Optus Fixed Infrastructure Pty Limited v State of Queensland & Anor - [2023] HCATrans 86

[2023] HCATrans 086

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B51 of 2022

B e t w e e n -
OPTUS FIXED INFRASTRUCTURE PTY LIMITED ACN 092 450 783
Applicant
and
STATE OF QUEENSLAND
First Respondent
TELECOMMUNICATIONS INDUSTRY OMBUDSMAN
Second Respondent
Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 16 JUNE 2023, AT 9.29 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends MS T.L. WONG, SC and MR B.K. LIM for the applicant. (instructed by Clayton Utz)

MR J.M. HORTON, KC: May it please the Court, I appear with MR G.P. SAMMON for the first respondent. (instructed by Crown Solicitor for the State of Queensland)

KIEFEL CJ: There is a submitting appearance for the second respondent. Yes, Mr Walker.

MR WALKER: Your Honours, I regret that you have been bombarded with paper.

KIEFEL CJ: A large amount of paper actually, Mr Walker.

MR WALKER: A very large amount of paper in two separate respects.

KIEFEL CJ: But it comes down to this: you wish to tender the affidavits to show that there has been a practice over some time which will be affected by any decision of this Court.

MR WALKER: In fact, it comes to something neater than that; the parties agree that that is so and, in particular, that the matter will likely recur with some regularity.

KIEFEL CJ: So, we do not need to look at the evidence?

MR WALKER: That is right, your Honour.

KIEFEL CJ: That is even better.

MR WALKER: Yes. And I regret that ‑ ‑ ‑

KIEFEL CJ: Thank you.

MR WALKER: The second source of regret concerning bulk of paper is that in place of the very small amount of paper which would have put in the book the orders in the Full Court, instead you have a repetition of the reasons in the Full Court.

KIEFEL CJ: Yes, I saw that.

MR WALKER: I am sorry about that. Orders, if it be necessary, are now available in hard copy. But, of course, they were filed.

KIEFEL CJ: Yes.

MR WALKER: Your Honours, as I say, this case raises now a question only about, on the facts, the proposed installation by our client of its own fibre optic cable in a duct crossing the Kidd Bridge at Gympie, but for the reasons that we have already informed you, the parties agree that it has an exemplary quality to it in relation, obviously, to a very considerable part of the infrastructure of the nation, in particular, with respect to those aspects of that infrastructure and its continued development; namely, that there should be forms of efficiency – both technical and economic – concerning access to land in particular.

The provision which is at the heart of the argument is – provisions of subclause 7(3) and in particular paragraph (e) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Optus Fixed Infrastructure Pty Limited v State of Queensland & Anor [2023] HCATrans 86
Case: [2023] HCATrans 86
Decision Date

CaseChat Overview and Summary

Optus Fixed Infrastructure Pty Limited (Optus) sought judicial review of decisions made by the State of Queensland and the Chief Executive of the Department of Resources. The dispute concerned the validity of certain conditions imposed by the State on Optus's telecommunications infrastructure development under the *Acquisition of Land Act 1967* (Qld) and the *Land Title Act 1994* (Qld). Optus contended that these conditions were beyond the scope of the relevant legislative powers and unlawfully fettered its statutory rights. The matter was heard by the High Court of Australia.

The central legal issues before the High Court were whether the conditions imposed by the State were authorised by the relevant legislation, specifically concerning the acquisition of land for telecommunications infrastructure and the registration of interests in land. Optus argued that the conditions imposed were not for a purpose contemplated by the legislation and that the State had acted *ultra vires* in imposing them. The court was required to interpret the scope of the powers granted to the State under the *Acquisition of Land Act 1967* and the *Land Title Act 1994* in relation to the development and registration of telecommunications infrastructure.

The High Court found that the conditions imposed by the State were not authorised by the *Acquisition of Land Act 1967* or the *Land Title Act 1994*. Kiefel CJ and Steward J held that the statutory framework did not permit the State to impose conditions that effectively created a proprietary interest in favour of the State or third parties, or that imposed obligations on Optus beyond those necessary for the proper registration of its interest. The court applied principles of statutory interpretation, emphasising that powers conferred by statute must be exercised within the limits prescribed by the legislation and that conditions imposed must be for a purpose authorised by the statute. The court concluded that the conditions were *ultra vires* and therefore invalid.

Orders