Federal Court of Australia

State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522

ORDERS

THE COURT ORDERS THAT:

1.    The originating applications filed in QUD 214 of 2020 and QUD 15 of 2021 be dismissed.

2.    The interlocutory application filed 15 February 2021 in QUD 15 of 2021 be dismissed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Before the Court are two originating applications arising from related proceedings (henceforth referred to collectively as the applications) – QUD 214 of 2020 (Boobegan Creek Bridge Proceedings) and QUD 15 of 2021 (Kidd Bridge Proceedings). The applications are in similar form and seek review of decisions made by the Telecommunications Industry Ombudsman (TIO) to:

(a)    reject the objection by the applicant (the State) to an activity proposed to be carried out by the second respondent (Optus) on the Boobegan Creek Bridge and the Kidd Bridge, both of which are owned, operated and managed by the State; and

(b)    determine that the proposed activity to be conducted on each bridge by Optus was a “maintenance activity” within the meaning of cl 7 of Sch 3 to the Telecommunications Act 1997 (Cth) (Telecommunications Act).

2    On 15 February 2021, the State filed an interlocutory application in the Kidd Bridge Proceedings, seeking an order that the relevant decision of the TIO in those proceedings be stayed, and that Optus be restrained from carrying out the proposed activity on the bridge, pending a final determination of the proceedings by this Court. At the hearing on 9 March 2021, Counsel addressed the disposition of the interlocutory application in three parts. First, Optus gave an undertaking not to do the proposed work, namely install the fibre optic cable at Kidd Bridge, until no earlier than the day after the Court delivers its decision in this matter. Second, the State gave an undertaking to pay Optus the Lease Duct payment costs that were being incurred by Optus for the period between 9 March 2021 and the delivery of this decision. Third, the interlocutory application be dismissed.

3    I now turn to the substantive issues in the proceedings.

Background

Boobegan Creek Bridge Proceedings

4    The Boobegan Creek Bridge is located on the Nerang-Broadbeach Road in South-East Queensland. It is owned, operated and managed by the State, through the Department of Transport and Main Roads (the DTMR). I note that in some documents before the Court the bridge is also referred to as the “Dunlop’s Canal Bridge”.

5    By a “Maintenance Access and Activity Notice” (Notice 1) dated 5 March 2020, Optus informed the DTMR that it proposed to carry out what it described as “Maintenance of Facilities, Reference: Schedule 3 of the Act, Division 4, Clause 7” on the bridge (first proposed activity), and that for that purpose it was “necessary to access your property and undertake the following activities during the timeframe specified”. The particulars of the first proposed activity were relevantly described in Notice 1 as follows:

Installation of optic fibre cable within existing Telstra conduit on Nerang Broadbeach Rd, crossing the bridge over Boobegan Creek. Refer Sheet 011 in the attached plans.

6    It is common ground that Optus did not own the conduit attached to the Boobegan Creek Bridge through which it proposed to install the fibre optic cable. Nor did Optus have any pre-existing fibre optic cable or other telecommunications cable in that conduit. Optus had agreed with Telstra, another licensed telecommunications carrier and owner of the conduit, to place a new fibre optic cable in Telstra’s conduit on the bridge. This agreement is evidenced by an email trail including an email from Ms Lina Greco of Telstra InfraCo to Mr Jason Vella of Optus of 27 February 2020, where Ms Greco stated:

Hi Jason

As discussed, confirming that Telstra has granted access to Optus to use the conduit as indicated in the Duct Response, in order for Optus to install and maintain cable within the conduit shown.

If the TIO need further information please feel free to refer them back to me or John Papas.

(Underlining in original.)

7    By an email to Optus on 10 March 2020, the DTMR objected to the first proposed activity in Notice 1 on the following basis:

…

A determination was made by the Telecommunications Industry Ombudsman in relation to the treatment of low-impact facilities as provided for in the Telecommunications Act 1997, related code (Telecommunications Code of Practice 1997) and was issued on 12 November 2015 (TIO Reference 2015/05/09295). This determination provided clarification on the treatment of low-impact telecommunication facilities and sets out obligations on licenced telecommunications carriers (carrier) and the Department. In summary:

1.    TMR acknowledges that underground installation on approaches to bridges is classified as a low-impact facility, this does not extend to installation in conduits on the bridge structure itself.

2.    A bridge by its nature is not "underground", nor could the cavity (conduit) in a man-made bridge structure be regarded as a trench.

3.    Any application from a carrier for which items one and two above apply, cannot be treated as a low-impact facility.

This means that the practice where telecommunication carriers issue a Land Access and Activity Notice or Maintenance Access Activities Notice to the Department's districts to undertake low-impact activities, does not provide them with automatic access to TMR bridges. In essence, as installing telecommunications on bridges is not low impact, the Department does not need to issue an objection. The Department will continue to work with telecommunication carriers in applications to access State-controlled roads (SCRs) including bridges.

Should Optus not acknowledge the determination of the Telecommunications Industry Ombudsman in this matter, this email then construes a formal objection under Chapter 4, Part 5, Division 4, Section 4.30 of the Telecommunications Code of Practice 1997 (the Code). The reason for the objection, as specified under 4.31 of the Code, is the likely effect of the activity on the Dunlop’s Canal Bridge (TMR structure 107).

The Department will assess your Maintenance Access and Activities Notice regarding access to the Dunlop’s Canal Bridge (TMR structure 107) separate to your land Access and Activities Notice for Optus project EO1235078. Approval for access to the bridge will require Optus to enter into a licence agreement, and satisfy all technical and traffic management requirements.

8    The objection was not resolved by Optus, so in an email dated 24 March 2020, the DTMR requested Optus to refer the objection to the TIO under the Telecommunications Code of Practice 2018 (Cth) (Telecommunications Code). On 15 April 2020, Optus referred the objection to the TIO under s 6.35(2) of the Telecommunications Code by compiling and sending to the TIO a “Referral Brief”. Materially at “8.0 Conclusions” of the Referral Brief, Optus stated:

Optus believes the proposed activity involves Maintenance of Facilities for the following reasons:

•    Under the Schedule 3 category of Maintenance that Optus is relying on, Optus can install an "additional facility" in the same location as an "original facility". There is no requirement, express or implied, that the original facility and the additional facility be owned by the same carrier.

•    Clause 7(3)(e) of Schedule 3 permits such installation where certain conditions in Clause 7(6) are met, including that "the additional facility is located inside a duct, pit, hole, tunnel or underground conduit". The installation proposed by Optus satisfies these conditions. A duct as an original facility, and a cable as an additional facility, is exactly the intended application of this clause.

•    Optus has a Facility Access Agreement with Telstra. This contractual agreement, founded in the Act, allows Optus to use the 'original' facility. Under Clause 7(3)(e) there Is no requirement that the 'original' facility and the 'additional' facility be under common ownership.

•    The proposed maintenance activity complies with all relevant requirements of the Code and the Act.

•    The Act in many places encourages co-location of one carrier's new facilities with another carrier's existing facilities.

9    By email dated 11 May 2020, the TIO gave the DTMR an opportunity to provide further information on the likely effect of the first proposed activity on the bridge. On 26 May 2020, the DTMR replied, submitting, in summary, that:

    the first proposed activity could not fall within the scope of “maintenance” within cl 7 of Sch 3 to the Telecommunications Act; and

    the TIO ought determine that the activity proposed in Notice 1 could not be undertaken under Sch 3 of the Act.

Kidd Bridge Proceedings

10    The Kidd Bridge is located on Exhibition Road, Gympie in Queensland. It is owned, operated and managed by the State, through the DTMR. By a Maintenance Access and Activity Notice dated 24 July 2020 (Notice 2), Optus proposed to carry out what it described as “Maintenance of Facilities, Reference: Schedule 3 of the Act, Division 4, Clause 7”, on the bridge (second proposed activity) and for that purpose it was “necessary to access your property and undertake the following activities during the timeframe specified”. The particulars of the second proposed activity were relevantly described in Notice 2 as follows:

Installation of optic fibre cable within existing conduit attached to the Kidd Bridge crossing on Exhibition Rd.

11    Optus did not own the conduit attached to the Kidd Bridge though which it proposed to install the fibre optic cable. Nor did Optus have any pre-existing fibre optic cable or other telecommunications cable in the conduit. In this case the owner of the conduit on the Kidd Bridge was NBN Co, another licensed telecommunications carrier. It is not in dispute that Optus had an agreement to place new fibre optic cable in the NBN Co conduit located on the bridge.

12    By letter to Optus dated 30 July 2020, the DTMR objected to the second proposed activity in Notice 2 on the following basis:

…

From the details supplied on your Notice, it is likely that your proposed installation will affect our operations. We must object to your proposal as it does not minimize detriment and inconvenience to the department’s operation of Kidd Bridge as it will affect future refurbishment and decommissioning of the bridge by increasing the department’s costs and project times. In addition, the existing telecommunications conduit, owned by NBN Co, which Optus proposes to use for the installation of Optus fibre optic cable is cut into brackets supporting a water pipeline (see photos attached, Attachment 1). Replacement of the water pipeline will be made more expensive and inconvenient if the work requires relocation of the telecommunications conduit.

We believe the above grounds fulfil the requirements under the Telecommunications Code of Practice 2018 Chapter 6 Part 5 Division 4 Cl 6.29. For completion, TMR object to the proposed activity for the following reasons under cl. 6.29 (where TMR is the “objector”):

(a)     using the objector’s land to engage in the activity;

(b)    the location of a facility on the objector’s land;

(c)    …

(d)    the likely effect of the activity on the objector’s land;

(e)    the carrier’s proposals to minimize detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.

…

Optus is proposing to install its fibre optic cable through a conduit owned by NBN Co. on the guise of it being ‘maintenance’ under clause 7 of Schedule 3 of the Telecommunications Act. TMR contends that the work cannot properly be considered as a ‘maintenance activity’ and is more correctly characterised as an ‘installation’ activity under clause 6 of Schedule 3.

For the above project we confirm that the works on the bridge is a Non-Low Impact Facility within clause 6 of Schedule 3 and accordingly a Licence Agreement is required between Optus and TMR for the execution and maintenance of the works….

13    By email of 7 August 2020, Optus responded to the DTMR’s objection. Optus asserted that the second proposed activity was a “maintenance activity” under cl 7 of Sch 3 to the Telecommunications Act, and sought further details from the DTMR on the basis of the objection.

14    On 17 August 2020, the DTMR replied by email to Optus’ request for further details, stating that the grounds for objection were threefold:

(a)     The Optus proposal does not minimise detriment and inconvenience to TMR's operation of the bridge as it will affect future refurbishment and decommissioning of the bridge by increasing the department's costs and project times;

(b)     The existing conduit that Optus proposes to use to install the additional fibre optic cable on the bridge is cut into brackets supporting a water pipeline, which would make replacement of the water pipeline more expensive and inconvenient if the work requires relocation of the telecommunications conduit;

(c)     TMR contends that the proposed work is not a 'maintenance activity' under clause 7 of the Telecommunications Act 1997 (Cth), but instead an 'installation activity' under clause 6 of that Act.

(Underlining in original.)

15    By email dated 19 August 2020, Optus refuted these grounds of objection and contended that the second proposed activity was a “maintenance activity” under cl 7 of Sch 3 to the Telecommunications Act.

16    On 27 August 2020, the DTMR advised Optus by email that it maintained its objection and sought referral of the matter to the TIO in accordance with the Telecommunications Code. Optus subsequently referred the objection to the TIO under s 6.35(2) of the Code by compiling and sending to the TIO a “Referral Brief”. Materially at “8.0 Conclusions” of the Referral Brief, Optus stated:

Optus believes the proposed activity involves the Maintenance of Facilities for the following reasons:

•    Under the Schedule 3 category of Maintenance that Optus is relying on, Optus can install an “additional facility” in the same location as an “original facility”. There is no requirement, express or implied, that the original facility and the additional facility be owned by the same carrier.

•    Clause 7(3)(e) of Schedule 3 permits such installation where certain conditions in Clause 7(6) are met, including that “the additional facility is located inside a duct, pit, hole, tunnel or underground conduit”. The installation proposed by Optus satisfies these conditions. A duct as an original facility, and a cable as an additional facility, is exactly the intended application of this clause.

•    Optus has a Facility Access Agreement with NBN. This contractual agreement, found in the Act allows Optus to use the ‘original’ facility. Under Clause 7(3)(e) there is no requirement that the ‘original’ facility and the ‘additional’ facility be under common ownership.

•    The proposed maintenance activity complies with all relevant requirements of the Code and the Act.

•    The Act in many places encourages co-location of one carrier’s new facilities with another carrier’s existing facilities.

decisions of the TIO

Boobegan Creek Bridge Proceedings

17    On 15 June 2020, the TIO made a decision and direction on the DTMR’s objection to the first proposed activity on the Boobegan Creek Bridge. In summary, the TIO concluded that the DTMR had not raised any reasons for objection that required her to make any direction as to how Optus was to engage in the first proposed activity, except for directions as to start and finish dates for the activity.

18    The primary reason for the TIO’s conclusion was that the DTMR did not substantiate its objection to the likely effect of the first proposed activity on its land. In summary, the TIO found that:

    The DTMR had not substantiated an objection to the likely effect of the first proposed activity on its land, as the DTMR had not shown that the activity posed an ongoing risk to the land.

    While the first proposed activity may have temporarily interrupted the DTMR’s operations and may have affected its intended future use of the bridge, the first proposed activity did not pose an ongoing risk to the structural integrity of the bridge, nor the land upon which it rested.

    The concerns expressed by the DTMR could be adequately addressed by Optus complying with its obligations under the Telecommunications Act and the Telecommunications Code. In particular, in carrying out the first proposed activity, Optus must take all reasonable steps to:

(a)    cause as little detriment and inconvenience and do as little damage as practicable;

(b)    act in accordance with good engineering practice;

(c)    protect the safety of persons and property; and

(d)    ensure that the activity interferes as little as practicable with the operations of a utility, public roads and paths, the movement of traffic and the use of land.

19    In Part B of her decision, the TIO concluded that she had jurisdiction to consider the objection. The TIO formed this conclusion as she was satisfied:

    the process undertaken by the parties generally complied with the notification requirements of the Act and the Code; and

    the proposed activity was maintenance under the Act; and

    the objection fell within one of the grounds under s 4.30 of the Code.

20    Relevantly, the TIO found that the first proposed activity was a “maintenance” activity under cl 7 of Sch 3 to the Telecommunications Act. Although the TIO was not satisfied that the first proposed activity was consistent with the ordinary meaning of the word “maintain” (as defined in the Macquarie Dictionary) she was satisfied that the first proposed activity fell within the extended meaning of “maintenance” as referenced in subcl 7(3) of Sch 3 to the Telecommunications Act.

21    Subclause 7(3) materially provides:

(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.

(Emphasis added.)

22    I note at this point that there is some interchange of language among the parties between the terms “conduit” and “duct”. Both in communications between them, and in oral submissions at the hearing, the parties used the words “conduit” and “duct” interchangeably.

23    The TIO found that the first proposed activity was maintenance within the meaning of subcl 7(3)(e) of Sch 3, because:

(1)    The Telstra ducts were the original facility.

(2)    Optus proposed to install additional facilities in the same location as the original facility.

(3)    Optus had shown it had a right to access the original facility.

(4)    The proposed activity met the prescribed conditions.

(5)    The additional facility need not have been a low-impact facility.

24    In particular I note as follows.

(1) The Telstra ducts were the original facility.

25    In forming the conclusion that the existing Telstra duct was the “original facility”, within the meaning of subcl 7(3)(e) of Sch 3 to the Telecommunications Act, the TIO considered the meaning of “facility” and “telecommunications network” as defined in s 7 of the Act.

26    As the TIO observed, s 7 of the Telecommunications Act defines “facility” as:

(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.

27    Additionally, “Telecommunications network” is defined as “a system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy”.

28    In light of these definitions, the TIO held that the Telstra ducts were the “facilities”, because they housed existing telecommunications cabling and appeared to be used in or in connection with a “telecommunications network”.

(2) Optus proposed to install additional facilities in the same location as the original facility.

29    The TIO found that Optus proposed to install additional facilities in the same location as the original facility, as Optus’ proposal involved hauling cable (the “additional facility”) through and entirely inside existing conduit and ducts (the “original facility”). Importantly, no new construction was required to facilitate the first proposed activity. The cable was found to constitute a “facility” within the meaning of s 7 of the Telecommunications Act, and it formed part of a “telecommunications network” capable of carrying communications by means of guided and/or unguided electromagnetic energy.

(3) Optus had shown it had a right to access the original facility

30    In its objection to the first proposed activity, the DTMR contended that the activity was not “maintenance” within the meaning of subcl 7(3)(e) of Sch 3 because Optus did not own the original facility. However, the TIO concluded that Optus had a right to access the original facility, namely the Telstra conduits, as Telstra had granted a right of access to Optus to use the conduits. Accordingly, the TIO held that Optus could conduct the first proposed activity within the confines of the conduits without it constituting a trespass to Telstra, citing Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 200 ALR 308; [2003] NSWCA 179 at [59] (Hurstville).

(4) The proposed activity met the prescribed conditions

31    The prescribed conditions to be satisfied in subcl 7(3)(e) are set out in subcl 7(6) of Sch 3 to the Telecommunications Act. Subclause 7(6) materially provides:

(6)     For the purposes of paragraph (3)(e), the following conditions are specified:

(a)     the combined levels of noise that are likely to result from the operation of the additional facility and the original facility are less than or equal to the levels of noise that resulted from the operation of the original facility;

(b)     either:

(i)    the additional facility is located inside a fully‑enclosed building, the original facility is located inside the building and the building is not modified externally as a result of the installation of the additional facility; or

(ii)    the additional facility is located inside a duct, pit, hole, tunnel or underground conduit;

(c)    such other conditions (if any) as are specified in the regulations.

32    The TIO concluded that the first proposed activity met the prescribed conditions in subcl 7(6), because:

    The combined levels of noise of the original facility and the additional facility would be less than or equal to the noise levels resulting from the original facility.

    The additional facility would be inside a duct. Although the DTMR contended that Optus had not met this condition because the original facility was located within a bridge, meaning it was not underground, the TIO was of the view that there was no requirement for the “duct”, the “additional facility”, or the “original facility” to be underground. This was because the ordinary meaning of “duct” did not limit it to being underground, and the condition was drafted broadly. Further, although “underground” was specified as a qualifier for “conduit”, it did not qualify the term “duct”.

(5) The additional facility need not have been a low-impact facility

33    The DTMR contended that “maintenance” should be interpreted in a way that ensured Optus could not undertake work as “maintenance” (as defined in Div 4 of Sch 3 to the Telecommunications Act), that it would not be able to undertake as an “installation” (Div 3 of Sch 3 to the Telecommunications Act). The DTMR submitted that this interpretation meant that the additional facility must be a “low-impact facility”.

34    The DTMR contended that the additional facility in this case was not a low-impact facility, as installing cable inside the bridge could not be described as installing cable underground or in a trench.

35    It was common ground between the parties that the additional facility was not a low-impact facility. However, as the TIO observed, the wording of subcl 7(3)(e) of Sch 3 to the Telecommunications Act did not require the additional facility to be a low-impact facility.

36    Further, at p 13 of her decision the TIO concluded that subcl 7(3)(e) should not be interpreted in a manner that required the maintenance activity to meet the definition of a low-impact facility. This was because:

•    Subclause 7(3)(e) does not have the effect of allowing Optus to avoid conditions and limitations imposed by performing 'maintenance' when undertaking installation activities. Subclause 7(3)(e) says the activity will only be maintenance if the conditions listed in subclause 7(6) are met. Subclause 7(3)(e) replaces conditions that otherwise apply to installation activities, with those listed in subclause 7(6)

•    The wording used in subclause 7(6) does not require an original facility or an additional facility to also be a low-impact facility. In my view, if the legislature had intended the original or additional facilities to be limited in this way, it would have said so when listing the conditions in subclause 7(6)

•    If subclause 7(3)(e) was to be interpreted in the way the Department suggests, subclause 7(3)(e) would not be necessary at all. Instead, the requirements of Division 3 would apply to the proposed activity.

37    Importantly, at p 14 of her decision, the TIO acknowledged that when assessing jurisdictional facts, she considered “the unique factual circumstances of objections to proposed activities as they are referred to me.” While not bound by her previous decisions, the TIO considered such decisions relevant to her consideration of promoting efficiency within the Australian telecommunications industry and the desirability of promoting outcomes causing the least detriment, inconvenience, and damage overall.

38    By email on 22 June 2020, after the TIO had made her decision, Optus notified the State by email that the first proposed activity was scheduled to commence no earlier than 29 June 2020. The work was completed by 7 July 2020.

Kidd Bridge Proceedings

39    On 11 January 2021, the TIO made a decision and direction on the objection to the second proposed activity in the Kidd Bridge Proceedings. In summary, the TIO concluded that the DTMR had not raised any reasons for objection that required her to make any direction about how Optus was to engage in the second proposed activity, except for directions as to start and finish dates for the activity.

40    The primary reason for the TIO’s conclusion was that the DTMR failed to substantiate its objections to:

    the likely effect of the second proposed activity on the land;

    the location of the facility on the DTMR’s land; and

    Optus’ proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the land.

41    In finding that the DTMR failed to substantiate its objection to the likely effect of the second proposed activity on the land, the TIO distinguished between the effect the activity would have on the land with the effect the activity may have on the land. In summary, the TIO found that:

    The DTMR failed to show that the second proposed activity would cause ongoing detriment to the land.

    The DTMR contended that the second proposed activity would be likely to affect future refurbishment and decommissioning of the bridge, and would be likely to make replacement of the water pipeline on the bridge more expensive and inconvenient. Importantly, however, the DTMR said that it had no immediate plans to refurbish or decommission the bridge, or to replace the water pipeline, but expected the cable to cause inconvenience or extra costs should it need to do so in the future. The TIO was unable to accept this ground of objection based on the possible future impact of the second proposed activity.

42    In finding that the DTMR failed to substantiate its objection to the location of the second proposed activity on the land, the TIO observed, in summary:

    This was a narrow ground of objection in which there were limited circumstances that can be relied upon by an objector. For this objection to be met, the objector was expected to point out an alternative location on its land that the carrier could use.

    The DTMR failed to identify an alternative location on its land for Optus to use for the second proposed activity.

43    In finding that the DTMR failed to substantiate its concerns about Optus’ proposal to minimise detriment, inconvenience, and damage from the second proposed activity, the TIO observed, in summary:

    Under this ground of objection, the DTMR was required to identify a specific concern about detriment, inconvenience, or damage to the land which was not otherwise addressed; however

    Optus had adequately addressed the DTMR’s concerns in its response and through Optus fulfilling its obligations under the Telecommunications Act and the Telecommunications Code.

44    In Part B of her decision, the TIO set out her assessment of the jurisdictional facts and concluded that she had jurisdiction to consider the DTMR’s objection. The TIO formed this conclusion as she was satisfied that:

    the process undertaken by the parties generally complied with the notification requirements of the Telecommunications Act and the Telecommunications Code;

    the proposed activity was maintenance under the Telecommunications Act; and

    the objection fell within one of the grounds under s 4.30 of the Telecommunications Code.

45    The TIO was satisfied that the proposed activity was “maintenance” within the meaning of Div 4 of Sch 3 to the Telecommunications Act, because the proposed activity fell within subcl 7(3)(e) of Sch 3  (namely, “the installation of an additional facility in the same location as the original activity, where the conditions specified in subcl (6) are satisfied”). The TIO so found because:

(1)    the NBN Co duct was the original facility;

(2)    Optus proposed to install additional facilities in the same location as the original facility;

(3)    Optus had a right to access the original facility;

(4)    the proposed activity met the additional conditions in subcl 7(6); and

(5)    the additional facility did not need to be a low-impact facility, nor did it need to be installed by the owner of the original facility.

46    In particular I note the following.

(1) The NBN Co duct was the original facility

47    Interestingly, and unlike in the Boobegan Bridge Proceedings, the TIO specifically addressed the interchange of language in respect of the description of the original facility as “conduit” by Optus and NBN Co. The TIO observed:

Section 7 of the Act defines a “facility” to mean:

 (a)    any part of the infrastructure of a telecommunications network; or

(b)    any line, equipment, apparatus, tower, mast, antennae, tunnel, duct, hole, pit, pole or other structure or things used, or for use, in or in connection with a telecommunications network.

While Optus has described NBN’s facility as a “conduit”, I am satisfied it meets the definition of “duct”. The words “duct”, “pit”, “hole”, “tunnel” and “underground conduit” are not defined in the Act. The words should be given their ordinary meaning, informed by how they are understood in the telecommunications industry.

48    However the TIO then went on to say

I am satisfied NBN’s conduit is a facility (as defined by section 7 of the Act) because it currently houses existing telecommunications cabling, and appears to be used, or for use, in or in connection with a telecommunications network.

(Emphasis added.)

(2) Optus proposed to install additional facilities in the same location as the original facility

49    The TIO noted that Optus’ proposal involved the hauling of cable (the “additional facility”) through and entirely inside existing conduit (the “original facility”) and required no new construction.

50    The TIO was satisfied that the cable constituted a facility within the meaning of s 7 of the Telecommunications Act, as it was part of a telecommunications network capable of carrying communications by means of guided and/or unguided electromagnetic energy.

(3) Optus had a right to access the original facility

51    In respect of this issue the TIO said as follows:

I am satisfied that Optus has a right to access the original facility, being the NBN duct. This is because Optus has provided my office with information showing NBN granted access to Optus to use this conduit. I am satisfied this means Optus can conduct maintenance activity on the conduit without it constituting trespass to NBN.

(4) The proposed activity met the additional conditions required

52    The TIO noted the submission of Optus that the location conditions in subcl 7(6) were satisfied because:

    the DTMR did not dispute that the combined noise levels of both the original facility and the additional facility were less than or equal to the levels of noise resulting from the operation of the original facility; and

    the additional facility was located inside a duct for the purposes of subcl 7(6)(b)(ii).

(5) The additional facility did not need to be a low-impact facility

53    The TIO noted that subcl 7(3)(e) of Sch 3 to the Telecommunications Act did not require the additional facility to be a low-impact facility, and should not be interpreted in a way that required the installation involved in a maintenance activity to meet the definition of low-impact facility.

54    Relevantly, for similar reasons set out in Part B of the TIO’s decision in the Boobegan Creek Bridge Proceedings, the TIO found that the second proposed activity was a “maintenance” activity within the meaning of cl 7 of Sch 3 to the Telecommunications Act.

Applications for review before the court

55    The State filed originating applications for judicial review of the TIO’s decisions in the Boobegan Creek Bridge Proceedings on 10 July 2020 and in the Kidd Bridge Proceedings on 19 January 2021.

56    The originating application in the Boobegan Creek Bridge Proceedings raised three grounds:

1.     The TIO made an error of law for the purposes of s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in wrongly construing clause 7 of Schedule 3 of the Telecommunications Act, such that 'maintenance' included the installation of a new fibre optic cable in a conduit on the Boobegan Bridge, despite such conduit being owned by Telstra.

2.     A breach of the rules of natural justice for the purposes of s 5(1)(a) of the ADJR Act occurred by failing to respond to substantial, clearly articulated arguments, namely the Applicant's submissions dated 26 May 2020 that:

(a)     the TIO's previous determination concerning the Granville Bridge (TIO Reference 2017/04/10488) was the approach that ought be adopted here, namely that the proposed activity was not 'maintenance' under clause 7 of Schedule 3 of the Telecommunications Act;

(b)     Optus was impermissibly attempting to do indirectly under the guise of 'maintenance' for the purposes of clause 7 of Schedule 3, that which it could not directly for the purposes of clause 6 ('Installation of facilities') of Schedule 3 of the Telecommunications Act.

3.     The determination was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made in that it was an exercise of power so unreasonable that no reasonable person could have so exercised the power for the purposes of s 5(1)(e) and 5(2)(g) of the ADJR Act because it failed to treat like cases alike, namely, that concerning the Granville Bridge (TIO Reference 2017/04/10488) and the current case.

57    The originating application in the Kidd Bridge Proceedings raised five grounds:

1.     The TIO made an error of law within s 5(1)(f) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) by misconstruing and misapplying clause 7 of Schedule 3 of the Telecommunications Act, in finding that the Optus proposal to install its fibre optic cable in a conduit on the Kidd Bridge owned by another Carrier, NBN Co, constituted 'maintenance' of Telstra's conduit.

2.     The TIO made an error of law within s 5(1)(f) of the ADJR Act by failing to find that Optus was attempting to do indirectly under the guise of 'maintenance' under clause 7 of Schedule 3, that which it could not directly do through clause 6 ('Installation of facilities') of Schedule 3 of the Telecommunications Act.

3.     The TIO made an error of law within ss 5(1)(e) and 5(2)(g) of the ADJR Act by deciding this matter differently (and without justification) from a relevantly identical proposed activity of Optus concerning the 'Granville Bridge' near Maryborough, when the TIO found that the proposal was not 'maintenance' under clause 7 of Schedule 3 of the Telecommunications Act, should apply.

4.     The TIO made an error of law within s 5(1)(f) of the ADJR Act by deciding the onus was on an objector to show an alternative location for the proposed work, by reference to section 6.29(b) of the Telecommunications Code of Practice 2018, as to the location of a facility on the objector's land.

5.     The TIO made an error of law within s 5(1)(f) of the ADJR Act by finding a failure of Optus to comply with clause 11 of Schedule 3 of the Telecommunications Act, to make 'reasonable efforts' to enter into an agreement with the Applicant, as a 'public utility' under that Act (on the manner in which the proposed work would be done) could not be a basis for objecting to the proposed activity.

Particulars

A.    In an email from the Applicant to Optus dated 17 August 2020, the Applicant submitted that Optus had not taken 'sufficient action to minimise detriment or inconvenience' to TMR's operation of the Kidd Bridge, by not entering into a Licence Agreement offered by the Applicant to Optus, in the objection dated 30 July 2020.

58    The State sought the following orders in respect of both Applications:

1.     An order quashing the decision made by the TIO dated 15 June 2020 [and 11 January 2021]; and

2.     A declaration that the activity proposed by the Optus was not a 'maintenance activity' permitted by clause 7 of Schedule 3 of the Telecommunications Act or otherwise permitted to be carried out by Optus under the Telecommunications Act without the consent of the Applicant; and.

3.    An order remitting the Applicant's objection to the activity proposed by Optus for further determination by the TIO in accordance with law.

Submissions of the parties

59    In summary, the State submitted that:

    The first and second proposed activities did not constitute maintenance, as the phrase “to maintain” means to keep something in repair or in good working order, rather than operating it.

    The proposed work was to be completed within a conduit owned by a carrier other than Optus, and Optus could not have been “maintaining” something owned by someone else. Accordingly, the bare facts did not fit within the scope of maintenance activities.

    There are three permitted activities conferred on any licenced carrier by Sch 3 to the Telecommunications Act. They are:

(i)    power to inspect land for the purpose of determining whether any land is suitable for the carrier’s purpose (cl 5);

(ii)    power to install a telecommunications ‘facility’ (cl 6); and

(iii)    power to maintain a facility (cl 7).

    For each of these powers, a carrier may enter land owned by another on which it has no rights other than under the Telecommunications Act to conduct the activity, after giving notice to the landowner. This is so despite a law of a State or Territory about the aspects listed in subcl 37(2), including the planning design, siting, construction, alteration or removal of a structure, or the use of the land.

    The powers conferred on a carrier under Sch 3 intruded upon the rights of landowners. Without these conferred statutory rights, exercise of the powers would amount to a trespass to land. The powers ought therefore be constructed strictly, and not expansively. Insofar as there was ambiguity in their construction, the interpretation which interfered least with property rights ought be preferred.

    The power conferred on a carrier to maintain a facility under cl 7 must be construed against the legislative background, including, and more specifically, in light of cl 6. Clause 6 permits a carrier to perform the installation of a facility, if:

(i)    the carrier is authorised to do so by a facility installation permit; or

(ii)    the facility is a “low-impact facility” (as defined by subcl 6(3)).

    Subclause 6(3) of Sch 3 to the Telecommunications Act permits the Minister to determine that a specified facility is low-impact. The Telecommunications (Low-impact Facilities) Determination 2018 (Cth) (Low-impact Determination) was made by the then Minister for Communications under this power. Importantly, the Low-impact Determination described a number of telecommunications facilities in the schedule thereto, and the circumstances in which they are regarded as being low-impact. In the present circumstances, the only possible part that is applicable to the Boobegan Creek Bridge and the Kidd Bridge is Pt 5, “Above ground facilities (for fixed-line networks)”. Within that Part, the only circumstances in which a “single drop cable or a bundle of drop cables” would be a low-impact facility is in item number 5. One of the requirements, however, is that it be “part of a national network used, or for use, for the high-speed carriage of communications on a wholesale only and non-discriminatory basis” (in other words, for the national broadband rollout). Neither the first nor the second proposed activity is of that kind.

    Absent a proposed installation being a low-impact facility, the carrier would be required to obtain a “facility installation permit”. To do so, a carrier must apply to the Australian Communications and Media Authority and must follow the provisions in Pt 1, Div 6 of Sch 3 to the Telecommunications Act. Optus did not obtain such a permit.

    Each of the activities identified in subcls 7(2) and (3) would be a trespass, absent consent from the owner of the land or a specific authorisation under cl 7.

    Optus may seek to rely upon subcl 7(3)(e) to justify the first and second proposed activities. The conditions for the exercise of the activity in that subclause are set out in subcl 7(6). The only relevant component of subcl 7(6) is subcl 7(6)(b)(ii), which is that the additional facility be located “inside a duct, pit, hole, tunnel or underground conduit”. Neither the NBN Co conduit over the Kidd Bridge, nor the Telstra conduit over the Boobegan Creek Bridge, were “underground conduits”. They were both above ground. If the argument were that the cable is within a “duct”, the obstacle would be that other associated terms in subcl 7(6)(b)(ii) (“pit, hole, tunnel or underground conduit”) all have the common element of being “underground”.

    The term “duct” is not defined in the Telecommunications Act. It takes a meaning consistent with its associates in the subclause; namely, being underground, with the result that the “duct” must also be underground for an additional facility to qualify for installation under subcl 7(3)(e). Such a construction is consistent with the limitation on installation of overhead cables in the Low-impact Determination.

    In another determination made by the TIO on 24 August 2017 the TIO decided against this approach. That decision was erroneous.

60    In both applications the State referred the Court to judicial consideration of the meaning of “maintenance” in cl 7 of Sch 3 to the Telecommunications Act, in particular the decision of the New South Wales Court of Appeal in Hurstville and the decision of Kunc J in NBN Co Ltd v Pipe Networks Pty Ltd (2015) 295 FLR 256; [2015] NSWSC 475 (Pipe Networks).

61    The State also referred the Court to previous decisions of the TIO, namely:

    a decision made on 23 August 2017 (the Granville Bridge decision);

    a decision made on 30 January 2018 (the Larry Storey Bridge decision); and

    a decision made on 16 February 2018 (the Currumbin Creek Estuary Bridge decision).

62    In summary, Optus submitted that:

    As the State did not assert that the proposed activities were a ‘low-impact facility’ activity, and the proposed activities were plainly not a “temporary defence facility activity”, the only possible basis upon which the State could make an objection that could be dealt with by the TIO was if the proposed activities were a “maintenance activity”.

    The TIO correctly found that the proposed activities were “maintenance”, so as to enliven the TIO’s jurisdiction in respect of the State’s objections. The State’s contentions that the proposed activities were not a “maintenance activity” were incorrect and involved a misconstruction of cl 7 of Sch 3 to the Telecommunications Act.

    The State incorrectly submitted that the words in subcl 7(6)(b)(ii) formed a class or genus that limited the word “duct” to an “underground duct”.

    The decision in Hurstville was of no assistance to the resolution of the issue in either application.

    In relation to the Boobegan Creek Bridge Proceedings the State’s objection had become moot in circumstances where the work was commenced and completed in July 2020.

    In relation to ground 3 of the Kidd Bridge application and the alleged failure by the TIO to treat “like cases alike”, the only relevant question was whether the TIO’s interpretation of the words “maintenance activity” was correct in the present cases.

    The State incorrectly submitted that the TIO erred in law or denied the State natural justice by deciding that the onus was on an objector to show an alternative location for the proposed work by reference to s 6.29(b) of the Telecommunications Code.

    There was no evidence that the State was a “public utility” for the purposes of cl 11 of Sch 3 to the Telecommunications Act.

Consideration

63    Key issues for determination in this case are:

(1)    Whether the proposed activity by Optus in each case was “maintenance” within the meaning of cl 7 of Sch 3 to the Telecommunications Act (ground 1 of Boobegan Creek Bridge Proceedings, grounds 1 and 2 of Kidd Bridge Proceedings).

(2)    Whether the TIO had erred in failing to approach these proceedings in the same way she had approached earlier cases (grounds 2 and 3 of the Boobegan Creek Bridge Proceedings; ground 3 of the Kidd Bridge Proceedings).

(3)    Whether the TIO made an error of law in deciding the onus was on the State to show an alternative location for the proposed work by reference to s 6.29(b) of the Telecommunications Code (ground 4 of the Kidd Bridge Proceedings).

(4)    Whether the TIO made an error of law in respect of the obligation of Optus to comply with cl 11 of Sch 3 to the Telecommunications Act (ground 5 of the Kidd Bridge Proceedings).

(5)    If the TIO was wrong in her decision concerning the Boobegan Creek bridge, whether the proceedings nonetheless had utility notwithstanding that the work on that bridge had been completed.

(6)    If the TIO was wrong in respect of both her decisions in finding that the proposed activities were “maintenance”, whether the TIO had jurisdiction to deal with the State’s objections.

64    The fifth and sixth issues emerged from submissions of the parties at the hearing.

65    It is apparent that if I conclude that the TIO was correct in concluding that the proposed activity by Optus in each case was “maintenance” within the meaning of cl 7 of Sch 3 to the Telecommunications Act, many of the remaining grounds of review and arguments of the State fall away.

66    I now turn to these issues.

Issue (1): Whether the proposed activity by Optus in each case was “maintenance” within the meaning of cl 7 of Sch 3 to the Telecommunications Act (ground 1 of Boobegan Creek Bridge Proceedings; grounds 1 and 2 of Kidd Bridge Proceedings)

67    It is not in dispute that the ducts or conduits of Telstra and NBN Co on the respective bridges were the “original facilities” for the purposes of cl 7 of Sch 3 to the Telecommunications Act (see, for example, transcript p 18, l 25; p 51, ll 4-5). The key points of difference between the parties in relation to the meaning of “maintenance” in subcl 7(3) concern the following sub-issues:

(a)    the applicability of the reasoning of the Court of Appeal in Hurstville in both proceedings;

(b)    whether a carrier which is a “stranger” to original facilities owned by other carriers can be said to “maintain” those original facilities, within the meaning of the Telecommunications Act; and

(c)    whether the original facilities owned by Telstra and NBN Co fell into the category of “duct, pit, hole, tunnel or underground conduit” as identified in subcl 7(6)(b)(ii) of Sch 3.

68    It is appropriate to deal with these sub-issues in turn.

(a) Applicability of the reasoning in Hurstville

69    Although the State also relied on the decision of the Supreme Court of New South Wales in Pipe Networks, Kunc J in that case applied the earlier decision of the Court of Appeal in Hurstville, where the Court addressed in detail the legislation currently before this Court.

70    The facts of Hurstville were summarised in that judgment as follows:

As part of its establishment of a wire-free data communications network, the respondent notified the Council of its intention to establish a "downlink site" in Oatley Park. The respondent proposed that it replace the council-owned light pole illuminating the oval with a new pole of the same height and apparent volume as the original before re-installing the existing lighting equipment. Subject to this taking place, the respondent then proposed to install, maintain and operate a "low-impact facility" consisting of three antennae and a communications dish attached to the pole, an equipment shelter and ancillary infrastructure.

The council opposed this proposed activity and removed the original pole, apparently to frustrate the respondent's endeavours. The respondent claimed authority as a licensed carrier under the Telecommunications Act 1997 to engage in the proposed activities without the Council's consent and began excavating around the footing where the original pole had stood.

The issue on appeal is whether federal law gave the respondent authority to position a "downlink" site in Oatley Park as part of its wire-free data communications network ("3G network"). More specifically, the question is whether the respondent was permitted to remove the existing light pole and replace it with the new pole on the basis that this was the "maintenance" of "a facility" within Sch 3 Pt 1 Div 4 (cl 7) of the Telecommunications Act 1997 (Cth).

71    Relevantly, the respondent in that case, Hutchison, claimed that its activities were “maintenance” within the meaning of Sch 3 to the Telecommunications Act, and served a notice on the appellant in that case, the Council, to that effect. In the notice Hutchison stated, inter alia, that the “maintenance activity” was as follows:

As part of the operation of H3GA's facilities, H3GA proposes to conduct a maintenance activity (and ancillary activities necessary or desirable relating to those maintenance activities) to a pole which has been identified for use in H3GA's telecommunications network after a detailed review of other site options. H3GA proposes to replace the existing light pole at Oatley Park, Oatley Park Avenue, Oatley Park NSW 2223 Lot 13 DP752056 Crown Land (and as further identified in the attached diagrams) ("the land") to ensure proper functioning of its telecommunications facility.

72    The Council submitted that the proposed activities of Hutchison were not “maintenance” within the meaning of the legislation.

73    The leading judgment was delivered by Mason P, with whom Handley and McColl JJA agreed.

74    President Mason referred to the reasoning of the primary Judge, noting the finding of her Honour that:

46    … the original light pole became a "facility" as defined in s7 when the carrier determined that it was "for use" in or in connection with its telecommunications network. This occurred by the time of the Notice at the latest.

75    Further, Mason P noted the primary Judge’s reasons as including:

48    … the existing pole became a "facility" subject to the "maintenance" power conferred by cl 7, when and because the carrier notified its intention to use it as part of its 3G network. It did not matter that the original pole had not been installed by the carrier (pursuant to cl 6 or otherwise) or that the carrier did not own it or have any independent right to possess it or interfere with it. It was sufficient that the carrier notified its intention to use the existing pole, albeit for the limited purpose of "maintenance" by removal and replacement (cf cl 7(3)(a) and (d)). Such intention was manifested in the Notice. It followed, in her Honour's view (at [84]), that "when the Notice was issued the pole became a facility for the purposes of s7 of the Act, the consequence being that the maintenance powers in relation to original facilities under cl 7 of Sch 3 to the Act applied. These powers allow a carrier to remove and replace an original facility, in this case, the pole".

76    Before the Court of Appeal, Hutchison supported the reasoning of the primary Judge, but also advanced a variant of that reasoning, namely that the asserted right of maintenance could rest upon the objective nature of the existing light pole as a structure suitable “for use” in the network, and that it was a necessary part of its argument that the statutory right of “maintenance” could be exercised in relation to a structure or thing that it did not own and over which it had no contractual or other rights. President Mason noted that, during argument, Counsel for Hutchison was pressed with hypothetical examples indicative of the breadth and consequences of Hutchison’s submission, in response to which Counsel for Hutchison submitted that many things could become “facilities” available for “maintenance” including a bridge, a steeple, a building or possibly even a tree. President Mason noted:

53    … If any of these structures or things was already being used to support a facility, even a low-impact facility, or if any of these structures or things was appropriate for such use then, according to the respondent, these structures or things were themselves to be treated as "facilities" capable of appropriation for the type of "maintenance" involved in the present case.

54    The various examples treated a structure or thing on which equipment was erected as thereby becoming part of the network as one of its "facilities".

55    These hypotheticals suggest difficulties with the respondent's position, given that its interpretation of Division 4 included the power to maintain an original "facility" by removal and replacement regardless of its existing linkage with any telecommunications network (let alone the respondent's network) and regardless of whether the respondent had any proprietary or other rights over the "original facility".

77    President Mason at [54] observed that Hutchison’s defensive arguments did not adequately address the difficulties presented by the hypotheticals or the concerns behind them.

78    His Honour noted the definition of “facility” in s 7 of the Telecommunications Act:

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.

79    President Mason referred to Coco v The Queen (1994) 179 CLR 427 at 436; [1994] HCA 15 as authority for the proposition that for a statutory authority to engage in what otherwise would be tortious conduct, such a right must be clearly expressed in unmistakable and unambiguous language in the relevant legislation. His Honour found that cl 7 of Sch 3 did not do this, as regards the core right to “at any time, maintain a facility”. His Honour assumed the correctness of Hutchinson’s broad interpretation of the definition of “facility” as including the structure on which it rested, and concluded:

59    … On that assumption, the right conferred by cl 7(1) has significant and sufficient content in relation to facilities which are already owned by the carrier concerned (cf cl 47) or over which the carrier has existing rights sufficient to ground the right of maintenance of what subcl 7(3) calls the original facility. In other words, cl 7(1) can and in the circumstances should be construed as operating only in situations where the carrier's maintenance of an original facility would not constitute a trespass or other wrong. To construe cl 7(1) as going beyond this necessarily conjures up the vexing hypothetical situations of a carrier descending upon a publicly or privately owned bridge, steeple or other structure and removing it for the purpose of "repair" or "installation of an additional facility" (cf cl 7(3)(e)).

(Emphasis added.)

80    His Honour continued that:

60    Such a gross intrusion upon existing rights is not compelled by the language of cl 7(1) which can readily be construed as introductory to the admittedly more intrusive (but necessarily limited) powers conferred by cl 7(2). The shorthand expression original facility which cl 7(3) adopts reinforces this conclusion. So too does the reference in the Explanatory Memorandum to cl 6 authorising a Council to maintain an existing facility.

(Emphasis in original.)

81    His Honour observed that Hutchison’s approach to cl 7 applied it literally to any and every “facility” falling within the definition of facility in s 7 of the Telecommunications Act. However, his Honour considered that Hutchison’s case was not significantly advanced by this literal approach, because:

(1)    the question whether subcl 7(1) authorised otherwise tortious “maintenance” activities remained; and

(2)    the definition itself was ambiguous, at least in its application to the case before the Court.

82    In relation to the second point, Mason P noted that Hutchison relied on that portion of s 7(b) of the Telecommunications Act which defined facility as meaning any “pole or other structure or thing used, or for use, in or in connection with a telecommunications network”, claiming that those words extended to buildings, poles, steeples or other things, provided they are “used, or for use in or in connection with a telecommunications network”. However, at [67] Mason P considered that a better interpretation of the definition of “facility” in s 7(b) of the Telecommunications Act was that the definition of “facility” should be read down, because:

    schedule 3 elsewhere distinguished between “facilities” and the land or structures to which they were fixed;

    it made, for example, perfect sense to say that the Sydney Harbour Bridge remained a bridge and did not itself become a facility notwithstanding that facilities (low-impact or otherwise) might be installed upon or affixed to it;

    similarly, existing buildings erected as residences could have “facilities” attached to their rooftops; and

    the definition of “facility” could operate to its full literal extent in such situations without turning the bridge or building into part of the facility itself.

83    His Honour observed:

67    Part (b) of the definition [of facility] makes perfect sense if construed as being confined to any line, equipment etc or thing that is purpose built or dedicated by its inherent nature for use in or in connection with a telecommunications network or which is actually used accordingly. It is not necessary to treat an existing (non purpose-built) pole, structure or thing upon which a "facility" is placed as the facility itself.

84    Finally, his Honour noted:

71    If the respondent is correct in its approach about "maintenance", cl 47 vests ownership of the new or replacement pole in the respondent. Yet the respondent says in argument that the Council can have ownership of the new pole, thereby lessening the impact of the appropriation of the old pole had it not been removed by the Council in any event. By what process would ownership pass to the Council despite cl 47? And what if the Council does not want the responsibilities that ownership of the respondent's "facility" (ex hypothesi) would bring? These problems are ultimately peripheral, but they do not assist the respondent's case.

85    Relevantly, cl 47 of Sch 3 to the Telecommunications Act to which the Court of Appeal referred provides:

47 Ownership of facilities

Unless the circumstances indicate otherwise, a facility, or a part of a facility, that is supplied, installed, maintained or operated by a carrier remains the property of its owner:

(a) in any case—whether or not it has become (either in whole or in part), a fixture; and

(b) in the case of a network unit—whether or not a nominated carrier declaration is in force in relation to the network unit.

86    Accordingly, the appeal was allowed.

87    Turning now to the present applications before me, in my view there is nothing in the decision of the Court of Appeal in Hurstville which points to error in the reasoning of the TIO in either the Boobegan Creek Bridge Proceedings or the Kidd Bridge Proceedings.

88    As Mason P explained in Hurstville at [59], subcl 7(1) could, and in those circumstances should, be construed as operating only in situations where the carrier’s maintenance of an original facility would not constitute a trespass or other tortious wrong. I respectfully agree with this finding of his Honour.

89    With this principle firmly in mind, it is clear that the circumstances in Hurstville were entirely different to those before the TIO, and now this Court. In particular I note that the question whether Hutchison in Hurstville had the right to engage in what would otherwise have been tortious conduct was relevant to the Council in that case, because the carrier Hutchison proposed to remove and replace infrastructure owned by the Council (namely, the light pole) without the consent of the Council. It was for this reason that cl 47 of Sch 3 was relevant, as there was ultimately a dispute between the parties over the ownership of the pole, and dealing with it.

90    There is no comparison between the relevant facts in Hurstville, and the facts of the two proceedings here, in that:

    Optus did not propose to remove and replace property owned by a third party (either the State in respect of the bridges, or Telstra/NBN Co in respect of their respective ducts) such that cl 47 was relevant in the present proceedings.

    Optus proposed to install its fibre optic cables into ducts or conduits owned by third parties, namely Telstra and NBN Co, which happened to be attached to the Boobegan Creek Bridge and the Kidd Bridge.

    Unlike the pole in the Hurstville case, there is no argument in this case that the bridges themselves (to which the ducts or conduits were attached) were the relevant “facilities” for the purposes of the Telecommunications Act (transcript p 53, l 8; p 64, ll 13-14).

    There is no dispute that Telstra and NBN Co had rights of ownership in respect of their respective ducts or conduits attached to the two bridges, including rights of maintenance. While Telstra and NBN Co, as the owners of the ducts or conduits, would in turn be required by the Telecommunications Code to notify the landowner (in this case the State) of any intention to engage in, for example, a maintenance activity, it does not appear to be in dispute that Telstra and NBN Co could “put whatever they like[d] through their cables” (transcript p 22, l 37). Presumably this concession extended to the placement of Optus’ fibre optic cables through the Telstra and NBN Co ducts or conduits.

    Unlike in Hurstville, in these proceedings Telstra and NBN Co (the owners of the original facilities) consented to Optus installing its cables in their ducts or conduits.

91    As the Court pointed out in Hurstville, the operation of cl 7 does not extend to something in which the carrier had no prior interest – in Hurstville the original light pole (see also Kunc J in Pipe Networks at [69]). In the present cases before me, the clear analogy to the original light pole in Hurstville are the bridges owned by the State. However there is no argument that Optus sought to conduct any activities in respect of the bridges themselves such as removal and replacement – it is only the conduits or ducts of Telstra and NBN Co attached to the bridges which are affected.

92    None of these complications characterised the litigation in Hurstville, where the Council was the landowner and also the owner of the pole which Hutchison alleged was the relevant “facility”.

93    In my view Hurstville does not stand for the proposition that Telstra or NBN Co could not give permission to Optus to install its fibre optic cables into the ducts or conduits owned by Telstra and NBN Co, notwithstanding that the ducts or conduits were attached to bridges owned by the State. To the extent that there was any potential issue of trespass or other tortious conduct by Optus in respect of inserting cables into, or other action in relation to, the ducts or conduits of Telstra and NBN Co, it appears that the proper complainants could only be Telstra and NBN Co.

94    I agree with Optus that, other than in respect of general statements of principle, Hurstville is of little assistance in the present proceedings.

(b) Whether a carrier which is a “stranger” to original facilities owned by other carriers can be said to “maintain” those original facilities, within the meaning of the Telecommunications Act

95    The State submitted, in summary, that the activities of Optus did not constitute “maintenance” within the meaning of cl 7 of Sch 3 to the Telecommunications Act, because:

    ordinarily “maintenance” means to keep something in repair or in good working order rather than operating it; and

    Optus could not have been “maintaining” something owned by someone else.

96    The Macquarie Dictionary defines “maintenance” as follows:

noun 1. the act of maintaining.

2. the state of being maintained.

3. means of provision for maintaining; means of subsistence.

97    “Maintain” in turn is defined as:

verb (t) 1. to keep in existence or continuance; preserve; retain: to maintain good relations with New Zealand.

2. to keep in due condition, operation, or force; keep unimpaired: to maintain order; maintain public highways.

3. to keep in a specified state, position, etc.

4. to affirm; assert (with a clause, or with an object and infinitive): .

5. to support in speech or argument, as a statement, etc.

6. to keep or hold against attack: to maintain one's ground.

7. to provide with the means of existence.

98    Turning to the introductory subclauses in cl 7 of Sch 3 to the Telecommunications Act, I note the following:

    Subclause 7(1) specifically states that a carrier may, at any time, maintain a facility.

    Subclause 7(2) provides that a carrier may do anything necessary or desirable for the purpose of exercising powers under subcl 7(1), including (but not limited to) entering on land. These powers are broadly expressed.

    Subclause 7(3)(e) defines “maintenance of a facility” as including reference to the installation of an additional facility in the same location as the original facility, where the conditions specified in subcl (6) are satisfied. Subclause 7(6) relevantly defines conditions as being referable to the additional facility being “located inside a duct, pit, hole, tunnel or underground conduit” – I will turn to this issue shortly. In the present cases Optus sought to install additional facilities (namely, fibre optic cable) in the same location as the original facilities (namely the Telstra and NBN Co ducts).

99    On a plain reading, these subclauses appear to support Optus’ contention that installation by it of its fibre optic cables into and through ducts or conduits owned by Telstra and NBN Co satisfies the statutory definition of “maintenance” in subcl 7(3).

100    In respect of “maintenance” the State particularly relied on the observations of Kunc J in Pipe Networks at [96]. In that case NBN Co alleged that Pipe Networks engaged in misleading and deceptive conduct by representing that Sch 3 to the Telecommunications Act empowered Pipe Networks to install certain telecommunications equipment in premises, including by plugging it into a power socket and drawing power from the premises’ power supply without the consent of the owner or occupier of the premises. Justice Kunc found that Pipe Networks was not empowered to install the relevant telecommunications equipment, including by plugging it into a power socket and drawing power from the premises’ power supply without the consent of the owner or occupier.

101    At [63] in discussing preliminary issues, his Honour said:

63    Third, a very significant feature of Schedule 3 for the purposes of its construction is the dedication of separate divisions to inspection of land, installation of facilities and maintenance of facilities. That structure gives those parts of Schedule 3 a logical form which reflects practical realities. The carrier first determines whether particular land is suitable for its purposes, then installs its facilities on the land which it has identified and is then entitled to maintain those facilities once they have been installed. The step between installation and maintenance is the operation of those facilities. The parties agreed that their entitlement to operate facilities as part of a telecommunications network came not from Divisions 2 to 4 of Part 1 of Schedule 3 but rather from their being licensed as carriers under other provisions of the Act.

(Emphasis added.)

102    His Honour continued:

91    Even among these possibilities for the grammatical meaning of “maintain” there is considerable scope for variation. Dictionaries are a starting point but not a substitute for the process of statutory interpretation (Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560 (per Mahoney JA)). To determine which of those meanings is the legal or statutory meaning, being the meaning which gives effect to Parliament’s intention, requires recourse as part of the process of statutory construction to other matters. In this case those matters are the context in which the word appears and the principles in Coco. The particular tension which must be resolved is the extent to which “maintain” includes either or both of notions of the ordinary operation of the facility and keeping it in a state of good repair.

92    The answer to that dilemma is provided by the context to which the Court has referred in paragraph [63] above. Clause 7 appears as the third element of a trilogy consisting of inspection, installation and maintenance. When it is accepted, as the parties did, that the power to operate the Equipment as part of a telecommunications network came from elsewhere in the Act, then the conclusion is clear that in the context in which it appears “maintain” means keeping the facility in good repair. This is captured by the Macquarie Dictionary definition of keeping the facility in “due condition, operation or force” (emphasis added) or the Oxford English Dictionary definition of “to keep (a road, building, etc.) in repair; to take action to preserve (machine, etc.) in working order”.

93    That conclusion is fortified by the application of the principle in Coco. To include ordinary operation within the scope of the verb “maintain” would mean that clause 7 licensed a wider range of conduct which interfered with the rights of others. Where the narrower meaning, which the Court has identified, is available then, in accordance with Coco, it is to be preferred (see also paragraph [51] above).

94    Therefore, the initial connection of the Equipment to a power socket (as opposed to connecting and disconnecting the Equipment from the power socket in the course of repairing it) is not authorised by clause 7(1). Similarly, the drawing of power for the ordinary operation of the Equipment is also not authorised.

95    In reaching this conclusion, the Court accepts the force of NBN’s motoring analogy in relation to the word “maintain” (see paragraph [48] above). Putting the key into the ignition or filling a car with petrol do not fall within the ordinary meaning of “maintain”.

96    Support for this conclusion is also derived from the legislature’s choice of the catch all “maintenance” in clause 7(3) rather than, for example, “maintaining”. “Maintenance” in its ordinary usage connotes keeping something in repair or in good working order rather than operating it. The legislature’s choice of “maintenance” to refer back to “maintain” in clause 7(1) is an additional, clear contextual indication of the meaning of “maintain” which is to be preferred.

(Emphasis added.)

103    It is plain that, as a general proposition, “maintenance” ordinarily connotes keeping something in repair or in good working order rather than repairing it. However, it is equally plain that subcl 7(3)(e) significantly extends the definition of “maintenance” to mean the installation of an additional facility, in the same location as the original facility, where the conditions specified in subcl 7(6) are satisfied. There is nothing in subcl 7(3)(e) concerning the identity of the person installing, or the nature of the additional facility (for example, that the additional facility can only be something required to keep the original facility in good working order). Indeed, for example, subcl 7(3)(a) contemplates removal of the facility as “maintenance”, and subcl 7(3)(d) contemplates replacement of the whole of the original facility as “maintenance”. The only reference to the ordinary meaning of the word “maintenance” is in subcl 7(3)(c), which refers to “ensuring the proper functioning of the original facility” as but one example of conduct which can be “maintenance”.

104    In Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560, Mahoney JA relevantly observed:

Dictionaries are not a substitute for the judicial determination of the interpretation and then construction of statutes and other documents: Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78 per Isaacs J. The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt the much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply.

In doing this, it is, of course, necessary first to determine what is the ordinary or natural meaning of the words used because primarily it is from that that the intention of the legislator or of the parties is to be ascertained…. But that meaning is the ordinary usage of society…. And it is to be taken from the judge's understanding of the sense in which words are used… In Midland Railway Co v Robinson (1889) LR 15 App Cas 19, Lord Macnaghten (albeit in dissent) said (at 35) that, in considering the meaning of a term such as ‘mines and minerals’, the opinion of particular judges may be “a safer guide than any definitions or illustrations to be found in dictionaries”. No doubt a judge will find it of assistance to know the meanings in which, as dictionaries show, the words have been used: …. But courts are not bound by such meanings….

(Emphasis added.)

105    (See also for example Griffiths J in Uber B.V. v Commissioner of Taxation (2017) 247 FCR 462; [2017] FCA 110 at [133]-[134].)

106    In my view it is appropriate to give the words in subcl 7(3) their plain and ordinary reading by reference to the specific definition in that clause. “Maintenance” includes installation of an additional facility in the same location as the original facility. There is no qualification in respect of who installs the original facility, or whether its purpose is to preserve the original facility in working order (or otherwise).

107    In Pipe Networks the proposed conduct of the carrier in seeking to install equipment, plug it in, and draw power without the consent of the person paying for the consumption of that power was of concern to the Court. To the extent that the Supreme Court in Pipe Networks envisaged “maintenance” as excluding conduct which interfered with the rights of others ([93]), I am not persuaded that it excludes conduct such as that in the proceedings before me, where (unlike in Pipe Networks) no unauthorised impact on property of a third party is contemplated.

108    In Pipe Networks at [93] the Court observed that to include ordinary operation within the scope of the verb “maintain” would mean that cl 7 licensed a wider range of conduct which interfered with the rights of others (and therefore a narrower meaning was to be preferred).

109    However, giving the words in subcl 7(3) their plain and ordinary meaning to encompass a wider range of conduct which does not interfere with the rights of others is unobjectionable. As the State conceded in oral submissions, Telstra and NBN Co could put what they wished into their own conduits or ducts. In circumstances where Telstra and NBN Co have consented to Optus placing its cables through the ducts or conduits attached to the respective bridges, it is difficult to identify the difference between such conduct and if, for example, Optus had contractually engaged Telstra and NBN Co to undertake that very same task of installation on Optus’ behalf. Such conduct did not interfere with the rights of Telstra and NBN Co in respect of the original facilities, being the ducts or conduits.

110    The next issue however is whether the conditions in subcl 7(6)(b)(ii) have been satisfied. If they are not satisfied, then the conduct is not “maintenance” within the meaning of subcl 7(3)(e).

(c) Whether the ducts or conduits owned by Telstra and NBN Co fell into the category of “duct, pit, hole, tunnel or underground conduit” as identified in subcl 7(6)(b)(ii) of Sch 3.

111    As I have already observed, and notwithstanding that this is now an issue in dispute between the parties, there is some looseness of language among the parties in respect of use of the terms “conduit” and “duct” in describing the original facilities. Both in communications between them, and in oral submissions at the hearing, the parties appeared to use the words “conduit” and “duct” interchangeably.

112    Materially, in her decision in relation to the Kidd Bridge the TIO observed at 2.1:

Optus says the original facility is existing NBN telecommunications conduit located on the Kidd Bridge.

Section 7 of the Act defines a “facility”….

While Optus has described NBN’s facility as a “conduit”, I am satisfied it meets the definition of “duct”. The words “duct”, “pit”, “hole’, “tunnel” and “underground conduit” are not defined in the Act. The words should be given their ordinary meaning, informed by how they are understood in the telecommunications industry.

113    It is not in contention that the Telstra facility attached to the Boobegan Creek Bridge and the NBN Co facility attached to the Kidd Bridge are above ground. The State argued, in summary, that:

    If Optus argues that the original facility in each case is a “duct”, this immediately conflicts with the wording of subcl 7(6)(b)(ii) where the other associated terms all have about them the common element of being underground.

    The term “duct” is not defined in the Telecommunications Act. It takes its meaning consistent with its associates in the sub clause; namely, being underground. Applying the ejusdem generis rule of statutory interpretation, the result is that a “duct” must also be underground for an additional facility to qualify for installation under subcl 7(3)(e).

    This construction is consistent with the limitation on installation of overhead cables in the Low-impact Determination.

    To the extent that the TIO has, in this and other decisions, decided against this approach, it was erroneous.

114    The Macquarie Dictionary defines “duct” as:

noun 1. any tube, canal, or conduit by which fluid or other substances are conducted or conveyed.

2. Anatomy, Zoology a tube, canal, or vessel conveying a body fluid, especially a glandular secretion or excretion.

3. Botany a cavity or vessel formed by elongated cells or by many cells.

4. Electricity a pipe for enclosing electric cables.

115    Further, the Macquarie Dictionary defines “conduit” as:

noun 1. a pipe, tube, or the like, for conveying water or other fluid.

2. some similar natural passage.

3. Electricity a pipe that encases electrical wires or cables to protect them from damage.

4. (formerly on tramways) an underground trough containing positive and negative conductor rails, from which current was collected by a plough (attached to the underside of the tram) which passes through a slot in the road surface.

5. Obsolete a fountain.

116    The Telstra facility on the Boobegan Creek Bridge and the NBN Co facility on the Kidd Bridge were enclosures for telecommunications cables and infrastructure. The analogy with the dictionary definition of a “duct” as “a pipe for enclosing electric cables” is strong.

117    However, I reject the State’s argument that a “duct” must also be underground, by reference to the ejusdem generis principles on which the State relies, and also by reference to the legislative context of subcl 7(6)(b)(ii).

118    The ejusdem generis rule was described by Latham CJ in R v Regos & Morgan (1947) 74 CLR 613; [1947] HCA 19 in the following terms:

Section 3 provides an example of a list of specific acts or omissions followed by general words. All the specified acts or omissions are contraventions of the regulations and the general words add such other contraventions of the regulations as may be declared. It is argued that the general words should be regarded as applying only to acts and omissions of the same nature or kind as previously specified acts, i.e., that they should not be construed as covering any contravention of the regulations which might be declared but as limited to some particular class or genus of such contraventions.

The ejusdem-generis rule is sometimes stated in very broad terms as, for example, by Lord Campbell in R. v. Edmundson —"Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified." But in more recent cases a very different view has been taken of the rule as, for example, in Anderson v. Anderson, where it was said in the Court of Appeal that "prima facie general words are to be taken in the larger sense, unless you can find that in the particular case the true construction of the instrument requires you to conclude that they are intended to be used in a sense limited to things ejusdem generis with those which have been specifically mentioned before". The ejusdem-generis rule is a rule of construction only; that is, it is designed to assist in ascertaining the intention of Parliament in the case of a statute and of the parties to a document in other cases (Thorman v. Dowgate Steamship Co. Ltd).

The rule is that general words may be restricted to the same genus as the specific words that precede them (Thames & Mersey Marine Insurance Co. Ltd. v. Hamilton, Fraser & Co.). Before the rule can be applied it is obviously necessary to identify some genus which comprehends the specific cases for which provision is made. In Tillmanns & Co. v. S.S. Knutsford Ltd, it was pointed out that "Unless you can find a category there is no room for the application of the ejusdem-generis doctrine"—per Farwell L.J.: see also per Vaughan Williams L.J. and per Kennedy L.J. In Mudie & Co. v. Strick, Pickford J. said: "You have to see whether you can constitute a genus of the particular words, and, if you can, then unless there is some indication to the contrary, you must construe the general words as having relation to that genus. If you cannot do this, then ... you must read all the particular words separately, and take the general words separately also". In S.S. Magnhild v. McIntyre Bros. & Co., there is a full discussion of the rule by McCardie J. in which it is clearly shown that where it is sought to apply the rule to a case where an enumeration of specific things is followed by general words it must appear that the specified things "possess some common and dominant feature" so that they can be described as constituting a genus distinguished by that feature.

(Footnotes omitted. Emphasis added.)

119    In the same year, Dixon J in Cody v JH Nelson Pty Ltd (1947) 74 CLR 629; [1947] HCA 17 discussed in detail the ejusdem generis rule, noting that for the purposes of ejusdem generis construction, there must be found in “the particular instances which precede the general words some common attributes or characteristics which enable you to formulate a category or description”.

120    Applying these principles, I do not accept that the words in subcl 7(6)(b)(ii) form a class or genus that confines the meaning of the word “duct” to a duct which is underground. Specifically:

    The word “duct” is the first in a list of words in subcl 7(6)(b)(ii). It does not appear at the end of a list of words such that it should be construed by reference to those earlier words.

    “Conduit” and “duct” appear to essentially mean the same thing, particularly in respect of enclosures encasing electrical cables. To that extent, “conduit” in subcl 7(6)(b)(ii) is not a general word at the end of a list of particular words, creating a genus.

    The other nouns listed in subcl 7(6)(b)(ii) are not necessarily “underground”. For example, “holes” and “pits” are in the nature of excavations in the ground, which may or may not be covered with soil or other material.

    That the word “conduit” at the end of the list in subcl 7(6)(b)(ii) is qualified by the adjective “underground” does not mean that all other words in that list should be so construed. It is reasonable to conclude that “conduit” is qualified by “underground” to make plain that underground conduits are specifically included in the definition. This does not mean however that above-ground conduits are excluded.

121    The list of words in subcl 7(6)(b)(ii) are particular words which, as Latham CJ explained, should be read separately. To the extent that any genus can be identified referable to that list, I consider that the genus advanced by the State is too narrow. The list in subcl 7(6)(b)(ii) catalogues types of enclosures within which telecommunications facilities can be installed. The location of the enclosure is not a qualifying factor except in relation to “underground conduits” which are specifically included.

122    Further, I am unable to discern a legislative purpose that a thing must be “underground” to qualify as being “maintained” for the purposes of subcl 7(3)(e). Subclause 7(6) requires that, for the purposes of subcl 7(3)(e), the following conditions be satisfied:

(a)    the combined levels of noise that are likely to result from the operation of the additional facility and the original facility are less than or equal to the levels of noise that resulted from the operation of the original facility.

(b)    either:

(i)    the additional facility is located inside a fully-enclosed building, the original facility is located inside the building and the building is not modified externally as a result of the installation of the additional facility; or

(ii)    the additional facility is located inside a duct, pit, hole, tunnel or underground conduit;

(c)    such other conditions (if any) as are specified in the regulations.

(Emphasis added.)

123    Subclause 7(6)(a) appears concerned with auditory amenities, whereas subcl 7(6)(b) appears concerned with visual amenities. The provisions of subcl 7(6) appear directed to requiring that an additional facility not create a greater disturbance to the auditory and visual amenity than that already caused by the original facility. There may be a legislative purpose which can be derived by reference to noise, that facilities be underground. However, to the extent that an additional facility is located inside a duct, pit, hole, tunnel or underground conduit, the object of absence of disturbance of the visual amenity is achieved. I am unable to identify how a requirement that a facility be underground, if it is otherwise located inside a duct, pit, hole or tunnel, would further the legislative purpose of avoiding disturbance of the visual amenity following the installation of the additional facility.

Conclusion

124    In my view, the TIO was correct in finding that the proposed activities were “maintenance” for the purposes of subcl 7(3)(e) of Sch 3 to the Telecommunications Act. The construction of subcl 7(3)(e) of Sch 3 advanced by the State requires the clause to be read down in a manner not warranted by either the plain language of the clause or the legislative framework. Had the clause been intended to be construed in the manner advanced by the State, Parliament could have limited the definition of “maintenance” accordingly.

125    These grounds of review are not substantiated.

Issue (2): Whether the TIO erred in failing to approach these proceedings in the same way she had approached earlier cases (grounds 2 and 3 of the Boobegan Creek Bridge Proceedings; ground 3 of the Kidd Bridge proceedings)

126    In the Granville Bridge decision the TIO decided that the installation of a fibre optic cable and associated facilities by Optus within an existing Telstra conduit attached to the Granville Bridge was neither a low-impact facility nor a maintenance facility. Relevantly, at p 9 in that decision the TIO stated:

I do not consider Optus’ position is consistent with the intended purpose of clause 7 of Schedule 3, other examples of maintenance included in subclause 7 (3), or the ordinary meaning of maintenance. The Macquarie Dictionary online defines the word “maintain” as “to keep in existence or continuance; preserve; retain… to keep in due condition, operation or force; to keep unimpaired… to keep in a specified state, position etc… to provide with the means of existence.”

As noted, subclause 7(1) refers to a carrier maintaining an original facility. It would be a nonsensical result if paragraph 7(3)(e) allowed Optus to install its own cables under the ostensible guise of “maintaining” the existing Telstra cables…

Relevant case law supports a more restrictive view of what constitutes a maintenance activity…

The Court of Appeal in Hurstville did not accept that such a broad interpretation of maintenance could be supported…

127    In the Larry Storey Bridge decision, Telstra proposed to haul new cable through its own ducts attached to that bridge. A question arose as to whether this was a “maintenance activity”. The State in that case submitted that the installation of new fibre optic cable in order to expand service and increase performance could not fall within the meaning of “maintenance” in cl 7 of Sch 3, because Telstra was not seeking to preserve or replace existing cable but adding more cable. The TIO in that case found at p 9:

However even if the bridge proposal would not constitute maintenance in accordance with the ordinary meaning of the word “maintain”, I am satisfied the bridge proposal falls within the extension of the meaning of “maintain” afforded by paragraph 7(3)(e) of Schedule 3.

128    In the Currumbin Creek Estuary Bridge decision Telstra again proposed to haul new cable through its own ducts attached to that bridge. The TIO similarly found that this was a “maintenance” activity.

129    The State contends, in summary, that in her decisions the subject of the present proceedings, the TIO denied the State natural justice, was unreasonable, and erred in law in failing to find in the State’s favour in respect of proposed activities of Optus where those activities were similar to those in the Granville Bridge decision.

130    I do not agree.

131    First, I consider that the decisions of the TIO in respect of the Boobegan Creek Bridge Proceedings and the Kidd Bridge Proceedings were correct. That the TIO’s findings concerning “maintenance” may have been inconsistent with the earlier findings of the TIO in the Granville Bridge Decision is not, in my view, a basis for disturbing her decisions in the Boobegan Creek Bridge Proceedings and the Kidd Bridge Proceedings.

132    Second, both in respect of the Boobegan Creek Bridge and the Kidd Bridge, the TIO recorded that she was not bound by her previous decisions, but considered them relevant to the promotion of efficiency within the Australian telecommunications industry and the desirability of promoting outcomes causing the least detriment, inconvenience and damage overall. In the Boobegan Creek Bridge decision, the TIO referred specifically to her earlier decisions in respect of the Granville Bridge, the Larry Storey Bridge, and the Currumbin Creek Estuary Bridge, as well as the Hurstville case. In the Kidd Bridge decision the TIO did not specifically refer to any of the Granville Bridge decision, the Larry Storey Bridge decision or the Currumbin Creek Estuary Bridge decision, although the TIO did refer to the Hurstville case.

133    The decisions of the TIO are administrative decisions, which should not be construed minutely and finely with an eye keenly attuned to the perception of error (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; [1993] FCA 456; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]-[31]). I am not persuaded that the TIO simply ignored the arguments of the State in respect of the meaning of “maintenance”. Rather, it appears that the reasoning of the TIO has undergone a shift in respect of this issue since the Granville Bridge decision. That this is so is apparent from the TIO’s decisions in respect of the Larry Storey Bridge and the Currumbin Creek Estuary Bridge.

134    Third, I do not accept that the TIO is not entitled to develop her reasoning over various decisions in response to arguments and factual scenarios which may be put to her. Consistency in administrative decision-making was the subject of comment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 365; [2013] HCA 18 at [70], where Hayne, Kiefel and Bell JJ in turn referred to observations of Lord Russell of Killowen CJ in Kruse v Johnson [1898] 2 QB 91 at 99-100. In Kruse, in discussing concepts of “unreasonableness”, Lord Russell observed that unreasonableness was found where delegated laws were “partial and unequal in their operation as between different classes”. This was certainly not the case in the present circumstances before the TIO. In any event, as the learned authors of Judicial Review of Administrative Action and Government Liability (Lawbook Co, 2017) observed at [5.250], the “no fettering” principle pulls against the equality ideal, because it requires decision-makers to give individual attention to each individual matter. They later continue:

6.570 … Aside from the general law's failure to confront the clash between “consistency” and “no fettering”, the biggest practical problems with any complaint about inequality, lie in establishing its relevance, its comparators, and its justifications. “Why pick on me?” is usually no answer to a criminal charge, and almost certainly no ground for judicial review. In any event, there might be good reason to single someone out.

(Footnotes omitted.)

135    Indeed, as Selway J observed in SGBB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 in respect of another decision-maker:

32    In fact under the Act the Tribunal is required to act independently. See WADZ v Minister for Immigration and Multicultural Affairs [2002] FCAFC 118 at [9]-[10]. It is not bound, whether on questions of law or fact, by its own previous decisions. It is responsible always for determining the actual case before it on the law and facts as they are at the time of decision. It would be preferable if that did not result in inconsistent decisions, but if it does then that is what the Act clearly permits, save only for jurisdictional error. As Brennan J famously remarked in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36: ‘the court has no jurisdiction simply to cure administrative injustice or error.’ It is not enough to identify apparent unfairness. It is fundamental to identify a jurisdictional error.

33    This does not mean that the Tribunal can ignore similar previous decisions made by it when they are relied upon by an applicant. For example, if the Tribunal had a practice of following its previous decisions then it may well be arguable that that practice could found a legitimate expectation that the Tribunal would continue to follow its previous decisions in a similar case. But even if that is conceded, it would do no more than give to an applicant who relied upon the previous decision a right to be heard as to whether or not the previous decision should be followed.

136    (See also NARY v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1255 at [10]).

137    I respectfully adopt these observations of his Honour.

138    These grounds of review are not substantiated.

Issue (3): whether the TIO made an error of law in deciding the onus was on the State to show an alternative location for the proposed work by reference to s 6.29(b) of the Telecommunications Code (ground 4 of the Kidd Bridge Proceedings)

139    The Telecommunications Code relevantly provides:

6.28     Objection to maintenance activity

(1)    If a carrier gives notice to an owner or occupier of land of its intention to engage in a maintenance activity, the owner or occupier (the objector) may give the carrier a written objection to the activity.

(2)    The objection must include reasons for the objection.

6.29    Reasons for objection

The reasons for the objection may relate only to all or any of the following matters:

(a)    using the objector’s land to engage in the activity;

(b)    the location of a facility on the objector’s land;

(c)    the date when the carrier proposes to start the activity, engage in it or stop it;

(d)    the likely effect of the activity on the objector’s land;

(e)    the carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.

Note:    The carrier is required to take all reasonable steps to ensure that the carrier causes as little detriment and inconvenience, and does as little damage, as practicable in engaging in the activity: see Act, Schedule 3, clause 8.

140    In the Kidd Bridge decision the TIO stated as follows:

3.2 Objection to the location of the facility on the Department’s land – not substantiated.

I am not satisfied the Department has substantiated its objection to the location of the activity on the land.

This ground of objection is narrow and there are limited circumstances in which an objector can rely on it. To meet this objection, the objector is expected to point out an alternative location on its land the carrier could use.

Optus proposes to install the cable inside NBN conduit on the bridge. The Department says the conduit is cut into brackets supporting a water pipeline and installing additional cable would make replacing the water pipeline more expensive and inconvenient.

However, the Department has not identified an alternative location on its land for Optus to use.

141    The State submitted in summary that:

    Its objection in respect of s 6.29(b) of the Telecommunications Code failed because it did not identify an alternative route.

    To impose the requirement of the “expectation” on the objector to identify an alternative route was an error of law.

    It is the carrier and not a landowner who has the knowledge of location of telecommunications facilities, and technical expertise under the Telecommunications Act, who should bear the onus.

    The TIO did not invite a submission from the State on either the validity of the expectation or an alternative location.

142    The State has raised an interesting issue concerning the identity of the party which bears an onus in respect of an objection pursuant to s 6.29(b) of the Telecommunications Code. However in the circumstances of this case, where the TIO was correct to find that the proposed activities were maintenance of existing original facilities, it is unnecessary for me to make any conclusive findings in respect of this onus, and alternative locations of additional facilities. In particular:

    as at all times the proposed activities were maintenance, by way of installation of the Optus fibre optic cables entirely inside the existing original facilities, the question whether those activities could be conducted at an alternative location on the bridge was irrelevant; and

    this is particularly so given that subcl 7(3)(e) of Sch 3 defines maintenance as “the installation of an additional facility in the same location as the original facility”.

143    It follows that, while in different factual circumstances there may be an issue of onus in respect of an objection pursuant to s 6.29(b) of the Telecommunications Code, the observations of the TIO in this case in respect of onus were not material to the outcome of her decisions, nor my decision.

144    This ground is not substantiated.

Issue (4): whether the TIO made an error of law in respect of the obligation of Optus to comply with cl 11 of Sch 3 to the Telecommunications Act (ground 5 of the Kidd Bridge Proceedings).

145    Clause 11 of Sch 3 provides as follows:

11 Agreements with public utilities

(1)    A carrier must make reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in an activity that is:

(a) covered by Division 2, 3 or 4; and

(b) likely to affect the operations of the utility.

(2)    A carrier must comply with an agreement in force under subclause (1).

146     “Public utility” is defined by cl 2 of Sch 3 as follows:

"public utility" means a body that provides to the public:

(a)     reticulated products or services, such as electricity, gas, water, sewerage or drainage; or

(b)     carriage services (other than carriage services supplied by a carriage service provider); or

(c)     transport services; or

(d)     a product or service of a kind that is similar to a product or service covered by paragraph (a), (b) or (c).

147    Further, I note that cl 8 of Sch 3 provides:

8 Carrier to do as little damage as practicable

In engaging in an activity under Division 2, 3 or 4, a carrier must take all reasonable steps to ensure that the carrier causes as little detriment and inconvenience, and does as little damage, as is practicable.

148    Both before the TIO and in this Court the State submitted that the obligation of Optus to comply with cl 11 of Sch 3 was, in turn, referable to an objection to the State pursuant to s 6.29 of the Telecommunications Code, namely:

(e)    the carrier’s proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the objector’s land.

149    The maintenance activity of Optus pursuant to subcl 7(3) falls within Div 4 of Sch 3.

150    In the Kidd Bridge decision the TIO relevantly observed as follows:

3.1 Objection to the likely effect of the activity on the land – not substantiated

I am not satisfied the Department has substantiated its objection to the likely effect of the activity on its land. This is because the Department has not shown the proposed activity will cause ongoing detriment to the land.

This ground of objection allows a landowner or occupier to object to the potential impact of the activity on the land itself.

The Department says Optus’ proposed activity will be likely to:

•    affect future refurbishment and decommissioning of the bridge, and

•    make replacement of the water pipeline more expensive and inconvenient.

To clarify the Department’s concerns, Optus asked the Department about its plans for the bridge. The Department said it had no immediate plans to refurbish or decommission the bridge, or replace the water pipeline, but expected the cable to cause inconvenience or extra costs should it need to do so in the future.

I am unable to accept a ground of objection based on a possible future impact of the installation. The Department has not identified a concern that the installation will have an effect on the land. Instead, the Department has raised concerns about the installation’s impact on future work it may do on the bridge.

…

3.3 Optus’ proposals to minimise detriment and inconvenience, and to do as little damage as practicable, to the land – not substantiated

I am not satisfied the Department’s concerns about Optus’ proposal to minimise detriment, inconvenience and damage is substantiated. This is because I am satisfied Optus has adequately addressed the Department’s concerns in its response and through Optus fulfilling its obligations under the Act and the Code.

Under this ground, the objector is required to identify a specific concern about detriment, inconvenience, or damage to the land which has not otherwise been addressed.

The Department says Optus could have limited detriment by entering into a License agreement or offering to indemnify the Department against any future costs associated with the cable. The Department says the proposed installation will affect its operations, and as a result must make reasonable efforts to enter into an agreement for the installation under clause 11 of Schedule 3 of the Act.

Clause 11 says that if the installation or maintenance of a low-impact facility is likely to affect the operation of a public utility, a carrier must make reasonable efforts to enter into an agreement with the public utility. However, clause 11 is not a basis for objecting to the proposed activity.

Under the Act and the Code, a carrier must comply with substantial obligations, including to:

•    cause as little detriment and inconvenience and do as little damage as is practicable,

•    ensure land is restored to a condition similar to its condition before the activity,

•    act in accordance with good engineering practice, and

•    protect the safety of persons and property and ensure the activity interferes as little as practicable with the use of the land.

These obligations are a matter of law and Optus is legally required to ensure they are met.

151    Specifically in respect of this ground of review, the State submitted, in summary:

    Although the DTMR offered to enter into a licence agreement with Optus for the proposed activity on the Kidd Bridge, Optus failed to respond to the offer.

    In its correspondence with Optus, the DTMR linked the requirement of Optus to minimise detriment or inconvenience to the DTMR’s operation of the Kidd Bridge, with Optus’ obligations in respect of reasonable efforts to enter an agreement.

    The TIO erred in concluding that Optus’ failure to comply with cl 11 of Sch 3 was not a basis for objection by the State to Optus’ proposed activity, because:

•    It overlooked the legal obligation under cl 11 insofar as it required a carrier under cl 8 to take all reasonable steps to ensure the carrier causes as little damage and inconvenience as is practicable, and which was one of the prescribed reasons for objection in s 6.29(e) of the Telecommunications Code

•    In light of the failure of Optus to even respond to the proposed licence agreement proffered by the State, the TIO’s conclusion meant that a failure of a carrier to make the slightest effort to comply with cl 11 had no consequences or meaning.

•    The TIO failed to provide reasons for her decision on this point.

152    Optus submitted, in summary:

    there was no evidence or agreed facts by which the Court could conclude that DTMR provided services as described in the definition of “public utility”; and

    a failure to comply with cl 11 of Sch 3 was not a ground for objection within s 6.29 of the Telecommunications Code.

153    The parties are clearly at odds in respect of whether the DTMR is a “public utility” within the meaning of cl 11. Notwithstanding the submission of Optus as to an absence of agreed facts on this point, I consider it likely that the DTMR was at all relevant times a “public utility” providing transport services to the public, in circumstances where the parties agreed that the DTMR was responsible for the management of State-controlled roads in Queensland, and further had responsibility for the management and operation of the Kidd Bridge. Certainly the TIO at no point expressed any doubt that the DTMR was a “public utility”, and in her comments appeared to assume that it was for the purposes of cl 11 of Sch 3.

154    On this basis, the questions before me now in respect of this ground are:

(a)    whether the allegations by the State before the TIO of failure on the part of Optus to make reasonable efforts to enter an agreement with the State within the meaning of cl 11, constituted a ground of objection pursuant to s 6.29(e) of the Telecommunications Code; and

(b)    whether there is merit in the State’s contentions that the TIO erred in law in failing to deal with the State’s allegations concerning the conduct of Optus in this respect.

155    The parties in the present proceedings noted that this ground was subordinate to the primary issue of maintenance in this case (see, for example, transcript p 8, l 7). As a result, there was an unfortunate paucity of submissions by all parties in respect of this ground of review. This is particularly the case because on closer examination this ground clearly raises potentially complex issues of obligation, consequence and statutory construction. On the limited material before me however I find as follows.

156    First, there is no direct link between cl 11 of Sch 3 to the Telecommunications Act and grounds of objection under s 6.29 of the Telecommunications Code, including s 6.29(e). There is no language in cl 11 which invokes consideration of issues of detriment, inconvenience and/or damage to the objector’s land such that, as a matter of construction, a failure of a party to comply with cl 11 would translate into a ground of objection pursuant to s 6.29(e). Rather, cl 11 raises questions of likelihood of (in this case) maintenance activities, to “affect the operations of the utility”. This is a different issue to the question of detriment etcetera to the objector’s land contemplated by cl 11.

157    Second, notwithstanding the submissions now before me, it is unclear whether the issue now raised by the State, namely as to the potential failure of cl 11 as a statutory provision should the Court reject its argument concerning s 6.29(e), was argued in these terms before the TIO. In the absence of such argument, it would perhaps not be surprising for there to be no specific comment by the TIO of the nature of cl 11 and the consequences of failure of a party to comply with it.

158    Third, cl 11 is phrased in the language of obligation. By way of analogy, I note that there is a significant body of law concerning the language of obligation, and the consequences of failure to comply with obligatory statutory provisions. The decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 is authority, for example, that whether an act done in breach of a condition regulating the exercise of a statutory power is necessarily invalid and of no effect depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with this condition. However, this is a different issue from whether the alleged failure of Optus to comply with the statutory obligation set out in cl 11 to make reasonable efforts to enter into an agreement, translates into a substantive right of objection as set out in other, albeit related, legislation. I am not persuaded that either the proper construction of the language of cl 11 or s 6.29(e), or any relevant legislative purpose, results in a finding that failure to comply with cl 11 translates into a ground of objection in s 6.29(e). Rather, cl 11 of Sch 3 appears to create obligations in a carrier unrelated to grounds of objection in s 6.29 of the Telecommunications Code.

159    Fourth, in any event, it appears from the reasons of the TIO that she did address issues of prospective detriment, inconvenience and/or damage to the State’s land arising from the proposed activities of Optus for the purposes of s 6.29(e). In particular, at 3.1 of her reasons the TIO specifically examined the State’s objection referable to the likely effect of the proposed activity on the State’s land, and rejected the State’s objection on the facts presented.

160    Finally, I note that under Part B of the Kidd Bridge decision the TIO set out her Assessment of Jurisdictional Facts, and in particular at 1.3 set out “Table 1 – Outline of communications between Optus and the Department”. In that outline the TIO noted communications between the parties in respect of allegations by the State that Optus’ proposal did not minimise detriment and inconvenience to the DTMR’s operation of the bridge “as it will affect future refurbishment and decommissioning of the bridge”. The TIO further noted that:

    On 7 August 2020 Optus wrote to the DTMR to address the objection, and asked the DTMR:

•    to explain how the installation of additional cable inside an existing conduit could cause detriment

•    for specific details of any planned refurbishment and decommissioning of the bridge

•    for specific information to show any ongoing risk to land.

    On 17 August 2020 the DTMR wrote to Optus to clarify its objections, stating:

•    [The DTMR] had no specific current plans to refurbish or decommission the bridge, but when it eventually does have plans, it will be more expensive and time consuming if Optus installed cable on the bridge

•    Optus had not limited detriment by entering into a Licence agreement, or offering to indemnify the DTMR against any future costs in relation to the cable

    On 19 August 2020 Optus responded to the DTMR, repeating its earlier submissions.

161    At 3.3 the TIO referred to issues of detriment, inconvenience and/or damage to the State’s land, but found that Optus had adequately addressed the DTMR’s concerns in its response. In this respect, while not expressly stating this finding, it appears that the TIO formed the view that Optus was not obliged to enter into an agreement with the State pursuant to cl 11 making provision for the manner in which Optus would engage in the proposed maintenance activity. This was because the TIO accepted the position adopted by Optus that the State had not explained any deleterious effect on its operations from the proposed activity of Optus warranting such an agreement.

162    In my view the finding by the TIO that Optus had adequately addressed the DTMR’s concerns, notwithstanding the State’s request for Optus to enter into a Licence Agreement with it, was open to the TIO in light of the communications between the parties.

163    This ground is not substantiated.

Issue (5): if the TIO was wrong in her decision concerning the Boobegan Creek Bridge, whether the proceedings nonetheless had utility notwithstanding that the work on that bridge had been completed.

164    As I have found that the TIO was not wrong in her decision concerning the Boobegan Creek Bridge, it is unnecessary for me to consider this issue.

Issue (6): if the TIO was wrong in respect of both her decisions in finding that the proposed activities were “maintenance”, whether the TIO had jurisdiction to deal with the State’s objections.

165    As I have found that the TIO was not wrong in her decisions concerning both the Boobegan Creek Bridge and the Kidd Bridge, it is unnecessary for me to consider this issue.

Conclusion

166    No error of law has been demonstrated in either decision of the TIO.

167    Both applications before the Court are dismissed.

Associate:

Dated:    18 May 2021