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

Copyright in the High Court of Australia

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 clause 7 of Schedule 3 of the Telecommunications Act.  That mouthful does not exhaust what is necessary to give it its statutory setting, but we have set that all out and it is uncontentious in our submissions.  At page 245 of the book, you will see that text.  Your Honours will see, in particular, that there is a special definition of the term “maintenance” for the purpose of that clause 7.  In subclause (1) comes the substantive provision that:

A carrier may, at any time, maintain a facility.

In subclause (2) come the very important provisions, which we understand those which, according to the majority reasoning below against us, somehow justified reference to these principles of legality.  In subsection (3), which is, validly, an extending definition, can I draw to attention, in order, the provisions that you will have seen us write about, upon which we say it is clear there has been a misunderstanding by the majority of the proper technique and, second, there has been, in any event, a misreading of the provisions.  Subsection (3) stipulates that:

A reference in this clause –

so, for example, subclause (1), subclause (2):

to the maintenance of a facility (the original facility) includes a reference to –

Then I am selectively quoting.  In paragraph (a):

the alteration, removal –

emphasis on “removal”:

of the original facility –

In paragraph (d):

the replacement of the whole . . . of the original facility in its original location –

Interestingly, where the conditions specified in subclause (5) are satisfied – and, turning over the page – and in summary, those are conditions that may be regarded as stipulating that, in the case of the replacement of the whole, that which replaces is not to be, as it were, more burdensome than that which precede it.  In paragraph (e) – the one in question – thus, we come to:

the installation of an additional facility –

That can only be additional to the original, so:

the installation of an additional facility in the same location as the original facility –

In this case, that means the Optus fibre optic cable next to the NBN fibre optic cable in the duct or conduit which is on the bridge.

STEWARD J:   Mr Walker, what is your best answer to the argument that your approach drives a truck through Division 3 and Division 6?

MR WALKER:   I am so sorry, your Honour ‑ ‑ ‑

STEWARD J:   It drives a truck through the whole point of Division 3 and Division 6 of Schedule – sorry.

MR WALKER:   It drives no such truck for the following reasons.  The scheme to which your Honour’s question refers is a scheme that contemplates both stages temporarily and administratively, and also grading in terms of the seriousness of impact of facilities and their approvals.  It is plain ‑ ‑ ‑

STEWARD J:   It does seem odd, though, that you would have a power to insert wholly new infrastructure, unrelated to the pre‑existing infrastructure, under a heading “Division 4 – Maintenance of facilities”.

MR WALKER:   If all you had was “maintenance”, then it would not only be odd, it would be impossible, for example, to have “removal” or even “replacement of the whole”.

STEWARD J:   It may be.

MR WALKER:   So, it is an extended definition, and your Honour, with respect, is correct that the word “maintenance” is in the nature of a placeholder because of the extended definition.  There is no driving a truck through the scheme because the scheme contemplates – including by the idea of low‑impact facilities in another and related context – that where what is newly proposed will not much add to burden or affectation of land or facilities, then the same public consultation and laborious process need not be repeated.

STEWARD J:   So, you would have us read Division 3 as really dealing with wholly new infrastructure as distinct from something that piggybacks pre‑existing infrastructure?

MR WALKER:   To use, I hope, an acceptable colloquialism, greenfield.

STEWARD J:   Yes.

MR WALKER:  And it makes sense from the point of view of economy and an avoidance of unnecessary complication.  But once that has been achieved – that is, the first greenfield proposal – when there are, under the access regime, as you know, in order to prevent dog in the manger first mover advantage, when there is an application or an intention such as ours under clause 7, it makes sense entirely that we would not need to, as it were, jump through hoops as if this were greenfield.  It is not greenfield at all.

STEWARD J:   All of that is in your interests – your client’s interest – economy and so on, but it may not be in the interests of the person who owns the relevant land in question ‑ ‑ ‑

MR WALKER:   Unquestionably ‑ ‑ ‑

STEWARD J:   ‑ ‑ ‑ who cannot, for example, attend a public inquiry.

MR WALKER:   All of that is correct, and that is what Parliament has decided by the considerable powers bestowed by the combination of  subclauses (1) and (2).   Yes, indeed, it is against the interest, which is no doubt why there are 51(xxxi)‑derived provisions in the whole scheme.  Unquestionably.

That, by the way, is also why the principle of legality has no room to play.  True, the majority said it was not essential to their reasoning but somehow said it supported the outcome.  It does not.  The principal legality should not be regarded as at play when, quite plainly, the provisions in question have has their avowed, explicit aim entrenching upon what are otherwise the interests of owners.  It does not matter whether those owners are private or public for present purposes.

The notion of not being forced back to that which is appropriate for greenfield – new development – is emphasised by the qualifications which govern and limit recourse to either paragraph (d) or (e) – ours is (e) – for the installation of our fibre optic cable alongside our rival’s fibre optic cable, which itself, of course, is a physical manifestation of the intended competitive regime, including access – and, in particular, access to land – which this statute has an explicit object.

Those qualifications – subclause (5) and subclause (6) – are, as we can see from subclause (6), designed to ensure that what occurs under the rubric here of so‑called “maintenance” will not represent a great burden of a kind that originally for a greenfield application would have been one of the factors considered during the public consultation and the like.  You see that in subclause (6) on page 247 by references to the noise limit in paragraph (a) and the combination of the elements of paragraph (b) being able to be summarised as no greater footprint – no greater physical extent.

Of course, laying one cable alongside another in an unchanged duct or conduit – which is what this case is about and which would be a paradigm, we submit, in the future – is precisely of that kind:  no further harm done.  Parliament, having made it clear that private ownership is not to be seen as part of the scheme for access by rivals in a competitive market to produce national infrastructure whereby there can be, as it were, ransom levied for access land – Parliament has already dealt with that by granting the rights under subclause (2) for the purpose of commercial development under subclause (1).

May I then take your Honours to the way in which the majority reasoned to their conclusion.  As you know from our written application, we embrace the reasoning of Justices Collier at first instance and Rangiah in dissent in the Full Court.  The difference appears to stem, in particular, from an approach to the definition of “maintenance”.  I do not know whether your Honours want to use the first appearance or the second appearance of the reasons, but it is pages 77 or 143, depending upon ‑ ‑ ‑

KIEFEL CJ:   First appearance, I think, might be better.

MR WALKER:   It is paragraph – starting in paragraph 33 or 34.  The routine commencement with citation from the dictionary, of course, starts, rather than completes the exercise.  In paragraph 36, there is misascribed to Justice Gageler, who agreed, rather than wrote those words from WZAPN 254 CLR 610, at its paragraph 48 – you see, in particular, the statement by plurality in that case that in a case where the definition provision did not define “serious harm” and stipulated without detracting from the generality of that or the meaning of that expression, that the following leads – and this is of “serious harm” – that, as their Honours put it:

This is not a case which engages the proposition for which . . . Shin Kobe Maru –

stands.  Now, that, of course, was to take from a case – which had nothing like the interpretative exercise confronting their Honours in this case – an observation which, in any event, is not against the reading that we were advancing, and which found favour with two other judges, because there had not been any definition of “serious harm”, as their Honours in the plurality in WZAPN made clear.  Rather, as I have shown you from the provisions, there is a command that a reference to “maintenance” is to be a reference as well to those matters, which include: 

installation of an additional facility –

paraphrased in the same place – and to no more burdensomely than: 

as the original facility –

STEWARD J:   Mr Walker, what work do you give to the word “additional” in 7(3)(e)?

MR WALKER:   It is tempting, your Honour – we will respond simply and, I hope, in orthodox fashion.  Its ordinary meaning, so that there is, truly, the addition or cumulation or new entry of something else not that which went before.

STEWARD J:   But if you were right, they could have written:  the installation of a facility in the same location.

MR WALKER:   They have done that, because the words in question – I take your Honour’s point, with respect, but the words in question are precisely to that effect:

the installation of an additional facility –

STEWARD J:   But is not the presence of the word “additional” really intended to tie the new facility, or the new thing, to the pre‑existing thing?

MR WALKER:   No, not at all.

STEWARD J:   Is “additional” to it?

MR WALKER:   No, no, no.  Your Honour, there, is asking whether that possible meaning – according to a dictionary – of the word “additional” which is supplementary – so, a hierarchy.

STEWARD J:   Yes.

MR WALKER:   There is the main and then there is subordinate – that is, absolutely, not what these words ‑ ‑ ‑

STEWARD J:   Why not?  And I will not interrupt you this time, I promise.

MR WALKER:   No, no, with great respect, your Honour, it is not an interruption at all.  But the point is, of course, that these are provisions which contemplate what is called the “installation” – in other words, we are not talking about new modifications – of an additional facility, and then the only relation the words posit with the “original facility”, so‑called, is that it is in the same location – so long as I say as the limiting conditions are observed, none of which says anything about supplementing.  To remember, the context is that rivals are to provide access, and it is for those reasons that read purposively, this a statute that certainly does not contemplate that the broad, ordinary meaning of “an additional facility” – one more – can possibly be read in the artificial – and we submit, strained – way that the majority would have it at page 79, or 145, paragraph 41, that your Honours have seen.

There are very difficult notions – non‑textual or even anti‑textual – introduced in that paragraph.  First of all, a stipulation that the installation of an additional facility must be one aimed at keeping the facility in due condition; meaning, presumably, the original facility is totally unsupported by the texts.  Were that regarded as a guiding principle, one searches in vain for any rational way in which that could apply to removal or replacement in whole.  That would be absurd.  We drop down to about line 25, or so.  As one of their conclusory statements, their Honours say:

The “additional facility” ought to be properly “additional” –

A word which is question‑begging, completely, and which is the very antithesis of what you would expect by way of the clarity of definition where the possible taking or acquisition of property is in question.  This notion of being properly additional is nowhere explained except that, somehow or other, the additional facility must be subordinate to or serving the interests of those who own the original facility which is, of course, contrary to the scheme by which rivals give access to their counterparts.

A few lines further down, you see another unsatisfactory gloss contrary to what you would expect in this kind of definition for the purposes of this kind of acquisition or granting of rights truly additional.  With respect, if you add one facility in the same location as there is already an original facility, that is, on any understanding of the word “additional”, truly additional.

I see the lights, your Honours.  May it please the Court.

KIEFEL CJ:   Yes, thank you.  We need not trouble you, Mr Horton.  In our view, there is no reason to doubt the correctness of the decision of the Full Court below.  The application for special leave is refused, with costs.

AT 9.50 AM THE MATTER WAS CONCLUDED