay the ACCC's costs in the agreed sum of $300,000. The Court then had to decide whether those proposed orders were appropriate.

Because liability had already been established, the central issue was relief. The Court separated its analysis into three categories: declaratory relief, pecuniary penalties and costs.

On declarations, the question was whether the Court should formally record the liability findings in binding declarations of right. Courts often do this in proceedings brought by regulators, especially where declarations can record the Court's disapproval, vindicate the regulator's case, assist the regulator in carrying out its functions, or deter others. But the Court still has a discretion, and the remedy must have practical utility in the particular case.

On penalties, the question was whether the jointly proposed total penalty of $18 million was within the range the Court itself would regard as appropriate. The Court did not simply accept the parties' agreement because they had reached it. It considered whether the amount was justified by the seriousness and circumstances of the contraventions and whether it served deterrence without becoming oppressive.

On costs, the issue was more straightforward. The parties had agreed on a figure of $300,000, and the Court had to decide whether that agreed amount should be ordered.

The Court refused to make the proposed declarations. Snaden J accepted that declarations can often be appropriate in regulator proceedings, but held that they were not warranted here. The judge rejected the parties' submissions that the declarations would record the Court's disapproval, vindicate consumer concerns, assist the ACCC, or deter others in any meaningful additional way.

The key point was practical utility. The judge said the proposed declarations would say nothing useful that would not be said more effectively by the significant pecuniary penalty. There was no evidence showing that declarations would vindicate customer concerns, assist the ACCC's work, or deter others beyond the effect of the penalty and the existing liability reasons. In that specific context, the Court considered declarations to be pointless and declined to make them.

On penalty, the Court took the opposite view. It had no hesitation in accepting that the jointly proposed total penalty of $18 million was within the range the Court would independently be minded to impose. The Court considered a broad list of factors, including the nature and extent of the conduct, the circumstances that led to it, the number of affected customers, the period over which the effects continued, deliberateness, motivations and benefits sought, the personnel involved, remedial steps already taken, future remedial commitments, current compliance measures, Telstra's size and means, compliance history, self-reporting, cooperation, contrition, maximum penalties and totality.

The Court also addressed the role of the theoretical maximum penalty. Because there were a large number of contraventions, the theoretical maximum would have been so great that it was not a useful numerical benchmark. The parties instead pointed to other numerical indicators, including that the proposed penalty represented about $2,000 for each affected customer in respect of whom Telstra anticipated savings of $7 per month from the speed-tier switch, and that total remediation paid or to be paid to customers exceeded $2.3 million in addition to the penalty. The Court accepted that high-level analysis as sufficient in the circumstances.

The Court then ordered Telstra to pay the $18 million penalty to the Commonwealth within 30 days and to pay the ACCC's agreed costs of $300,000.

This case is not just about a large telecommunications provider. The practical issues arise in many businesses. If you move customers between plans, alter service levels, change features, remove inclusions, or present a service change in a way that affects the customer's understanding of value, you are in territory where ACL risk can arise.

The Court's penalty analysis is especially useful because it shows what matters once contraventions are established. Scale matters. Duration matters. Deliberateness matters. Commercial motive matters. Internal involvement matters. So do post-incident steps such as remediation, self-reporting, cooperation and compliance improvements. Businesses sometimes assume that if they fix a problem later, the legal risk largely disappears. These reasons show that remediation is relevant, but it sits alongside the seriousness of the original conduct and the need for deterrence.

The decision also shows that courts assess agreed penalties pragmatically. They do not need to treat the theoretical maximum as the main benchmark in every case, especially where the number of contraventions makes that figure unrealistically large. Instead, the Court may ask whether the proposed amount is strong enough to deter, proportionate to the wrongdoing, and within the proper range.

For business owners and managers, the operational lesson is simple. Before implementing a mass customer change, test the customer-facing message against the actual customer outcome. Review notices, scripts, website copy, FAQs and support responses. Make sure the overall impression is accurate. If complaints start to suggest confusion, treat that as a legal and compliance signal, not just a customer service issue.

The reasons make clear that the Court relied on several sources in deciding relief. First, it relied on the earlier liability judgment, which set out the contravening conduct in detail. Secondly, it received a statement of agreed facts into evidence for the relief hearing. Thirdly, it considered the parties' joint outline of submissions on legal principle and penalty.

The judge deliberately kept the reasons short and did not repeat material already available elsewhere. That means this judgment is strongest as an explanation of relief principles and outcome, rather than as a full retelling of the underlying conduct. For readers trying to understand the complete factual narrative, the earlier liability judgment remains central.

The Court also noted Telstra's section 87B undertaking to the ACCC. That is significant because it shows the matter was not only about punishment. It also involved steps directed to rectifying the impact of some of the conduct. In practice, businesses facing regulator action often need to think about both dimensions at once: exposure to penalties and the need for remediation or future compliance commitments.

The judgment was delivered by Snaden J in the Federal Court of Australia on 3 October 2025. The hearing date and the publication date of the reasons were the same day. The case citation is Australian Competition and Consumer Commission v Telstra Limited (No 2) [2025] FCA 1220.

This page explains the relief judgment. The earlier liability judgment referred to in these reasons is Australian Competition and Consumer Commission v Telstra Limited [2025] FCA 93.

This page is based on the Federal Court's published reasons in Australian Competition and Consumer Commission v Telstra Limited (No 2) [2025] FCA 1220. Those reasons clearly support the relief outcome, the Court's refusal to make declarations, the penalty factors considered, the costs order, and the note about the section 87B undertaking.

The reasons also expressly state that they do not rehearse the full nature of the contraventions or summarise the statement of agreed facts in detail. Readers wanting the fuller factual background should read the earlier liability judgment cited in the reasons.