Optus Fixed Infrastructure Pty Ltd v Telecommunications Industry Ombudsman

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FEDERAL COURT OF AUSTRALIA

Optus Fixed Infrastructure Pty Ltd v Telecommunications Industry Ombudsman [2023] FCA 928  

File number(s): QUD 137 of 2022
Judgment of: COLLIER J
Date of judgment: 9 August 2023
Catchwords:

JUDICIAL REVIEW –Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 - Judiciary Act 1903 (Cth) s 39B – jurisdictional fact - review of decision of Telecommunications Industry Ombudsman that no jurisdiction to determine objection to activities proposed by telecommunications carrier – application dismissed

STATUTORY INTERPRETATION – Sch 3 cl 6 Telecommunications Act 1997 (Cth)– s 3.1(4) Telecommunications (Low-impact Facilities) Determination 2018 (Cth) – meaning of “ancillary” – whether proposed cabling was “ancillary” to a “low-impact facility” – whether installation of proposed cabling was an activity “ancillary or incidental to” the installation of a facility activity –  requirement that statutory authority to engage in otherwise tortious conduct be clearly expressed in unmistakable and unambiguous language

Legislation:

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Judiciary Act 1903 (Cth) s 39B

Telecommunications Act 1997 (Cth) Sch 3 cll 2, 5, 6, 15, 17

Low-impact Facilities Determination 1997 (Cth)

Telecommunications (Low Impact Facilities) Determination 1997 (Amendment No. 1 of 2012) (Cth)

Telecommunications (Low-impact Facilities) Determination 2018 (Cth) ss 3.1, 3.2

Telecommunications Code of Practice 2021 (Cth) ss 4.36, 4.37
Cases cited:

Coco v R (1994) 179 CLR 427

Director of Housing v Hutchison 3G Australia Pty Ltd [2003] VSC 310

Friday v Minister for Primary Industry and Resources [2021] FCA 794

Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 127 LGERA 95

OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 486

State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158
Division: General Division
Registry: Queensland
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 91
Date of last submission/s: 9 December 2022
Date of hearing: 15 and 16 September 2022
Counsel for the Applicant Ms T Wong SC with Ms D Forrester
Solicitor for the Applicant Clayton Utz
Counsel for the First Respondent The First Respondent did not appear.
Counsel for the Second Respondent Ms N Kidson KC with Dr G Sammon
Solicitor for the Second Respondent Crown Law
Counsel for the Third Respondent Ms EJ Longbottom KC with Mr C Tessman
Solicitor for the Third Respondent  Ashurst

ORDERS

QUD 137 of 2022
BETWEEN:

OPTUS FIXED INFRASTRUCTURE PTY LTD ACN 092 450 783

Applicant
AND:

TELECOMMUNICATIONS INDUSTRY OMBUDSMAN

First Respondent

STATE OF QUEENSLAND

Second Respondent

QUEENSLAND MOTORWAYS PTY LIMITED ACN 067 242 513

Third Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

9 AUGUST 2023

THE COURT ORDERS THAT:

1.The Amended Originating Application filed on 23 May 2022 be dismissed.

2.The Applicant pay the costs of Queensland Motorways Pty Limited and the State of Queensland, such costs to be taxed if not otherwise agreed.

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


REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

  1. Before the Court is an amended originating application filed 23 May 2022 for judicial review…

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Details
Case
[2023] FCA 928
Decision Date

CaseChat Overview and Summary

Optus Fixed Infrastructure Pty Ltd sought a judicial review of the decisions of the Telecommunications Industry Ombudsman (TIO) which declined to hear objections to activities proposed by Optus in relation to the Gateway Bridge in Brisbane. The objections were raised by the State of Queensland and Queensland Motorways Pty Limited. The primary issue for the court was the interpretation of the term "ancillary" in the context of clause 6 of Schedule 3 of the Telecommunications Act 1997 (Cth) and whether the proposed cabling activity was ancillary to a low-impact facility. Optus argued that the TIO erred in its interpretation of the statutory provisions and in finding that the proposed cable across the Bridge was not ancillary to any cabling installed in the approaches to the Bridge.

The court considered the statutory provisions, particularly clause 6 of Schedule 3 of the Telecommunications Act and the Telecommunications (Low-impact Facilities) Determination 2018 (Cth). The court held that the TIO was correct in its interpretation of the statutory provisions and that the proposed cable across the Bridge was not ancillary to any cabling installed in the approaches. The court further held that the TIO was correct in finding that the proposed cable was a separate and freestanding element of the same system. The court dismissed the application and ordered Optus to pay the costs of the respondents.

The court's decision was based on a careful interpretation of the statutory provisions and a consideration of the legislative intent. The court held that the term "ancillary" must be clearly expressed in unmistakable and unambiguous language and that the legislative intent could not be elevated above the language of the Determination itself. The court held that the TIO was correct in finding that the proposed cable across the Bridge was not ancillary to any cabling installed in the approaches and that the TIO had not erred in its interpretation of the statutory provisions. The court's decision is a reminder of the importance of a careful and contextual interpretation of statutory provisions and the need for statutory authority for tortious conduct to be clearly expressed in unmistakeable and unambiguous language.

Orders

Orders of the court

1. The Amended Originating Application filed on 23 May 2022 be dismissed.

2. The Applicant pay the costs of Queensland Motorways Pty Limited and the State of Queensland, such costs to be taxed if not otherwise agreed.

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

Background

Background to the litigation

Optus sought the following Orders:1. An order quashing JD1 and/or a declaration that JD1 is void. 2.An order quashing JD2 and/or a declaration that JD2 is void.3. A declaration that the activities proposed by the Applicant amount to the "installation of a facility" within the meaning of clause 6 of Schedule 3 of the Act.4. A declaration that the TIO has jurisdiction to determine the objections.5. An order referring the objections to the TIO for determination according to law.6. An order that the Respondents pay the Applicant's costs of the proceeding.7.Such further or other order as this Honourable Court thinks fit.BACKGROUND Optus is a licensed telecommunications carrier under the Telecommunications Act. The TIO’s functions under the Telecommunications Act include determining objections made to activities proposed by carriers under Sch 3 of the Telecommunications Act. Optus has sought approval to extend its network through a crossing over the Sir Leo Hielscher Bridge (also known as the Gateway Bridge) (the Bridge). The Bridge consists of a pair of bridges, one carrying traffic northward (the North Bridge), and one carrying traffic southward with a pedestrian walkway (the South Bridge). The Bridge crosses the Brisbane River and forms part of the Gateway Motorway in Brisbane, linking the suburbs of Eagle Farm and Murarrie. The Second Respondent, the State of Queensland (the State), through the Department of Transport and Main Roads (TMR), manages and operates the Bridge. The Third Respondent, Queensland Motorways Pty Limited (Queensland Motorways) has an agreement with the State to occupy the Bridge, and is the toll road operator. Clause 17 of Sch 3 of the Telecommunications Act provides as follows:17 Notice to owner of land—general(1)Before engaging in an activity under Division 2, 3 or 4 in relation to any land, a carrier must give written notice of its intention to do so to:(a) the owner of the land; and(b) if the land is occupied by a person other than the owner—the occupier.(2)The notice must specify the purpose for which the carrier intends to engage in the activity.(3)The notice under subclause (1) must contain a statement to the effect that, if a person suffers financial loss or damage in relation to property because of anything done by a carrier in engaging in the activity, compensation may be payable under clause 42.(4)The notice must be given at least 10 business days before the carrier begins to engage in the activity.(4A)Despite subclause (4), the notice need be given only 2 business days before the carrier begins to engage in an activity authorised by Division 2 (which deals with inspection) that:(a) is not inconsistent with Australia’s obligations under a listed international agreement; and(b)could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and(c)will not have an adverse effect on a streetscape or other landscape; and(d) will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.(5)A person may waive the person’s right to be given a notice under subclause (1).(6)Subclause (1) does not apply if:(a) the carrier intends to engage in activities under Division 2 (which deals with inspection of land), 3 (which deals with installation of facilities) or 4 (which deals with maintenance); and(b) those activities need to be carried out without delay in order to protect:(i) the integrity of a telecommunications network or a facility; or(ii) the health or safety of persons; or(iii) the environment; or(iv) property; or(v) the maintenance of an adequate level of service.(6A) Subclause (1) does not apply if:(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.(6B) For the purposes of this clause, a temporary defence facility is a facility of the kind that is mentioned in paragraph 6(1)(c) of this Schedule.(7) Subclause (1) does not apply if the carrier intends to engage in an activity under Division 2 (which deals with inspection) in relation to land that is a public place and the activity:(a)is not inconsistent with Australia’s obligations under a listed international agreement; and(b) could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and(c) will not have an adverse effect on a streetscape or other landscape; and(d) will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.(8) Subclause (1) does not apply if:(a) the carrier intends to install a low-impact facility under Division 3; and(b) the installation of the facility is covered by paragraph 6(5)(g).(9) For the purposes of this clause, low-impact facility has the same meaning as in clause 6.

Evidence

Evidence Before The Court

The TIO reached an equivalent conclusion in respect of TMR’s objection.EVIDENCE All parties filed evidence in the proceedings, some of which was the basis of objection although I admitted some evidence provisionally subject to any determination on various issues of construction. As events unfolded, however, it became plain that fundamental factual issues were not in dispute. The key issue before the Court was one of statutory construction. Accordingly before turning to the submissions of the parties it is convenient to examine the relevant legislation.RELEVANT LEGISLATIVE PROVISIONS Telecommunications Act The objects of the Telecommunications Act are as follows:3 Objects(1)The main object of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, is to provide a regulatory framework that promotes:(a)the long-term interests of end-users of carriage services or of services provided by means of carriage services; and(b) the efficiency and international competitiveness of the Australian telecommunications industry; and(c) the availability of accessible and affordable carriage services that enhance the welfare of Australians.… (emphasis added). Section 7 of the Telecommunications Act defines “facility” in the following terms:facility means:(a)any part of the infrastructure of a telecommunications network; or(b) any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.Schedule 3 Schedule 3 of the Telecommunications Act sets out the carriers’ powers and immunities in relation to inspection (Division 2), installation (Division 3) and maintenance (Division 4). Relevant to this matter are the powers and immunities relating to installation provided in Sch 3, cl 5: 5 Inspection of land (1)A carrier may, for the purposes of determining whether any land is suitable for its purposes:(a) enter on, and inspect, the land; and(b) do anything on the land that is necessary or desirable for that purpose, including, for example:(i) making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and(iii) closing, diverting or narrowing a road or bridge; and(iv) installing a facility in, over or under a road or bridge; and(v) altering the position of a water, sewerage or gas main or pipe; and(vi) altering the position of an electricity cable or wire.(2) A carrier may, for the purpose of surveying or obtaining information in relation to any land that, in the carrier’s opinion, is or may be suitable for its purposes:(a) enter on any land; and(b) do anything on the entered land that is necessary or desirable for that purpose, including, for example:(i) making surveys and taking levels; and(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and(iii) closing, diverting or narrowing a road or bridge; and(iv)installing a facility in, over or under a road or bridge; and(v) altering the position of a water, sewerage or gas main or pipe; and(vi) altering the position of an electricity cable or wire.(3) A reference in this Part to engaging in activities under this Division includes a reference to exercising powers under this Division.

Decision

Reasons for decision

The two decisions of the TIO, which are on substantially the same terms, will be referred to collectively as the Decision. The Decision relates to the powers of a carrier to carry out the installation of a facility that is “ancillary” to a “low-impact facility”; or, alternatively, for a carrier to engage in an activity that is “ancillary or incidental” to the installation of a low-impact facility under clause 6 of Schedule 3 of the Telecommunications Act 1997 (Cth) (Telecommunications Act). Optus sought the following Orders:1. An order quashing JD1 and/or a declaration that JD1 is void. 2.An order quashing JD2 and/or a declaration that JD2 is void.3. A declaration that the activities proposed by the Applicant amount to the "installation of a facility" within the meaning of clause 6 of Schedule 3 of the Act.4. A declaration that the TIO has jurisdiction to determine the objections.5. An order referring the objections to the TIO for determination according to law.6. An order that the Respondents pay the Applicant's costs of the proceeding.7.Such further or other order as this Honourable Court thinks fit.BACKGROUND Optus is a licensed telecommunications carrier under the Telecommunications Act. The TIO’s functions under the Telecommunications Act include determining objections made to activities proposed by carriers under Sch 3 of the Telecommunications Act. Optus has sought approval to extend its network through a crossing over the Sir Leo Hielscher Bridge (also known as the Gateway Bridge) (the Bridge). The Bridge consists of a pair of bridges, one carrying traffic northward (the North Bridge), and one carrying traffic southward with a pedestrian walkway (the South Bridge). The Bridge crosses the Brisbane River and forms part of the Gateway Motorway in Brisbane, linking the suburbs of Eagle Farm and Murarrie. The Second Respondent, the State of Queensland (the State), through the Department of Transport and Main Roads (TMR), manages and operates the Bridge. The Third Respondent, Queensland Motorways Pty Limited (Queensland Motorways) has an agreement with the State to occupy the Bridge, and is the toll road operator. Clause 17 of Sch 3 of the Telecommunications Act provides as follows:17 Notice to owner of land—general(1)Before engaging in an activity under Division 2, 3 or 4 in relation to any land, a carrier must give written notice of its intention to do so to:(a) the owner of the land; and(b) if the land is occupied by a person other than the owner—the occupier.(2)The notice must specify the purpose for which the carrier intends to engage in the activity.(3)The notice under subclause (1) must contain a statement to the effect that, if a person suffers financial loss or damage in relation to property because of anything done by a carrier in engaging in the activity, compensation may be payable under clause 42.(4)The notice must be given at least 10 business days before the carrier begins to engage in the activity.(4A)Despite subclause (4), the notice need be given only 2 business days before the carrier begins to engage in an activity authorised by Division 2 (which deals with inspection) that:(a) is not inconsistent with Australia’s obligations under a listed international agreement; and(b)could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and(c)will not have an adverse effect on a streetscape or other landscape; and(d) will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.(5)A person may waive the person’s right to be given a notice under subclause (1).(6)Subclause (1) does not apply if:(a) the carrier intends to engage in activities under Division 2 (which deals with inspection of land), 3 (which deals with installation of facilities) or 4 (which deals with maintenance); and(b) those activities need to be carried out without delay in order to protect:(i) the integrity of a telecommunications network or a facility; or(ii) the health or safety of persons; or(iii) the environment; or(iv) property; or(v) the maintenance of an adequate level of service.(6A) Subclause (1) does not apply if:(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.(6B) For the purposes of this clause, a temporary defence facility is a facility of the kind that is mentioned in paragraph 6(1)(c) of this Schedule.(7) Subclause (1) does not apply if the carrier intends to engage in an activity under Division 2 (which deals with inspection) in relation to land that is a public place and the activity:(a)is not inconsistent with Australia’s obligations under a listed international agreement; and(b) could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and(c) will not have an adverse effect on a streetscape or other landscape; and(d) will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.(8) Subclause (1) does not apply if:(a) the carrier intends to install a low-impact facility under Division 3; and(b) the installation of the facility is covered by paragraph 6(5)(g).(9) For the purposes of this clause, low-impact facility has the same meaning as in clause 6.

Ratio Decidendi

Legal Principle Established

Materially however they both submitted, in summary:·The proposed cable across the Bridge could not be described as “ancillary” to low-impact facilities installed in either or both of the Approaches to the Bridge;·The proposed cable across the Bridge could not be described as an “activity” either ancillary or incidental to the low-impact facilities installed in either or both of the Approaches to the Bridge; ·The legislative intention in enacting the 2018 Determination was relevant to interpretation of the Determination, but could not be elevated above the language of the Determination itself;·Specifically in this case, as the High Court explained in Coco v R (1994) 179 CLR 427 at 436, in construing legislative provisions and to the extent of any ambiguity, statutory authority for tortious conduct must be clearly expressed in unmistakeable and unambiguous language; and ·There was no error in the TIO characterising a proposed cable on the Bridge as a facility of the same form and function as the cable on the Approaches, and taking that factor into account in finding that the proposed cable was not ancillary to any cabling installed in the Approaches. A fair reading of the TIO’s reasons was that it considered the cable proposed to be installed across the Bridge, and the cables proposed for the Approaches, to be separate and freestanding elements of the same system. CONSIDERATION Optus relied on two grounds of review, as follows: 1.In making each of JD1 and JD2, the TIO made an error of law for the purposes of section 5(1)(f) of the ADJR Act and/or fell into jurisdictional error in wrongly construing her jurisdiction and in failing to exercise her jurisdiction. Particulars a. The existence of a ‘proposed activity’ which would constitute the ‘installation of a facility’ authorised by clause 6 of Schedule 3 of the Telco Act was a jurisdictional fact, because it was a pre-condition to the existence of jurisdiction by the TIO under Part 5, Division 5 of the Code. b. The TIO erred in making the following incorrect findings in respect of this jurisdictional fact:i.That the Proposed Activity on the Gateway Bridge is not the installation of a facility authorised by clause 6 of Schedule 3 of the Telco Act; and ii.That the Proposed Activity on the Gateway Bridge is not the installation of a facility that is ‘ancillary’ to a low-impact facility, within the meaning of section 3.1(4) of the Determination.2.In making each of JD1 and JD2, the TIO made an error of law for the purposes of section 5(1)(f) of the ADJR Act and/or a jurisdictional error in wrongly construing the phrase ‘installation of a facility’ in clause 6 of Schedule 3 of the Telco Act.a. The TIO erred in her construction of the word ‘ancillary’ in section 3.1(4) of the Determination. b. Further and/or in the alternative to particular (a), the TIO failed to have regard to the operation of Part 5 Division 5 of the Code and failed to view the Proposed Activity the subject of the respective objections as a whole; namely, as including the installation of fibre optic cable on both (i) the Gateway Bridge and (ii) the Approaches.