State of Queensland v Telecommunications Industry Ombudsman

• Jurisdiction: Australia Federal only
• Judgment Date: 16 September 2022
• Neutral Citation: [2022] FCAFC 158
• Date: 16 September 2022
• Court: Full Federal Court (Australia)

Federal Court of Australia

State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158

Appeal from:	State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522
File number:	QUD 167 of 2021
Judgment of:	BESANKO, MIDDLETON AND RANGIAH JJ
Date of judgment:	16 September 2022
Catchwords:	COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) Sch 3 cl 7 – meaning of “maintenance” as part of power to “maintain a facility” – whether maintenance includes the installation of a new fibre optic cable in a conduit or duct owned by a third party with whom access agreement entered – where consent of landowner required absent authorisation to install or maintain facility under the Act – held: installation of proposed facility not within power to maintain – appeal allowed ; COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) Sch 3 cl 11 – Telecommunications Code of Practice 2018 (Cth) s 6.29(e) – whether failure to make reasonable efforts to enter into an agreement with the State could be a basis for objecting to the proposed activities ; COMMUNICATIONS LAW – Telecommunications Code of Practice 2018 (Cth) s 6.29(b) – whether onus is on an objector to show an alternative location for a proposed activity
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AA Competition and Consumer Act 2010 (Cth) Pt XIB and Pt XIC ss 152AB(2), 152AL, 152AR(3)(a) and 152AXB(2) Telecommunications Act 1997 (Cth) ss 7, 3(1), 3(2), 42(1), 56, 61 and 484; Schs 1 and 3; cll 2, 5, 6, 7(1), 7(3), 11, 17(1), 17(2), 17(3), 17(4), 17(5), 18, 18(1), 18(5), 19(1), 26(2), 33(1), 34, 35, 36, 37(1), 38 and 47; Divs 2, 3 and 4 Telecommunications Code of Practice 2018 (Cth) ss 6.22, 6.29, 6.35 and 6.36(1) Telecommunications (Low-impact Facilities) Determination 2018 (Cth)
Cases cited:	Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Bayside City Council v Telstra Corp Ltd (2004) 216 CLR 595 Coco v The Queen (1994) 179 CLR 427 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 Freedom Foods Pty Ltd v Blue Diamond Growers [2021] FCAFC 86; (2021) 286 FCR 437 Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179; 200 ALR 308 Lee v New South Wales Crime Commission (2013) 251 CLR 196 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 Momcilovic v The Queen (2011) 245 CLR 1 NBN Co Ltd v Pipe Networks Pty Ltd [2015] NSWSC 475; (2015) 295 FLR 256 R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459 State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198 Telstra Corporation Ltd v State of Queensland [2016] FCA 1213
Division:
Registry:
National Practice Area:
Number of paragraphs:	274
Date of hearing:	16 November 2021
Counsel for the Appellant:	Mr JM Horton KC with Dr G Sammon and Mr P Carasco
Solicitor for the Appellant:	Crown Solicitor
Counsel for the First Respondent:	Mr GA Phillips
Solicitor for the First Respondent:	Phillips Law & Advisory
Counsel for the Second Respondent:	Ms TL Wong SC with Mr A Scott
Solicitor for the Second Respondent:	Clayton Utz

ORDERS

		QUD 167 of 2021
BETWEEN:	STATE OF QUEENSLAND Appellant
AND:	TELECOMMUNICATIONS INDUSTRY OMBUDSMAN First Respondent ; OPTUS FIXED INFRASTRUCTURE PTY LIMITED ACN Second Respondent

order made by:	BESANKO, MIDDLETON AND RANGIAH JJ
DATE OF ORDER:	16 September 2022

THE COURT ORDERS THAT:

1. Within fourteen (14) days the parties file an agreed form of orders, or in default of agreement, any submissions as to the form of the appropriate orders reflecting the reasons of the Court.

2. Subject to any further directions, the final orders of the Court will be made on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO AND MIDDLETON JJ:

1. We have had the considerable advantage of reading the draft reasons of Rangiah J where his Honour sets out the relevant background to the appeal and the legislative context and scheme regulating the provision of the telecommunications services in Australia.

2. The principal issue and ground 1 in the appeal is one of statutory construction. Clause 7(1) of Sch 3 of the Telecommunications Act 1997 (Cth) (the Act) provides that a carrier “may, at any time, maintain a facility”. Clause 7(3)(e) provides that a reference to “maintenance” of a facility includes a reference to “the installation of an additional facility in the same location as the original facility”. The issue is whether cl 7 authorises a carrier (in this case, Optus Fixed Infrastructure Pty Ltd (Optus)) to install its own fibre optics cables in the conduits installed and owned by a different carrier (in this case, NBN Co Ltd (NBN Co)), having obtained NBN Co’s consent to do so. If it does, the consequence is that the consent of the owner of the property on which the facility is installed (in this case, the State of Queensland (the State)) is not required.

3. There are two other grounds of appeal. These other grounds of appeal assert that the Telecommunications Industry Ombudsman (the TIO) and the primary judge wrongly construed provisions of the Telecommunications Code of Practice 2018 (Cth) (the Code of Practice) concerning the State’s objections to activities proposed to be done by Optus. We agree with the reasons of Rangiah J in relation to these two grounds of appeal.

4. However, with respect, we do not agree with his Honour’s construction and views concerning the operation of cl 7 of Sch 3 of the Act as applicable to the facts of this case.

5. It is convenient to set out the structure and relevant clauses of Sch 3 although they are also to be found in the reasons of Rangiah J.

6. Schedule 3 is entitled “Carriers’ powers and immunities”. Schedule 3 provides three categories of powers and immunities which authorise carriers to engage in activities that would otherwise amount to trespass upon land.

7. The first category is under Div 2 of Sch 3, which consists only of cl 5. Clause 5 has the heading, “Inspection of Land”. The clause confers power upon a carrier to enter on and inspect land, and do anything on the land that is necessary or desirable for the purposes of determining whether the land is suitable for the carrier’s purposes, or surveying or obtaining information in relation to the...