Imagine, if you will, that you are in Court and are convicted of a criminal offence and sentenced to a term of imprisonment. Also imagine that the Judge has made clear and obvious mistakes, so that not only will you appeal but, chances are, your appeal will be successful.

The problem is that if the appeal takes six months to be heard and you were sentenced to six months’ imprisonment, winning will not help unless the Court orders a stay of the sentence.

Makes sense, doesn’t it?

Now imagine that a telecommunications carrier has been told by the Minister that its licence is being revoked. Imagine again that for whatever reason a mistake has been made so that a successful appeal is likely. The carrier appeals but, of course, without a stay of the Minister’s decision, a successful appeal will be useless.

Can a carrier now apply for a stay? The simple answer is no. Parliament has now removed from the Court the power to grant a stay, pending an appeal. The question must be asked why this was done, particularly when the Minister has retained the ability to grant stays on appeals to the Minister.

The implication appears to be that the Minister can be trusted with this power but the Supreme Court cannot!

Indeed, if the reporting was accurate, the Minister stated that “anarchy” would result if the Court kept this power. The clear flaw in that argument is to look at the last four years or so, when there have been appeals and when the Court could grant stays: “anarchy” did not exist then.

Another interesting point: Parliament has removed the ability of an appellant to apply to the Court for costs. A quick bit of background is in order. It is usual in Court cases for the successful litigant to be paid its legal costs by the unsuccessful litigant. This usually amounts to about 30 to 50 percent of the unsuccessful litigant’s actual legal bill. Up until this last amendment to the Act, the Minister, if he or she successfully defended an appeal, could apply for costs against the appellant and vice versa.

Now, if a bad decision is made, and appealed, and won, no costs can be sought. Once again the question must be asked: why? Other Ministers are liable for costs on appeals from their decisions.

In fact, the Minister has stated (again, if accurately reported) that out of all the appeals, not one was successful. If that is the case, then there is no reason to amend the Act to prohibit costs being applied for, is there?

There are other rather odd amendments, such as providing for the searching of a carrier’s premises for “books, papers”, where the Minister thinks it expedient. Note that there is no requirement for a search warrant issued by the Court, which was the way this was previously done (in fact this method was not removed so there are two ways). This is most likely unconstitutional. Perhaps time will tell.

There is a requirement now that carriers must do certain things within 30 days, such as connect with other carriers. As any lawyer who has been involved with such matters knows, these are often multi-million dollar contracts with many, many pages of documentation. There may be (and usually are) Planning permissions and regulatory approvals to be obtained. How can all this be accomplished within 30 days?

The reality is that it cannot. This is made all the worse by the inclusion of a provision that a carrier’s “inability” to comply is not an excuse, and failure to comply constitutes a criminal offence. So carriers, through no fault of their own, may well and in all likelihood will be committing a criminal offence when they cannot meet an unrealistic deadline.

All in all this appears to be an effort to plug various gaps (or eradicate entirely various problems) that the Government has encountered due to various issues arising through regulating the carriers.

Is the Telecommunications Act defective? Yes! Does it need amendment? No question! Is this the way to approach it? No.

Surely, discussions with the carriers and their lawyers as to problems with the Act and a wholesale reworking of the Act might be the answer.

Simply making it pointless and/or expensive to appeal a decision of the Minister or imposing unrealistic deadlines or providing for unconstitutional powers is not.

It should be pointed out that these are not by any means the only problems with the Act as it now stands. There are many others which were pointed out well in advance of the bill going to Parliament.