FEDERAL COURT OF AUSTRALIA
Telstra Corporation Limited v Melbourne City Council [2020] FCA 305
ORDERS
Applicant | ||
AND: | First Respondent CITY OF SYDNEY COUNCIL Second Respondent BRISBANE CITY COUNCIL Third Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. The installation of New Payphone Cabinets is an activity authorised by Schedule 3 to the Telecommunications Act 1997 (Cth) because it involves the installation of “low-impact facilities” within the meaning of Schedule 3 to the Telecommunications Act 1997 (Cth) and the Telecommunications (Low-impact Facilities) Determination 2018 (Cth).
THE COURT ORDERS THAT:
2. The parties file and serve any submissions in relation to costs within 7 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
O’CALLAGHAN J:
Introduction
1 This proceeding involves a question of statutory construction, namely whether the structure the front and back of which is depicted below (and which the parties called a New Payphone Cabinet) is a “low-impact facility” within the meaning of Schedule 3 to the Telecommunications Act 1997 (Cth) (the Telecommunications Act) and the Telecommunications (Low-impact Facilities) Determination 2018 (Cth) (the Determination):
2 The Determination provides that a structure is a low-impact facility if, among other things, it is a “[p]ublic payphone cabinet or booth”:
(a) used solely for carriage and content services; and
(b) not designed for other uses (for example, as a vending machine); and
(c) not fitted with devices or facilities for other uses; and
(d) not used to display commercial advertising other than advertising related to the supply of standard telephone services.
3 The question whether the New Payphone Cabinet satisfies these criteria is important because, if it does, no planning permit is required for its installation under relevant state planning laws.
4 The applicant (Telstra) says that the New Payphone Cabinet, which it wishes to install throughout Australia, including in Melbourne, Sydney and Brisbane, satisfies each of the criteria. It agrees that if it is to use the New Payphone Cabinets “to display commercial advertising”, it must first obtain planning permission from the local authorities responsible for administering applicable state planning legislation. Telstra contends however that, provided the New Payphone Cabinets are not used to display commercial advertising “at the time of their installation”, they will be low-impact facilities at that time.
5 Telstra seeks a declaration under s 21 of the Federal Court Act 1976 (Cth) that the installation of New Payphone Cabinets is an activity authorised by Schedule 3 to the Telecommunications Act, because it involves the installation of low-impact facilities within the meaning of Schedule 3 to the Telecommunications Act and the Determination.
6 The respondents, the Melbourne City Council (MCC), the City of Sydney Council and the Brisbane City Council (collectively, the Councils) contend that the New Payphone Cabinets are not low-impact facilities, because they are not “public payphone cabinets” within the meaning of the Determination, and because they do not satisfy any of the definitional criteria, (a), (b), (c) or (d). The Councils contend, among other things, that Telstra is impermissibly endeavouring to invoke statutory provisions relating to public payphones in order to erect structures that they say more closely resemble electronic billboards or “digital street furniture”. The Councils contend that Telstra may only install New Payphone Cabinets if it has been granted planning permission to do so, even if the cabinets are only ever intended to display advertising related to the supply of standard telephone services.
7 The City of Sydney Council and the Brisbane City Council were joined as respondents to the proceeding by consent. Telstra has not yet made any relevant application for planning permission to either the City of Sydney Council or the Brisbane City Council. Each of them adopted the submissions made on behalf of the MCC, and by their senior counsel made additional written and oral submissions in support of the case advanced by the MCC.
The facts
Background
8 The Telecommunications Act provides “a regulatory framework which was intended to promote the development of an efficient and competitive telecommunications industry, including the supply of carriage services to the public, and to ensure that such services are reasonably accessible, and are supplied efficiently and economically to meet the social and business needs of the Australian community (s 3)”: Bayside City Council v Telstra Corporation Limited (2004) 216 CLR 595, 616 [7] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
9 Telstra has a statutory “universal service obligation” to ensure that standard telephone services and payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they work or live: see Part 2, Division 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).
10 Section 9 of the latter Act defines that obligation in these terms:
9 Universal service obligation
(1) For the purposes of this Act, the universal service obligation is the obligation:
(a) to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.
(2) The obligation mentioned in paragraph (1)(a) includes the obligation to supply standard telephone services to people in Australia on request.
(2A) The obligation mentioned in paragraph (1)(b) includes the obligation to supply, install and maintain payphones in Australia …
11 The phrase “standard telephone services” (or STS) relevantly means “a carriage service … for … the purpose of voice telephony”: see s 7 of the Telecommunications Act, which applies the definition contained in s 6(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).
12 Telstra operates and maintains about 15,900 public payphones across Australia, which provide access to:
(a) local, national and international telephone calls, for a fee;
(b) text messages, for a fee;
(c) incoming calls, for free;
(d) 24-hour access to emergency services (including triple zero, Lifeline, the SES, Family Drug Support, MensLine Australia, Beyond Blue and the Suicide Call Back Service), for free; and
(e) directory assistance, for free.
13 In 2018, about 13 million telephone calls were made using Telstra’s public payphones. Of those calls, about 200,000 were emergency calls made to triple zero.
14 The majority of Telstra’s existing “old style” payphone cabinets were designed in the 1970s and 1980s. Annexure A to these reasons contains depictions of them, together with depictions of the New Payphone Cabinets, and their respective height, width, depth, total footprint and total volume (labelled as “total area (incl. height)”). The old style payphone cabinets include:
(a) “Majestic” single pedestal payphone cabinets, which can be installed either as a single payphone or two payphones back-to-back;
(b) “Boulevard” single pedestal payphone cabinets, which can be installed either as a single payphone or two payphones back-to-back;
(c) “Telebox” single pedestal payphone cabinets; and
(d) “Street Cab” full length and three-quarter enclosed booths.
15 Telstra adduced evidence that it is in the course of modernising its existing payphone network, by replacing its existing payphones, including in Melbourne, Sydney and Brisbane, with new digital public payphone cabinets. It is the first major upgrade in the design and functionality of such payphones since the 1980s.
16 The upgrade project involves the removal of existing payphones and the installation in their place of New Payphone Cabinets, which incorporate a payphone, fixed and mobile telecommunications network connections to the payphone cabinet, a mobile device charging port, and front and rear facing electronic LCD screens, through which digital content can be delivered using fixed and mobile network connections.
The 34 New Payphone Cabinets already installed in Melbourne
17 Between June and October 2018, Telstra installed 34 New Payphone Cabinets across Melbourne’s central business district (34 New Payphone Cabinets). It did so after it had served on the MCC “land access and activity notices” for their installation pursuant to cl 17 of Schedule 3 to the Telecommunications Act, to which the MCC did not object. The notices each described the cabinets as “low-impact facilities”. No planning permits were sought for their installation.
18 Some years before their installation, in 2015, AdBooth Pty Ltd, a wholly owned subsidiary of JCDecaux Australia, applied to the MCC on Telstra’s behalf for planning permission to display digital third-party commercial advertising on the (then proposed) 34 New Payphone Cabinets. Some of these applications sought amendments to existing permits such that third-party electronic advertising would be allowed (at sites where analogue advertising on an old style cabinet was already permitted), others sought new permits to the same effect. The applications included plans that set out the nature and features of the New Payphone Cabinets.
19 The MCC granted the commercial advertising permit applications in respect of the 34 New Payphone Cabinets in 2016 (the commercial advertising permits). Telstra then duly installed each of the 34 cabinets.
20 For a short period thereafter, Telstra displayed on those cabinets only advertising related to the supply of standard telephone services. The displays were subsequently changed to show other commercial advertising, consistently with the terms of the commercial advertising permits granted by the MCC.
21 The majority of the 34 New Payphone Cabinets include a Wi-Fi antenna housing affixed to the top of the structure, with a height of 300mm, a width of 450mm and a depth of 312mm. The Wi-Fi antenna housing contains a Wi-Fi access point device, an LTE antenna and four omnidirectional antennae. This image depicts the front of such a Cabinet:
22 The 34 New Payphone Cabinets provide, or are able to provide, the following services:
(a) local, national and international telephone calls (for a fee), 24-hour access to emergency services (for free), text messaging services (for a fee), and directory assistance (for free), through the payphone instrument;
(b) Wi-Fi services, where applicable, connecting Wi-Fi enabled devices to the internet;
(c) near-field communication (NFC) connectivity services, connecting mobile devices with an internet connection to a URL on the internet;
(d) the display of digital advertising content (including on electronic screens on the reverse of the cabinet depicted above, an example of which is shown at “V1” in Annexure A) delivered through fixed and mobile telecommunications network connections on the electronic display screens; and
(e) charging devices with USB charging ports.
23 Almost all of the 34 New Payphone Cabinets provide Wi-Fi services, in addition to mobile phone charging services.
24 The 34 New Payphone Cabinets are also capable of being used by local councils and emergency services organisations (including the police) to deliver safety information to the public, in real-time, via their rear facing electronic screens, although the Councils submitted that there is no evidence they will in fact ever be used for that purpose.
Applications to MCC with respect to 81 New Payphone Cabinets
25 In November 2018, Urbis Pty Ltd, as Telstra’s agent, made 81 separate applications for planning permits to display promotional signage on 81 additional proposed New Payphone Cabinets. Telstra intends to make similar applications in Brisbane and Sydney, and to install 1,800 New Payphone Cabinets throughout Australia.
26 The planning permit applications each contained the following statements:
Telstra is partnering with JCDecaux, the world’s largest outdoor communication company, to provide, operate, service and maintain over 1,800 new Smart City Payphones areas [sic] across Australia …
Telstra can install and operate the Smart City Payphones as a ‘low-impact facility’ with immunity from state law and the powers and functions of local government, pursuant to of [sic] Schedule 3 of the Telecommunications Act 1997 (Cth). This statutory right includes the installation and use of a digital screen (as a part of the Smart City Payphone) for the purposes of advertising, related only to the supply of standard telephone services and display of information. However, town planning approval is required to use the digital screen (as a part of the Smart City Payphone) for third party advertising content purposes.
The introduction of an additional form of advertising content on the Smart City Payphone, after the completion of the compliant exercise of statutory rights under Schedule 3 of the Telecommunications Act 1997 Cth (and subject to town planning approval being procured for a change of content for the existing digital screen), does not invalidate the installation nor affect Telstra’s statutory powers and immunities in respect of the Smart City Payphone.
…
This application seeks consent for the change of content from Telstra Standard Telephone Service (STS) advertising, to allow third-party advertising on the Smart City Payphone.
…
As a result of the installation of the Smart City Payphone, approval is sought for the change of content from Telstra Standard Telephone Service (STS) advertising, to allow third-party advertising.
The scope of this application is limited to the third-party advertising content change only (detailed on plan TEL-001 contained at the back of this submission). Approval for the structure is not required pursuant to Schedule 3 of the Telecommunications Act 1997 Cth and therefore is not part of this proposal.
Dimensions for the signage are 1,678mm height and 970mm width. The proposed signage dimensions will remain consistent with the existing sign dimensions as the same digital screen will be utilised …
…
The Smart City Payphone (including digital screen) will be initially installed under Schedule 3 of the Telecommunications Act 1977 Cth and will display Telstra STS related advertising (in accordance with Telecommunications (Low-impact Facilities) Determination 2018.
…
All digital infrastructure is remotely monitored and controlled by JC Decaux staff via an internal content management software system.
27 The plan “TEL-001” referred to in the permit applications is reproduced in Annexure B to these reasons. As that plan shows, and consistently with (i) the terms of the application set out at [26] above, and (ii) Telstra’s insistence that the New Payphone Cabinets are low-impact facilities with immunity from state law and the powers and functions of local government, planning approval was sought only in respect of the proposed display of third-party commercial advertising on digital screens. Telstra did not seek permission to install the cabinets.
28 The following statement appears in the permit applications under the heading “Commonwealth Legislation”, which reflects the same description of the legal regime set out at [26] above:
Telstra can install and operate the Smart City Payphones as a ‘low impact facility’ with immunity from state law and the powers and functions of local government pursuant to of [sic] Schedule 3 of the Telecommunications Act 1997 (Cth). This statutory right includes the installation and use of a digital screen (as part of the Smart City Payphone) for the purposes of advertising, related only to the supply of standard telephone services and display of information. However, town planning approval is required to utilise the digital screen, (as part of the Smart City Payphone) for non-Telstra related (third-party) advertising.
In this instance, it is proposed that the Smart City Payphone will only display advertising related to the supply of standard telephone services (in compliance with the Low Impact Facilities Determination 2018 (Cth) during and upon the completion of the exercise of statutory right under Schedule 3 of the Telecommunications Act 1997 (Cth). Subject to the relevant planning approval being obtained to allow third-party advertising, this would then be introduced at a future point in time.
Introduction of an additional form of advertising content on the Smart City Payphone, after the completion of the compliant exercise of statutory rights under Schedule 3 of the Telecommunications Act 1997 Cth (and subject to town planning approval being procured for a change of content for the existing digital screen), does not invalidate the installation nor affect Telstra’s statutory powers and immunities in respect of the Smart City Payphone.
29 Statements along the same lines appear under the heading “Planning Assessment”, as follows:
The Smarty [sic] City Payphone structure is to be erected pursuant to Schedule 3 of the Telecommunications Act 1997 (Cth). This statutory right includes the installation and use of a digital screen (as a part of the Smart City Payphone) for the purposes of advertising, related only to the supply of standard telephone services and display of information. However, town planning approval is required to utilise the electronic advertising screen, (as a part of the Smart City Payphone) for non-Telstra related (third-party) advertising. The planning merits of the proposal are therefore to have regard to this permit requirement.
30 The “Planning Assessment” section said further that:
The application has been assessed against relevant planning policies and considerations, and is summarised as follows:
• The proposed signs are permissible under the planning controls applying to the site.
• The size, design and character of the proposed signs, is considered to appropriately address relevant planning controls and policies.
• The vitality of the area will remain unchanged as the third-party signage will replace the Telstra Standard Telephone Service (STS) advertising, therefore avoiding visual pollution.
• The light spill and architecture of the surrounding buildings and the surrounding streetscape character remains unchanged.
• The signs are confined within the Smart City Payphone, replace the Telstra Standard Telephone Service (STS) advertising and does not protrude above surrounding buildings or tree canopies.
• The scale and form of the proposed signs is appropriate to the streetscape, and remains unchanged from the Telstra Standard Telephone Service (STS) advertising.
• The signs are high quality materials and remain physically unchanged from the Telstra Standard Telephone Service (STS) advertising.
• The signs facilitate visual communication of a scale and extent that does not to result in adverse visual effects or clutter.
• The internal illumination of the signs remains unchanged from the Telstra Standard Telephone Service (STS) advertising, complies with relevant Australian Standards, and does not result in glare or other effects that compromise the safety of pedestrians, bicyclists and vehicles.
• The proposed signs are indistinguishable from the Telstra Standard Telephone Service (STS) advertising signs and do not detract from the overall amenity and character of the area and do not adversely impact any residences or other sensitive land uses in the area.
• Important views, vistas or viewing rights of other advertisers are unaffected by the non-Telstra related (third-party) advertising.
• The sites are suitable for the proposed change to third party advertising given their existing use as Smart City Payphone facility.
MCC refusal of the 81 applications
31 In March 2019, the MCC refused each of the 81 applications. It did so in each case on two separate grounds, namely that:
(1) “[t]he proposed payphone and electronic promotional sign[s] [were] not … low-impact facilit[ies] as described in the Telecommunications (Low-impact Facilities) Determination 2018 (Cth) and [were] therefore subject to the Melbourne Planning Scheme”; and
(2) the payphones and the signs were “not considered acceptable, having regard to the urban design, built environment, safety and amenity Objectives, Strategies and Decision Guidelines” of 21 separately identified clauses of the Melbourne Planning Scheme.
Applications to VCAT
32 On the same day that the MCC refused the 81 applications, it filed an application in the Victorian Civil and Administrative Tribunal (VCAT), seeking declarations under s 149A of the Planning and Environment Act 1987 (Vic) in the following terms:
(a) that the New Payphone Cabinets are not ‘low-impact facilities’ as described in the [Determination];
(b) that the construction of a New Payphone Cabinet requires a planning permit;
(c) that the construction of, and display of advertising on, each New Payphone Cabinet should properly be considered together, as part of the assessment of a single planning permit application for each New Payphone Cabinet …
33 JCDecaux (on behalf of Telstra) subsequently lodged applications for de novo merits review of 76 of the 81 MCC refusal decisions with the VCAT pursuant to s 77 of the Planning and Environment Act 1987 (Vic).
34 The VCAT applications were, by agreement between the parties, stayed pending the determination of this proceeding.
Role of AdBooth
35 Pursuant to the terms of a 2017 agreement called an “Out of Home Advertising Program Agreement” between Telstra and AdBooth Pty Ltd, AdBooth is responsible for:
(a) designing and developing the New Payphone Cabinets, in conjunction with Telstra;
(b) producing/supplying the New Payphone Cabinets;
(c) obtaining planning permits for the display of commercial advertising on the New Payphone Cabinets;
(d) together with Telstra, selecting locations for the New Payphone Cabinets with regard to advertising value;
(e) installing and maintaining the New Payphone Cabinets;
(f) the production, installation, removal and management of all advertising (including STS related, or other Telstra, advertising) displayed on the 32” screens; and
(g) all aspects of the sales, production, installation and removal of third-party commercial advertising on the 75” screens.
36 Telstra is responsible for arranging for the installation and testing of the payphone instrument, and the installation of communications cables and pits.
Statutory framework
The Telecommunications Act and the Determination
37 The Explanatory Memorandum to the Telecommunications Bill 1996 (Cth) relevantly provided as follows:
Benefits to carriers and carriage service providers
Telstra and its predecessors have enjoyed broad land access powers and a wide range of immunities from State/Territory planning and environment laws since 1901. With the introduction of competition, these powers and immunities were extended to the new carriers (Optus - in 1991 - and Vodafone - in 1993) under the provisions of Part 7 of the Telecommunications Act 1991.
Taking into consideration the more competitive environment from 1 July 1997, community concerns about infrastructure rollout and the need to have a stable environment to encourage infrastructure investment, the rollout of infrastructure will be generally subject to State/Territory planning laws from 1 July 1997, with Commonwealth law to apply in specified circumstances.
Schedule 3 to this Bill provides for carriers to retain standing land access powers and immunities from State and Territory planning and environment laws for:
(i) inspection of land;
(ii) maintenance;
(iii) installation of declared ‘low impact’ facilities;
(iv) temporary installation of defence facilities; and
(v) connection of subscribers to existing networks until 30 June 2000.
AUSTEL will convene a public inquiry to advise on what constitutes ‘low impact’ facilities. The definition will take into account the type of facility and its location. The Minister for Communications and the Arts will determine ‘low impact’ facilities following the inquiry.
38 No evidence was adduced about the AUSTEL public inquiry, so I assume that it has no relevance to any question of the proper construction of the Determination in this proceeding.
39 Section 484 of the Telecommunications Act provides with admirable brevity that “Schedule 3 has effect”.
40 Clause 6 of Schedule 3 to the Telecommunications Act is headed “Installation of facilities”. Clause 6(1) of Schedule 3 provides:
(1) A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:
(a) the carrier is authorised to do so by a facility installation permit; or
(b) the facility is a low-impact facility (as defined by subclause (3)); or
(c) the facility is a temporary facility for use by, or on behalf of, a defence organisation for defence purposes.
Note: If the installation of a facility is not authorised by this clause, the installation may require the approval of an administrative authority under a law of a State or Territory.
41 Clause 6(2) of Schedule 3 relevantly provides:
(2) If subclause (1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity:
(a) enter on, and occupy, any land; and
(b) on, over or under the land, do anything necessary or desirable for those purposes …
42 Clause 2 of Schedule 3 defines the concept of “installation” as follows:
installation, in relation to a facility, includes:
(a) the construction of the facility on, over or under any land; and
(b) the attachment of the facility to any building or other structure; and
(c) any activity that is ancillary or incidental to the installation of the facility (for this purpose, installation includes an activity covered by paragraph (a) or (b)).
43 Clause 6(3) of Schedule 3 states that the “Minister may, by legislative instrument, determine that a specified facility is a low-impact facility for the purposes of this clause. The determination has effect accordingly”.
44 In accordance with the power conferred by cl 6(3), the Minister made the Determination. The Explanatory Statement to the Determination explained its relevant history and purpose as follows:
Authority
Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Act) provides authority for carriers to inspect land, maintain facilities, connect subscribers to an existing network or install low-impact facilities or temporary defence facilities. Other installation of facilities are regulated under State or Territory law.
Subclause 6(3) of Schedule 3 to the Act allows the Minister to determine that specified facilities are low-impact facilities for the purpose of clause 6 of Schedule 3 to the Act. This specification power includes the power to determine particular classes of facilities to be low-impact facilities …
The Telecommunications (Low-impact Facilities) Determination 2018 (the Determination) essentially remakes in substance, the conditions set out in the Telecommunications (Low-impact Facilities) Determination 1997 (1997 Determination), with some minor modifications. The 1997 Determination was due to sunset on 1 April 2019 in accordance with the Legislation Act 2003 …
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
…
Purpose and operation
Telecommunications services play an important and expanding role in how people, businesses and governments go about their daily lives. To help provide Australians with better telecommunications services more quickly and cost effectively, telecommunications carriers have powers and immunities under Schedule 3 to the Act.
Carrier powers and immunities give telecommunications carriers the ability to enter land and install and maintain some types of telecommunications network facilities. They are critical to the efficient construction and maintenance of telecommunications networks, which are a vital component of Australia’s critical infrastructure, and immensely important to Australians’ everyday lives. They minimise the regulatory burden on carriers so that they can quickly and cost-effectively meet the community’s need for access to affordable, fast and reliable telecommunications services.
Most aspects of carrier powers and immunities have been in place since 1997.
Schedule 3 to the Act provides carriers with powers to enter land for inspection, and to install and maintain certain types of facilities. It also provides certain immunities, including from a range of state and territory laws when carrying out those activities, such as those laws relating to land use, planning, design, construction, siting, tenancy, environmental assessments and protection.
The Determination contains a list of low-impact telecommunications facilities that can be installed under carrier powers and immunities. The low-impact list does not include telecommunications towers, as the installation of these facilities is governed by State and Territory laws.
The definition of low-impact facility
45 The Determination defines a low-impact facility in s 3.1 and in the Schedule to the Determination.
46 The Regulation Impact Statement that accompanied the original, 1997 version of the Determination (the Telecommunications (Low-impact Facilities) Determination 1997 (Cth)) explained that its purpose was “to specify where a carrier can enter land and install a low-impact telecommunications facility without seeking approval under State and Territory laws”.
47 The Regulation Impact Statement continued as follows:
The Determination is intended to encourage the development by carriers of low-impact networks which have greater visual amenity and do not raise significant community concern. A low-impact network would meet the twin objectives of providing telecommunications services to the community and meeting the broader environmental and social concerns of the community.
… The Determination contains a list of telecommunications facilities and activities that are essential to maintaining telecommunications networks but are unlikely to cause significant community disruption during their installation or operation. The list also includes radio communications facilities, underground and above-ground housings, underground cable facilities and payphones all limited by size and location.
(Emphasis added.)
48 Section 3.1 of the Determination provides:
(1) A facility described in column 2 of an item in the Schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item.
(2) However, the facility is not a low-impact facility if the area is also an area of environmental significance.
(3) For subsection (1), trivial variations for a facility mentioned in column 2 are to be disregarded.
(4) …
49 Part 6 of the Schedule to the Determination relates to public payphones. It specifies the circumstances in which “public payphones” are properly to be characterised as a “low-impact facility”:
Part 6 – Public payphones
Column 1 Item no. | Column 2 Facility | Column 3 Areas |
1 | Public payphone cabinet or booth: (a) used solely for carriage and content services; and (b) not designed for other uses (for example, as a vending machine); and (c) not fitted with devices or facilities for other uses; and (d) not used to display commercial advertising other than advertising related to the supply of standard telephone services | Residential Commercial Industrial Rural |
2 | Public payphone instrument: (a) used solely for carriage and content services; and (b) not designed for other uses (for example, as a vending machine); and (c) not fitted with devices or facilities for other uses; and (d) not used to display commercial advertising other than advertising related to the supply of standard telephone services or displayed as part of the supply of a content service | Residential Commercial Industrial Rural |
50 Item 1, Column 2 contains the four criteria set out at the beginning of these reasons, which are central to this case and to which I will return.
51 The parties agreed that the term “commercial advertising”, which is used in both Item 1 and Item 2, refers to all advertising other than advertising for standard telephone services.
52 Item 2 relates to “[p]ublic payphone instruments”. While criteria (a), (b) and (c) are identical in Item 1 and Item 2, criterion (d) is not. In Item 2, criterion (d) refers to a public payphone instrument “not used to display commercial advertising other than advertising related to the supply of standard telephone services or displayed as part of the supply of a content service” (emphasis added). Those italicised words, which do not appear in Item 1, were added by the Telecommunications (Low-impact Facilities) Determination 1997 (Amendment No. 1 of 1999) (Cth), for these reasons, set out in the Explanatory Statement:
Current arrangements do not permit the installation of public payphones as low-impact facilities if the payphone displays advertising other than advertising related to the supply of the standard telephone service.
However, technological change and customer demand will require payphones to contain, for example, interactive multimedia payphone instruments. In order to be able to supply such services, carriers will need to secure the involvement of commercial organisations, which will require commercial advertising on display screens or on the public payphone instrument.
This amendment enables carriers to advertise on a discreet screen or static display located on the payphone instrument. Advertising of this nature must not be used for general advertising purposes and must specifically relate to the content service of the commercial organisation.
Further, it is not considered appropriate that carriers be permitted to advertise on the actual payphone booth and therefore item 1 (d) of Part 5 [Part 6 in the current Determination] remains unamended. Advertising on the payphone cabinet is highly visible and would require local government approval.
53 Telstra relied on that extract from the Explanatory Statement, and in particular the last paragraph of it, in support of the proposition that the purpose of the prohibition on the display of commercial advertising on payphone cabinets “is to ensure that carriers do not rely on the powers and immunities conferred by Schedule 3 to display commercial advertising without first seeking relevant State regulatory and planning approval”. Telstra says “[t]hat is the mischief to which the prohibition is directed”. Telstra’s written submission continued:
Putting to one side the subjective intentions of the Minister (which have not been proved by any Respondent), it is more probable that the mischief to which the prohibition is directed is the display of commercial advertising in the absence of approval under State planning law [than the display of commercial advertising generally]. It is apparent that the definitional requirements readily contemplate, and permit, the display of advertising on a payphone cabinet. Advertising, in and of itself, is not a mischief that is sought to be addressed by the definitional requirements. The mischief lies in the nature of the advertising as being commercial in its nature (noting that STS advertising may, depending on its content, be commercial in its nature). On Telstra’s construction, that mischief is addressed by the need to obtain planning approval in accordance with State planning requirements, the process of which will require consideration to be given to the planning merits of displaying commercial advertising on a New Payphone Cabinet. In this way, Telstra’s construction readily addresses the mischief to which the prohibition is directed.
54 The Councils say, to the contrary, that the mischief sought to be addressed is commercial advertising (other than STS advertising) simpliciter.
55 I will return to those competing submissions later.
56 The Telecommunications Act does not define the expression “carriage and content services”, but separately defines “carriage service” and “content service”. The parties accepted that those definitions apply to criterion (a) so as to mean “used solely for a carriage service (or services) and/or used solely for a content service (or services)”.
57 Section 7 of the Telecommunications Act defines “carriage service” and “content service” as follows:
carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
…
carry includes transmit, switch and receive.
…
communications includes any communication:
(a) whether between persons and persons, things and things or persons and things; and
(b) whether in the form of speech, music or other sounds; and
(c) whether in the form of data; and
(d) whether in the form of text; and
(e) whether in the form of visual images (animated or otherwise); and
(f) whether in the form of signals; and
(g) whether in any other form; and
(h) whether in any combination of forms.
content service has the meaning given by section 15.
58 Section 15 of the Telecommunications Act defines a “content service” as:
(a) a broadcasting service; or
(b) an on-line information service (for example, a dial-up information service); or
(c) an on-line entertainment service (for example, a video-on-demand service or an interactive computer game service); or
(d) any other on-line service (for example, an education service provided by a State or Territory government); or
(e) …
59 “On-line service” is not defined in the Telecommunications Act, because as the Explanatory Memorandum to the Telecommunications Bill 1996 (Cth) explained:
On-line services are an emerging industry, with new types of services being developed on a daily basis. It is not proposed to specify a detailed definition which may have the unintended consequence of not applying to new services as they emerge. Instead, it is proposed to rely on the general concept of an ‘online service’ as it is understood within the telecommunications industry.
Other relevant provisions
60 Carriers also have the power to maintain a facility. Section 7 of the Telecommunications Act defines “facility” to mean “(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”.
61 Clause 7 of Schedule 3 to the Telecommunications Act is headed “Maintenance of facilities”, and relevantly provides:
(1) A carrier may, at any time, maintain a facility.
(2) A carrier may do anything necessary or desirable for the purpose of exercising powers under subclause (1), including (but not limited to):
(a) entering on, and occupying, land; and
(b) removing, or erecting a gate in, any fence.
(3) A reference in this clause to the maintenance of a facility (the original facility) includes a reference to:
(a) the alteration, removal or repair of the original facility; and
(b) the provisioning of the original facility with material or with information (whether in electronic form or otherwise); and
(c) ensuring the proper functioning of the original facility; and
(d) the replacement of the whole or a part of the original facility in its original location, where the conditions specified in subclause (5) are satisfied; and
(e) the installation of an additional facility in the same location as the original facility, where the conditions specified in subclause (6) are satisfied; and
(f) in a case where any tree, undergrowth or vegetation obstructs, or is likely to obstruct, the operation of the original facility—the cutting down or lopping of the tree, or the clearing or removal of the undergrowth or vegetation, as the case requires.
…
(5) For the purposes of paragraph (3)(d), the following conditions are specified:
…
(c) in a case where the facility is not a tower:
(i) the volume of the replacement facility does not exceed the volume of the original facility …
62 Clause 10 of Schedule 3 to the Telecommunications Act is headed “Management of activities” and provides that a carrier must, in carrying out any activity covered by Division 2, 3 or 4 of that Part of the Schedule (including, relevantly, installing and maintaining facilities), “take all reasonable steps: (a) to act in accordance with good engineering practice … (b) to protect the safety of persons and property … (c) to ensure that the activity interferes as little as practicable with … the operations of a public utility … public roads and paths … the movement of traffic … and … the use of land; and (d) to protect the environment”.
63 Clause 15 of Schedule 3 empowers the Minister, by legislative instrument, to make a Code of Practice setting out conditions that are to be complied with by carriers in relation to activities covered by Division 2, 3 or 4. The Telecommunications Code of Practice 2018 (Cth), among other things, provides that a carrier must notify owners and occupiers about low-impact facility activities and that owners or occupiers have an opportunity to object to the activity.
The exclusion of State town planning laws
64 Section 51(v) of the Constitution confers power on the Commonwealth Parliament to make laws with respect to postal, telegraphic, telephonic and other like services. That includes a power to make laws with respect to telecommunications services, and “extends to making laws regulating the terms and conditions upon which such services may be provided, the licensing of carriers, their conduct as licensees, and the conferring upon them of powers and immunities in connection with the activities undertaken by them pursuant to the chosen regulatory framework”: Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595, 624 [26] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).
65 Part 1, Division 7 of Schedule 3 to the Telecommunications Act is headed “Exemptions from State and Territory laws”. Within that Division, cl 36 provides:
36 Activities not generally exempt from State and Territory laws
(1) Divisions 2, 3 and 4 do not operate so as to authorise an activity to the extent that the carrying out of the activity would be inconsistent with the provisions of a law of a State or Territory.
(2) The rule set out in subclause (1) has effect subject to any exemptions that are applicable under clause 37.
66 Clause 37 is headed “Exemption from State and Territory laws”. It applies to an “activity” engaged in by carriers, like Telstra, if the “activity is authorised by Division 2, 3 or 4”. The installation of a low-impact facility is an activity authorised by Division 3. Clause 37(2) provides: “The carrier may engage in the activity despite a law of a State or Territory about … (c) town planning … (d) the planning, design, siting, construction, alteration or removal of a structure … (e) the powers and functions of a local government body; or (f) the use of land …”
Construing the Determination
67 The parties agreed that the Determination “is addressed to practical people [here, councils and planners] skilled in [a] particular trade or industry … So [it] ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of [its] various provisions, such as might be appropriate in construing sections of an Act of Parliament”: Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929, 933-934; [1963] 3 All ER 180, 183 (Lord Reid). See too DBB16 v Minister for Immigration and Border Protection (2018) 260 FCR 447, 468 [94] (Perram, Wigney and Lee JJ): “…it is well-accepted that certain kinds of regulation are addressed to practical people skilled in particular trades or industries and are construed in that practical light”.
68 As is obvious, however, the parties disagree about the outcome of the application of that approach in this case.
jurisdiction
69 All parties contended that in deciding “[t]he proposed payphone and electronic promotional sign[s] [were] not … ‘low-impact facilit[ies]’ as described in the [Determination]” and were therefore subject to the Melbourne Planning Scheme, the MCC was taking an administrative step: namely, the forming of an opinion in the making of an administrative decision under the Planning and Environment Act 1987 (Vic) regarding planning permit applications.
70 The issue whether a determination by a non-curial body involved the exercise of judicial power arose in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352. In that case, the appellant authority had found that the respondent radio licensee had breached a condition of its licence by the commission of an offence under NSW legislation prohibiting a person from publishing a private conversation that had come to the person’s knowledge as a result of the use of a listening device. A Full Court of the Federal Court held that the relevant legislation did not confer upon the Authority a power to make an administrative determination or finding of the commission of a criminal offence. The High Court unanimously allowed the authority’s appeal against that finding. As Gageler J explained at 380 [64] and 386-387 [80]-[81]:
64. This Court has repeatedly held that a power of inquiry and determination takes its legal character from the purpose for which it is undertaken, and that a power of inquiry and determination undertaken for a non-curial purpose (be it arbitral, administrative, executive or legislative) can encompass formation and expression of an opinion about an existing legal right or obligation [citing Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656, 666; Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 189-190; Albarran v Companies Auditors and Liquidators Disciplinary Board (2007) 231 CLR 350, 361 [28]; Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542, 573-574 [82], 576 [90], 578-579 [96], 594-595 [160], 598 [171]] …
…
80. The Authority would need to satisfy itself that there was or had been conduct constituting the commission of an offence … as an element of satisfying itself that it had power to cancel or suspend the licence … That is because the fact of breach of a licence condition is … a ‘jurisdictional fact’ in the sense that it is a fact which must exist as a precondition to the valid exercise of the discretion of the Authority to cancel or suspend a licence [citing Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, 64 [39]-[40]]. But the Authority’s own view that there was or had been conduct constituting the commission of an offence … would have no operative legal effect. The objective existence of that fact could be conclusively determined for legal purposes only by a decision of a court. Were the validity of the Authority’s purported cancellation or suspension of a licence … to be the subject of judicial review, it would thereafter be for the Ch III court undertaking that review to be satisfied for itself whether or not the licence condition had been breached.
81. The applicant for judicial review would ordinarily have the burden of proving that the licence condition had not been breached in order to establish invalidity on the ground that the factual precondition to the exercise of the power conferred on the Authority … did not exist. The gravamen of the constitutional argument as presented orally on behalf of Today FM in this Court was to focus on that ordinary forensic burden. The argument was that it would operate to render the Authority’s own view that the licence condition had been breached close to conclusive in practice. It would not. The Authority’s own view would remain just that; it would bind no one and conclude nothing [citing R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 376, 399]. The constitutional character of the Authority’s cancellation or suspension of the licence would remain that of administrative action.
71 It follows from those passages that, as the parties agreed, no issue arises as to whether the MCC was (impermissibly) exercising judicial power.
72 The parties also agreed that a justiciable controversy (whether the New Payphone Cabinets are low-impact facilities and therefore may be installed without council planning permission) arises under a law made by the Commonwealth Parliament (Schedule 3 to the Telecommunications Act). I accept that proposition.
73 It follows that this court has jurisdiction to determine that controversy pursuant to s 39B(1A)(c) of the Judiciary Act 1903 (Cth), and may make binding declarations of right under s 21 of the Federal Court Act 1976 (Cth).
The parties’ submissions
Are they cabinets?
74 Before turning to the parties’ submissions in respect of the four Schedule 3 criteria, I should first deal with the MCC’s submission in relation to the short chapeau that precedes those criteria (namely, “[p]ublic payphone cabinet or booth”). The MCC’s submission regarding that phrase, which the other respondents were reluctant to embrace, was that the New Payphone Cabinets are not “public payphone cabinets or booths” within the meaning of the Determination because they are not sufficiently enclosed and because the size of the structures “has nothing to do with the asserted status of the structure as a cabinet for a public payphone … [and] everything to do with the intended use to display advertising”. (The phrase “Public payphone cabinet or booth” is not defined in the Determination or in the Act.)
75 The MCC’s submission in that regard was as follows:
The specific purpose of a ‘public payphone cabinet’ is to provide a structure in a public place that houses a payphone instrument on which members of the public can make telephone calls. It is not the purpose of a public payphone cabinet to act as an electronic billboard.
It is apparent from the evidence that Telstra and [JCDecaux] are seeking to take advantage of Part 6 of the Determination to install structures that act as electronic billboards for third-party commercial advertising, in ideal revenue-generating locations throughout Australia’s capital cities (and other population centres), and by doing so, avoid the need to comply with State town planning laws, or obtain landowner consent.
The means by which Telstra is seeking to engineer that outcome is by attaching a payphone instrument to one side of a panel structure, and calling it a ‘public payphone cabinet’.
76 The MCC next invoked the Macquarie Dictionary definitions of “cabinet” including “a piece of furniture with shelves, drawers, etc., for holding or displaying valuable objects, dishes”; “a piece of furniture holding a record-player, radio, television, or the like”; and “a case with compartments for precious objects, etc.”.
77 The following definitions from the Shorter Oxford English Dictionary were also cited: “A secret receptacle, a repository”; “[a] case or cupboard with drawers, shelves, etc., for storing or displaying objects”; “[a] small chamber; a private room”; “[a] small cabin; a tent; a rustic lodging; an animal’s den”.
78 The MCC submitted that “[w]hat can be taken from those definitions is a common sense of enclosure and privacy. Applied to a payphone cabinet, the defining feature of a payphone cabinet should be a private enclosure from which a member of the public can make telephone calls using a public payphone instrument”.
79 I reject that submission.
80 The Determination must be taken to have had in mind at least the range of payphone cabinets or booths in existence at the time the Determination was first made (1997), not the almost entirely inapposite dictionary definitions of the word “cabinet” relied upon by MCC (like “a case or cupboard with drawers, shelves, etc.”). As can be seen from Annexure A to these reasons, the extent of enclosure provided by older style cabinets is similar to that provided by the New Payphone Cabinets. (Telstra submitted, and I take the Councils to accept, that the word “cabinet” better describes the type of structure at issue in this proceeding, rather than the alternative, “booth”.)
81 I am therefore satisfied that the New Payphone Cabinets the subject of the 81 applications, depicted at [1] above, are “public payphone cabinets” within the meaning of the Determination.
The parties’ submissions about criteria (a)-(d)
82 Telstra submits that the New Payphone Cabinets satisfy each of the definitional requirements of a low-impact facility because:
(a) they are used solely for carriage services and/or content services;
(b) they are not designed for uses other than carriage services and/or content services;
(c) they are not fitted with devices or facilities for uses other than carriage services and/or content services; and
(d) at the time of installation, they are not used to display commercial advertising.
83 Those italicised words do not appear in the Determination. Telstra submits that they should be read into it.
84 Telstra further submits that the fact the New Payphone Cabinets may display commercial advertising at some point after installation does not alter their nature as lowimpact facilities because:
(1) the requirement that a low-impact facility not display commercial advertising is intended to ensure that a carrier does not rely on its power to install to support the display of commercial advertising in the absence of approval being provided under State town planning laws;
(2) the display of commercial advertising satisfies the definition of either a carriage service or a content service, and the use of a New Payphone Cabinet to display commercial advertising can properly be said to involve the continuing use of it for a carriage service or a content service; and
(3) the fact that Telstra intends or wishes to display commercial advertising is not relevant to, and does not cause Telstra to transgress, the requirement that a low-impact facility not display commercial advertising.
85 Telstra also seeks to draw a distinction between its right as a carrier to “install” New Payphone Cabinets on the one hand, and its right to “maintain” them on the other.
86 Telstra says that this distinction follows from: (i) the nature of the power conferred by cl 6(1)(b) of Schedule 3, “that being a power only to install (being the power, and only power, to which the concept of a low-impact facility applies”; and (ii) the fact that the Telecommunications Act “does not confine the power [of] a carrier to maintain a facility to a low-impact facility, or make provision for any further step in relation to a low-impact facility following its installation”. The submission was developed in writing in these terms:
On the proper construction of the Determination, the definitional requirements of a ‘lowimpact’ payphone cabinet or booth are drawn by reference to the design and physical characteristics of the payphone cabinet and its actual use at the time of its installation. In this respect, it must be observed that the power conferred by clause 6 of Schedule 3 of the Telecommunications Act is a power to install, and the definitional requirements in the Determination must only be met in order to support the exercise of a power of that kind. The Determination does not require a facility to continue to operate or to continue to be used as a low-impact facility in order to meet the definition of a “low-impact facility”.
The definitional requirements apply to installation and, Telstra submits, it is sufficient to satisfy the requirements of Schedule 3 and the Determination if it can be said that a New Payphone Cabinet is a low-impact facility at the time of installation.
(Emphasis in original.)
87 Telstra says that because it has the right under “Division 4 – Maintenance of Facilities” (being Part 1, Division 4 of Schedule 3 to the Telecommunications Act) to replace “the whole or a part of the original facility in its original location”, provided that the “replacement facility” does not exceed the volume of the “original facility”, where there is an existing public payphone on a site, “then Telstra can replace that with a new public payphone cabinet with commercial advertising without the need to get a permit, because this would be an act of maintenance, not an act of installation …”
88 Telstra submits that both criterion (a) and criterion (d) require an assessment of use at some point in time, which is in both instances immediately after installation. Criterion (b) and (c), on the other hand, are, it was submitted, directed to the future. Mr SR Morris QC, who appeared with Mr R Chaile for Telstra, put it this way in the course of his closing oral submissions:
So there is no question that paragraphs (b) and (c) are directed at the future. I agree with that. And the reason (b) and (c) are there is because of our interpretation of (a). You see, our interpretation of (a) requires (b) and (c) to be there, so that there is a focus not just on how the public payphone cabinet is used immediately after installation, but also there is a focus on the design of the facility, and how it’s fitted out, so as to address what might happen in the future. You see, if Melbourne’s argument is correct, and if (a) has ongoing operation – if that’s correct – you don’t need (b) and (c).
See, let’s suppose (a) were to be read ‘Public payphone cabinet or booth used solely for carriage and content services whilst the facility is operational’ – let’s assume it said that. Well, then – doesn’t matter whether or not it’s designed for other uses, or fitted with devices or facilities for other uses. None of those things matter, because, on Melbourne’s interpretation, you wouldn’t be able to use it for other than carriage and content services while it’s in operation.
You see, (b) and (c) are there to supplement what (a) doesn’t do. And thus you can see that our interpretation of the four elements are perfectly harmonious, in that our interpretation is the only one that gives all four elements work to do. (a) and (d) have work to do, and to the extent that they might be thought to be deficient in not dealing with the future, (b) and (c) then kick in to deal with the future. And importantly, all of them deal with the matter by reference to a point in time which is the time of installation, or immediately afterwards. That’s the time you make the assessment about the design for other uses.
That’s the time when you make the assessment about whether it’s fitted with devices or facilities for other uses. And by making that assessment at the time of the installation of the facility, (b) and (c) are concerned with the future, and are concerned to ensure that there is not a circumstance where there is a bypassing of the other provisions.
89 The Councils say that Telstra’s contentions must be rejected.
90 First, they submit that a natural reading of the text in Item 1 of Part 6, supported by the statutory context, supports a construction that it is the uses to which the structures will be put after installation, and for which the structure was designed, that are relevant to whether the structures are low-impact facilities.
91 Second, they submit that the New Payphone Cabinets are not capable of being “used” at all until after installation has been completed and the power has been connected. The Councils contend in that regard as follows:
Essentially, installation of the New Payphone Cabinets will stop at the point that they are ready to be ‘powered up’. However, at that point in time, they are not being ‘used’ and are not capable of being ‘used’ for anything. It is not until electricity flows to the structure that they can be ‘used’. But at that point in time they are in operation, and the installation authorisation given by clause 6(1) has ceased to apply. It follows that the construction proposed by Telstra, as a matter of text, context, logic and evidence, is simply not supportable.
(Emphasis in original.)
92 The Councils submit that on the proper construction of the text of the Determination, it is the uses for which the 81 New Payphone Cabinets (or any of their components) are designed, and to which they will be put after installation is completed, that are relevant to determining whether the New Payphone Cabinets meet the four definitional criteria.
93 In his opening, Mr CM Caleo QC, who appeared with Mr J Wright for the MCC, submitted (by reference to the MCC’s decision to refuse planning permission):
The reasons why it is not a low-impact facility include, and, indeed included [as] their most important reason, the fact that it is plain that the facility is to be used for the display of third-party commercial advertising …
The fact that it is openly stated that it is to be used for that third-party commercial advertising is the driver for its components and is why, we contend, it also fails to comply with the other definitional requirements. So the third-party advertising element is at the heart of the dispute between the parties.
94 Consistently with that submission, the MCC’s written closing submissions repeatedly put its case about the proper construction of the Determination as one that turns on Telstra’s stated intention to display commercial advertising, including as follows:
“the key functional difference between the old-style cabinets and the New Payphone Cabinets, is the fact that the New Payphone Cabinets can, and will, be used to display commercial advertising on large electronic screens”;
“[t]he central purpose of the 75” screen is to provide an electronic billboard for third-party commercial advertising, and they are designed for that purpose”;
“[i]t is apparent from the evidence that Telstra … [is] seeking to take advantage of Part 6 of the Determination to install structures that act as electronic billboards for third-party commercial advertising”;
“[i]f, as a matter of present fact at the time of installation, it is known that the New Payphone Cabinets will be used for a purpose other than ‘for carriage and content services’, including that it will be used to display third-party commercial advertising, Telstra is not able to rely on clause 6(1) of Schedule 3 to carry out the installation of the structure”;
“[a]s a matter of undisputed fact, the New Payphone Cabinets will be used for the display of third-party commercial advertising after they are installed”;
“[t]he display of commercial advertising on the 75” screens is not itself a carriage service, and is not a use ‘for’ a carriage service”; and
“[t]he Minister’s intention for sub-paragraph (d) is clear. It is not permissible to install a public payphone cabinet or booth pursuant to item 1 of Part 6, and clause 6(1) of Schedule 3, if the cabinet or booth will be ‘used to display commercial advertising other than advertising related to the supply of a standard telephone service’”.
95 The MCC concedes that each component of the New Payphone Cabinet, other than the USB charger, is designed for and can be used for either a carriage service or a content service. Specifically, it agrees that:
provision of a payphone instrument is a use “for” a carriage service;
provision of a Wi-Fi internet connection is a use “for” a carriage service and/or a content service;
the STS related advertising use is a use “for” carriage and content services, or alternatively, is an additional permitted use for a low-impact public payphone cabinet or booth by reason of sub-paragraph (d); and
the NFC connection use is a use “for” a carriage service and/or a content service.
96 It submits, however, that:
the USB charger use is not a use “for” either a carriage or a content service;
the display of third-party commercial advertising is not a use “for” either a carriage or a content service, and is expressly prohibited by sub-paragraph (d); and
because it is intended that the New Payphone Cabinets will thus be used for uses other than “carriage and content services” after installation, they do not satisfy the requirement in sub-paragraph (a).
97 The City of Sydney Council and the Brisbane City Council contend, along the same lines, that the definitional requirements must be satisfied not only at the time of installation but also with respect to the uses to which the cabinets either may be put in the future (based on their objective design) or will be put in the future (based on Telstra’s intentions).
Criterion (a)
98 Telstra submits that the breadth of the definition of “carriage service”, which includes any service for carrying communications by means of guided or unguided electromagnetic energy, covers every use to which the New Payphone Cabinets may be put, including commercial advertising.
99 Telstra relied on these passages from Foxtel Management Pty Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 555, 575-576 [30]-[32] (Beaumont, Moore and Gyles JJ):
‘Carriage service’ is defined as a service for carrying communications by the means specified in the definition. The definition of ‘communications’ is at a high level of abstraction and is not directed to the content of the communication. Rather, it concerns who the parties are to the communication and the form in which the content is transmitted to the recipient. The definition of ‘carriage service’ focuses on the service which provides communication in a particular form apart from both the content of the communication and the underlying equipment or infrastructure by which the communication occurs. The only aspect of the definition of ‘carriage service’ that bears upon the type of equipment or infrastructure involved is that it must be capable of carrying guided and/or unguided electromagnetic energy.
It is provided by s 87 that a person is a ‘carriage service provider’ (inter alia) if the person supplies a listed carriage service to the public using a network unit owned by one or more carriers. Network units are dealt with in Pt 2 of the [Telecommunications Act] which makes clear that the network unit relates to the facility or infrastructure which carries the communication. This confirms the fact that a carriage service is something separate from, but which uses, the facility or infrastructure. A ‘carriage service’ means a service for carrying communications by means of guided and/or unguided electromagnetic energy which is distinct from the network unit which is utilised for the purpose …
In our opinion, it follows that service in the relevant sense includes the commercial arrangements by which the service provider can use the network unit and the commercial arrangements by which the service is provided to and received by the customer. The access, which is the end point of the legislative chain, needs to be to a ‘service’ which reaches the customer. The three functions of carrier, carriage service provider and content service provider are different, but in any one case the one party may carry on one or more of these three functions.
100 Telstra also submits that the commercial advertising, which is to be delivered to the LCD screens through fixed and mobile network connections, falls within the meaning of “content service” because it is sufficient to fall within that definition that the facility be used for an on-line information service or entertainment service, or any other on-line service.
101 Telstra concedes that the USB chargers in the payphone cabinets cannot be used for a carriage service or a content service, but says that they are, as the MCC’s expert witness Mr Gardner agreed in cross-examination, a trifling element which, by operation of s 3.1(3) of the Determination (“trivial variations for a facility mentioned in column 2 are to be disregarded”), are to be put to one side.
102 Telstra says, therefore, that the uses to which the New Payphone Cabinets will be put, or in the case of commercial advertising, may be put if planning permission is given, will involve either the provision of a carriage service or a content service within the meaning of criterion (a).
103 Despite Mr Gardner’s concession that it is trivial, and thus must be disregarded, the MCC insists that the USB charger use is not a use for either a carriage or content service and says, in addition, that the display of third-party commercial advertising is not a use for either a carriage or content service and “is expressly prohibited” by criterion (d).
104 The Councils also point to the requirement in cl 6 of Schedule 3 to the Telecommunications Act that the installation of a low-impact facility must be “for purposes connected with the supply of a carriage service” (see [40] above). They say that using 75” screens for the display of third-party commercial advertising is not a purpose “in connection with the supply of a carriage service”. The true purpose, they contend, is “commercial gain” and the “commercialisation” of Telstra assets, including by maximising advertising revenue through use of the 75” screens. The MCC’s written submission in that regard relied on the following (undisputed) evidence:
In order to carry out the replacement program, Telstra has ‘partnered’ with JCDecaux Australia (JCD). JCD is the ‘number one outdoor advertising company worldwide’ that will use the rollout of the New Payphone Cabinets to install the largest ‘national digital OOH [Out of Home] offering in Australia’.
Pursuant to a contractual agreement with AdBooth Pty Ltd (a wholly-owned subsidiary of JCD), Telstra has outsourced to JCD:
(a) the design (in conjunction with Telstra) and development of the New Payphone Cabinets;
(b) producing/supplying the New Payphone Cabinets;
(c) obtaining planning permits for the display of commercial advertising on the New Payphone Cabinets;
(d) together with Telstra, selecting locations for the New Payphone Cabinets with regard to advertising value, and in order to provide maximum advertising impact;
(e) installing and maintaining the New Payphone Cabinets;
(f) the production, installation, removal and management of all advertising (including STS-related, or other Telstra, advertising) displayed on the 32” screen; and
(g) all aspects of the sales, production, installation and removal of third-party commercial advertising on the 75” screen.
The central purpose of the 75” screen is to provide an electronic billboard for third-party commercial advertising, and they are designed for that purpose …
In circumstances where Telstra will simply ‘bolt-on’ the same type of payphone instrument that is currently used in the old-style cabinets, the evidence makes it clear that the real purpose of the replacement program is the ‘commercialisation’ of Telstra assets.
105 The Councils submit that the display of commercial advertising on the 75” screens is not itself a carriage service, and is not a use “for” a carriage service. They say that the definition of “carriage service” relates to the service which provides the communication, and is not directed to the content of that communication, or the facilities or the infrastructure used to provide that service.
106 The Councils also submit that the display of third-party commercial advertising and the provision of a USB charger are not “content services”. This is said to be the case because neither provides “any form of on-line service at all”, and in any event:
[A]ny interpretation of the definitions of ‘carriage services’ and ‘content services’, as they apply to [criterion] (a), that could capture third-party commercial advertising must be read down such that third-party commercial advertising is excluded from those definitions. This is necessary in order to give the words of [criterion] (d) ‘the meaning that the legislature is taken to have intended them to have’ [citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ)].
(Emphasis in original.)
Criteria (b) and (c)
107 Telstra submits that criterion (a) of the definition is satisfied in relation to the proposed 81 New Payphone Cabinets; and, by reason of paragraph (a) being satisfied, it necessarily follows that criteria (b) and (c) are satisfied, because those paragraphs only deal with uses other than carriage services and other than content services.
108 The Councils submit that the New Payphone Cabinets were “designed” to be used for uses other than “carriage and content services” and they are “fitted with devices or facilities for other uses” because they are designed to display, and will display third-party commercial advertising (which is prohibited by criterion (d)), and they are designed to provide and will provide a USB charger.
109 It is apparent therefore that the issues raised by criteria (b) and (c) are the same as those raised by criterion (a).
Criterion (d)
110 Telstra submits that the purpose of the Determination and cl 6 of Schedule 3 to the Telecommunications Act, “is to enable carriers to roll out a network without local state bureaucracy” which purpose “extends to installing … payphone cabinets”. In relation to criterion (d) specifically, Telstra submits that “the purpose is to ensure that before commercial advertising is shown, there is permission under state law to do so. And the interpretation which we advance responds to that purpose or mischief and ensures that [criterion (d)] has a proper role to achieve that objective”.
111 The MCC submits that the purpose of sub-paragraph (d) is rather “to prohibit carriers from using Part 6 of the Schedule to the Determination to install public payphone cabinets or booths as a low-impact facility and later use those structures to display non-STS related commercial advertising” and that “[a]ny public payphone cabinet or booth that is, or will be, used for that purpose cannot be installed as a low-impact facility.”
112 The MCC submits that “[i]t is not sufficient for Telstra to say that it will not actually display third-party commercial advertising unless and until a planning permit is obtained. If Telstra wants to use a public payphone cabinet for that purpose, the effect of [criterion] (d) is that it cannot rely on clause 6(1) of Schedule 3 to install the structure, but must go through the usual town planning process”.
consideration
113 The Councils’ case, as I have explained above, is founded principally on the proposition that Telstra’s intention to display commercial advertising, if granted planning permission, operates to strip the New Payphone Cabinets of their otherwise proper characterisation as low-impact facilities, even before the consideration of any relevant planning application to display such advertising.
114 The Councils’ case in that regard is, with respect, an improbable one, and it derives no support from the language of the Telecommunications Act or the Determination. To the contrary, the relevant definitional criteria for a low-impact facility that is a public payphone cabinet, which appear under the heading “Facility” in the Determination, are concerned with the function of those facilities, not statements of future, conditional intention. As the High Court said in Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12; (2006) 80 ALJR 711, 727 [85] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) “… the definition of the term ‘facility’ in the [Telecommunications] Act requires that attention be directed, not to the motive for the installation of a structure or thing, but the function which that structure or thing serves or was designed to serve”.
115 The Minister has determined that a public payphone cabinet or booth will be a low-impact facility if it is: (a) used solely for carriage and content services; (b) not designed for uses other than carriage and content services (for example, as a vending machine); (c) not fitted with devices or facilities for uses other than carriage and content services; and (d) not used to display commercial advertising other than advertising related to the supply of standard telephone services. In my view, none of those criteria suggests that the proper characterisation of a public payphone cabinet or booth has anything to do with future intentions of the carrier – rather, they speak to the functions which the cabinet or booth serves or was designed to serve.
116 One of the functions that the 81 New Payphone Cabinets were designed to serve is the display of commercial advertising. (Whether they will, in fact, ever serve that function is another matter, discussed below.) However, I accept Telstra’s submission that advertising is either a content service or a carriage service. For this reason, the fact that the New Payphone Cabinets are designed to display commercial advertising does not mean they fail criterion (b) or (c) in the Determination.
117 However, Telstra’s contention that criterion (d) in the Determination does not require a facility to continue to operate, or to continue to be used, as a low-impact facility after its “installation” derives no support from the language of the Determination.
118 In my view, the fact that cl 6(1) of Schedule 3 to the Telecommunications Act empowers a carrier to “carry out the installation of a facility if … the facility is a low-impact facility” is no basis for reading into criterion (d) in the Determination the words of limitation “at the time of installation”. As senior counsel for the MCC put it in the course of his oral opening:
[Telstra’s first] proposition is that the right or power to carry out the installation of a facility, the power conferred by clause 6 of schedule 3 to the Act is available if a facility is a low-impact facility at the time of its installation. And, of course, subject to the area to which it is installed. And we would agree with it. But Telstra moves impermissibly from that proposition to contend that in respect of the relevant facility here in question, the elements of the definition must themselves be construed and assessed as if confined to the moment of installation.
119 I also accept the Councils’ submission, put by the MCC in its closing submissions, as follows:
Essentially, installation of the New Payphone Cabinets will stop at the point that they are ready to be ‘powered up’. However, at that point in time, they are not being ‘used’ and are not capable of being ‘used’ for anything. It is not until electricity flows to the structure that they can be ‘used’. But at that point in time they are in operation, and the installation authorisation given by clause 6(1) has ceased to apply. It follows that the construction proposed by Telstra, as a matter of text, context, logic and evidence, is simply not supportable.
(Emphasis in original.)
120 Telstra’s submission that the wholesale replacement of one public payphone booth or cabinet with another occupying the same volume may be effected without planning permission because it is an act of “maintenance” must also be rejected. If I may say so with great respect, that submission flies in the face of the ordinary meaning of the verb “to maintain”, viz “to keep in existence or continuance; preserve; retain …”: see Macquarie Dictionary (online at March 2020) “maintain” (def 1).
121 It is true that cl 7(3)(d) of Schedule 3 to the Telecommunications Act says that a reference to the “maintenance” of a facility includes a reference to “the replacement of the whole or a part of the original facility in its original location”, but that is so only where the conditions specified in subclause (5) are satisfied. One such condition that is relevant here is that “the volume of the replacement facility [must] not exceed the volume of the original” (cl 5(c)(i)). Here, the volume of the New Payphone Cabinets far exceeds the volume of all but one of the “old style payphone cabinets” to be replaced (see the measurements listed in Annexure A to these reasons).
122 The Councils make two submissions which do not turn on Telstra’s stated intention to display commercial advertising, namely that:
(1) the New Payphone Cabinets are not “public payphone cabinets” within the meaning of Schedule 3 to the Telecommunications Act; and
(2) the USB charger is not a use for either a carriage or content service within the meaning of criterion (a).
123 But, as I have explained above, the first submission cannot be accepted. And the second is wrong because, as the MCC’s own witness agreed, it is a “trivial variation”. By operation of s 3.1(3) of the Determination it is therefore “to be disregarded”.
124 Once the Councils’ contentions that (i) a New Payphone Cabinet is not a “cabinet”, and (ii) a future intention to display commercial advertising operates to strip the cabinet of its status as a low-impact facility, are rejected (as they must be, in my view), and the presence of the USB charger is understood to be trivial and thus irrelevant to the relevant inquiry, then leaving aside the question whether planning permission is given to display commercial advertising on them, the New Payphone Cabinets satisfy the definitional requirements of a low-impact facility, on the (balance of) the Councils’ own case.
125 In my view, the MCC misconceived its function when it formed the opinion that the New Payphone Cabinets were not low-impact facilities and were therefore subject to the Melbourne Planning Scheme. In that regard I agree with this submission put by senior counsel for Telstra in his closing submission:
[The MCC’s finding that the proposed payphone and electronic promotional signs were not low-impact facilities as described in the Determination and were] therefore subject to the [Melbourne Planning Scheme] can only be a reference to the proposal that will result if a permit is granted. It cannot be a reference to the circumstances that would exist if no permit … were granted. Yet it’s the situation that would exist if no permit were granted that is the critical situation, because that, if you like, sets the base position – and the question then arises whether permission should be given to enable the use of that base position to display commercial advertising. The council has asked itself the wrong question.
126 In my view, Telstra correctly described the effect of the Telecommunications Act and the Determination in its 81 planning applications to the MCC (see [26]-[30] above), to this extent:
(1) Telstra may install a New Payphone Cabinet as a low-impact facility with immunity from state law and the powers and functions of the MCC pursuant to Schedule 3 to the Telecommunications Act;
(2) that statutory right permits the installation and use of a digital screen (as part of the New Payphone Cabinets) for the purposes of the display of STS advertising; and
(3) town planning approval is required to use those digital screens to display third-party commercial advertising.
127 The next step in Telstra’s chain of legal reasoning set forth in its MCC permit applications is the proposition that the “[i]ntroduction of [commercial] advertising content on the [New Payphone Cabinets], after the completion of the compliant exercise of statutory rights under Schedule 3 of the Telecommunications Act … (and subject to town planning approval being procured for a change of content for the existing digital screen), does not invalidate the installation nor affect Telstra’s statutory powers and immunities in respect of the [New Payphone Cabinets]”.
128 In this proceeding, however, Telstra emphasised that it will not and cannot display commercial advertising on any New Payphone Cabinet unless and until it secures planning permission from a relevant local authority to do so, and that “the question whether a New Payphone Cabinet will display commercial advertising is one that can only be answered after completion of the planning approval process”. Further, Telstra submitted that “whether the New Payphone Cabinets will display commercial advertising is a matter that is entirely contingent upon the grant of planning permission by the relevant responsible authority. It may be that no commercial advertising will be displayed on the New Payphone Cabinets if the responsible authority (which, depending on the proposed location of a New Payphone Cabinet, includes the Respondents) determines not to grant planning permission.”
129 The MCC, on the other hand, contends that “[a]s a matter of undisputed fact, the New Payphone Cabinets will be used for the display of third-party commercial advertising after they are installed. This is not a hypothetical future use – and as such the Court does not need to be concerned that it is being asked to answer a hypothetical question”.
130 I am unable to accept that proposition, because whether the New Payphone Cabinets will or will not be permitted to display commercial advertising is in the hands of the relevant local authority.
131 It is not a “matter of undisputed fact” because, as Telstra correctly submits, the relevant question is entirely contingent. It follows that the legal questions whether, if planning permission to display commercial advertising were granted, (i) the New Payphone Cabinets would continue properly to be characterised as low-impact facilities, (ii) installation of any such cabinets would be “invalidated”, or (iii) Telstra’s statutory powers and immunities would be relevantly affected, may never arise.
132 Further, if such planning permission were granted, other fact dependent issues might also then arise, including: (i) whether the local authority which granted such permission might be precluded (by operation of an estoppel, for example) from contending that its own decision to grant permission to display commercial advertising on a New Payphone Cabinet could affect its status as a lawfully installed low-impact facility and so on, and (ii) who else, if anyone, might have standing to agitate such questions.
133 It follows that these issues must await another day, because courts do not grant declarations in relation to circumstances that have not occurred, and might never happen: see, eg, University of New South Wales v Moorhouse (1975) 133 CLR 1, 10 (Gibbs J); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
134 I should lastly say something about the point concerning the “mischief” to which the definitional criteria are said to be directed. As I said earlier, Telstra submitted that their purpose is to ensure that carriers do not rely on the powers and immunities conferred by Schedule 3 to the Telecommunications Act to display commercial advertising without first seeking relevant state regulatory and planning approval. The Councils, on the other hand, submit that the mischief sought to be addressed is commercial advertising, other than STS advertising.
135 It may be accepted that the final paragraph of the extract from the Explanatory Statement to the Telecommunications (Low-impact Facilities) Determination 1997 (Amendment No. 1 of 1999) (Cth) set out at [52] above lends some small support to Telstra’s contention, but to accept the contention would, in effect, be to read into definitional criterion (d) words along the lines of “absent local authority approval”, which I am not prepared to do: compare, by way of example only, Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, 547-549 [35]-[40] (French CJ, Crennan and Bell JJ).
136 My own researches and those of the parties were unable to unearth what lay behind the inclusion of payphone cabinets or booths within the broader ambit of “low-impact” facilities, which include, perhaps more obviously, towers, poles, masts and the like (see, eg, Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12; (2006) 80 ALJR 711), or why the provision in relation to “commercial advertising” was included in the definitional criteria. Absent any sufficient indication of what lay behind it, as at present advised, the identification of some relevant mischief would involve impermissible speculation.
disposition
137 For the reasons I have given, the New Payphone Cabinets, contrary to the (administrative) decision made by the MCC in rejecting each of Telstra’s 81 planning applications, are low-impact facilities within the meaning of the Telecommunications Act and the Determination when the digital screens are used to display STS advertising.
138 I will accordingly grant a declaration in respect of those New Payphone Cabinets as follows:
The installation of New Payphone Cabinets is an activity authorised by Schedule 3 to the Telecommunications Act 1997 (Cth) because it involves the installation of “low-impact facilities” within the meaning of Schedule 3 to the Telecommunications Act 1997 (Cth) and the Telecommunications (Low-impact Facilities) Determination 2018 (Cth).
139 I will also direct the parties to file any submissions on the question of costs, within 7 days.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. |
Associate:
Dated: 10 March 2020
ANNEXURE A
ANNEXURE B
