Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

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

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

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

REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

1    Before the Court is an amended originating application filed 23 May 2022 for judicial review pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth). The applicant, Optus Fixed Infrastructure Pty Ltd (Optus), seeks review of the following two decisions of the first respondent, the Telecommunications Industry Ombudsman (TIO):

1.     The decision of the First Respondent (TIO) made on 29 March 2022 that she does not have jurisdiction to assess the objections of the Second Respondent, which objections were referred to the TIO by Optus (Jurisdiction Decision 1, or JD1), because the proposed activity is not an “installation of a facility” authorised by clause 6 of Schedule 3 to the Telecommunications Act 1997 (Cth) (Telco Act).

2.     The decision of the TIO made on 29 March 2022 that she does not have jurisdiction to assess the objections of the Third Respondent, which objections were referred to the TIO by Optus (JD2), because the proposed activity is not an “installation of a facility authorised by clause 6 of Schedule 3 to the Telco Act.

2    The two decisions of the TIO, which are on substantially the same terms, will be referred to collectively as the Decision.

3    The Decision relates to the powers of a carrier to carry out the installation of a facility that is “ancillary” to a “low-impact facility”; or, alternatively, for a carrier to engage in an activity that is “ancillary or incidental” to the installation of a low-impact facility under clause 6 of Schedule 3 of the Telecommunications Act 1997 (Cth) (Telecommunications Act).

4    Optus sought the following Orders:

1.     An order quashing JD1 and/or a declaration that JD1 is void.

2.    An order quashing JD2 and/or a declaration that JD2 is void.

3.     A declaration that the activities proposed by the Applicant amount to the "installation of a facility" within the meaning of clause 6 of Schedule 3 of the Act.

4.     A declaration that the TIO has jurisdiction to determine the objections.

5.     An order referring the objections to the TIO for determination according to law.

6.     An order that the Respondents pay the Applicant's costs of the proceeding.

7.    Such further or other order as this Honourable Court thinks fit.

BACKGROUND

5    Optus is a licensed telecommunications carrier under the Telecommunications Act.

6    The TIO’s functions under the Telecommunications Act include determining objections made to activities proposed by carriers under Sch 3 of the Telecommunications Act.

7    Optus has sought approval to extend its network through a crossing over the Sir Leo Hielscher Bridge (also known as the Gateway Bridge) (the Bridge). The Bridge consists of a pair of bridges, one carrying traffic northward (the North Bridge), and one carrying traffic southward with a pedestrian walkway (the South Bridge). The Bridge crosses the Brisbane River and forms part of the Gateway Motorway in Brisbane, linking the suburbs of Eagle Farm and Murarrie.

8    The Second Respondent, the State of Queensland (the State), through the Department of Transport and Main Roads (TMR), manages and operates the Bridge. The Third Respondent, Queensland Motorways Pty Limited (Queensland Motorways) has an agreement with the State to occupy the Bridge, and is the toll road operator.

9    Clause 17 of Sch 3 of the Telecommunications Act provides as follows:

17 Notice to owner of land—general

(1)    Before engaging in an activity under Division 2, 3 or 4 in relation to any land, a carrier must give written notice of its intention to do so to:

(a)     the owner of the land; and

(b)    if the land is occupied by a person other than the owner—the occupier.

(2)    The notice must specify the purpose for which the carrier intends to engage in the activity.

(3)    The notice under subclause (1) must contain a statement to the effect that, if a person suffers financial loss or damage in relation to property because of anything done by a carrier in engaging in the activity, compensation may be payable under clause 42.

(4)    The notice must be given at least 10 business days before the carrier begins to engage in the activity.

(4A)    Despite subclause (4), the notice need be given only 2 business days before the carrier begins to engage in an activity authorised by Division 2 (which deals with inspection) that:

(a)     is not inconsistent with Australia’s obligations under a listed international agreement; and

(b)    could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and

(c)    will not have an adverse effect on a streetscape or other landscape; and

(d)     will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.

(5)    A person may waive the person’s right to be given a notice under subclause (1).

(6)    Subclause (1) does not apply if:

(a)     the carrier intends to engage in activities under Division 2 (which deals with inspection of land), 3 (which deals with installation of facilities) or 4 (which deals with maintenance); and

(b)     those activities need to be carried out without delay in order to protect:

(i) the integrity of a telecommunications network or a facility; or

(ii) the health or safety of persons; or

(iii) the environment; or

(iv) property; or

(v) the maintenance of an adequate level of service.

(6A)    Subclause (1) does not apply if:

(a)     the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and

(b)     the carrier considers that compliance with subclause (1) is impracticable in the circumstances.

(6B)     For the purposes of this clause, a temporary defence facility is a facility of the kind that is mentioned in paragraph 6(1)(c) of this Schedule.

(7)     Subclause (1) does not apply if the carrier intends to engage in an activity under Division 2 (which deals with inspection) in relation to land that is a public place and the activity:

(a)    is not inconsistent with Australia’s obligations under a listed international agreement; and

(b)     could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and

(c)     will not have an adverse effect on a streetscape or other landscape; and

(d)     will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.

(8)     Subclause (1) does not apply if:

(a)     the carrier intends to install a low-impact facility under Division 3; and

(b)     the installation of the facility is covered by paragraph 6(5)(g).

(9)     For the purposes of this clause, low-impact facility has the same meaning as in clause 6.

10    On 24 September 2021, Optus gave notices, in materially identical terms, pursuant to cl 17 of Sch 3 of the Telecommunications Act (Land Access Activity Notices, also known as LAANs) to the State and Queensland Motorways.

11    Relevantly, the LAAN provided to the TMR on 24 September 2021 stated:

LAND ACCESS AND ACTIVITY NOTICE

ISSUED PURSUANT TO CLAUSE 17 (NOTICE TO OWNER OF LAND – GENERAL), OF SCHEDULE 3 OF THE TELECOMMUNICATIONS ACT, 1997 (CTH) ("ACT'')

SITE: PINKENBAH (SIR LEO HIELSCHER BRIDGES – GATEWAY MOTORWAY BRISBANE)

Dear Owner/Occupier

Optus Fixed Infrastructure Pty Limited ACN 092 450 783 (“Optus") is a licensed telecommunications carrier pursuant to the Act.

In meeting Optus' commitments to provide modem and efficient telecommunication services to Australia, it is necessary to access your property and undertake the following activities during the timeframe specified. There is no requirement that you be present during the course of our activities.

If our activity will involve the removal or clearance of trees, undergrowth or vegetation on private land we are required to provide you with an opportunity to perform that removal or clearance work yourself. Consequently, we request that you carry out the clearance or removal work described above before the Access Start Date specified above. However, if you would prefer, you may leave the trees, undergrowth or vegetation uncleared and we will clear or remove them ourselves at our cost when carrying out the other activities indicated.

Further details of the proposed activities are included in any attachment/s to this notice.

Optus' employees and contractors are authorised to carry out the activities under clause 43 of Schedule 3 of the Act. Optus contractors have been engaged on this project to enter onto your property to install and maintain the facilities for the purpose of the above legislation. Other contractors may from time to time be engaged by Optus to carry out the activities.

In engaging in the activities, Optus is committed and obliged to take all reasonable steps to ensure that they cause as little detriment and inconvenience , and do as little damage, as is practicable. Optus will also take all reasonable steps to ensure that the site is restored to a condition similar to its condition before the activity began. Details of the likely impact on the site and the proposed measures to prevent or restore disturbance are as follows:

Australia's privacy regime restricts the way private sector organisations collect, use, disclose and store personal information about individuals. The regime sets out the minimum standards for information handling practices. Optus, its subsidiaries and contractors must comply with these legal obligations. As well, Optus is obliged to follow the requirements of the Telecommunications Act in relation to use and disclosure of personal information.

Optus, its subsidiaries and contractors collect contact details of landowners and authorities for the purpose of notifying them about proposed activities on their land. Optus maintains a contact database in order to manage its dealings with you. If you would like to know more about privacy at the Optus, please visit our websites at www.optus.com.au

Attached you will find information regarding Optus' rights and responsibilities and your rights in accordance with the Telecommunications Act 1997 (Cth).

We thank you for your assistance and co-operation. If you have any queries, please do not hesitate to contact…

12    In short, the LAAN stated that Optus proposed to install fibre optic cables:

    in existing conduits in the South Bridge; and

    in the approaches to the north and south of the Bridge, including on the Gateway Motorway (the Approaches)

(collectively, the Proposed Activity).

13    The LAAN also included photographs and diagrams of the location of the Proposed Activity.

14    On 7 October 2021, TMR objected to the Proposed Activity (TMR’s Objection), and on 8 October 2021 Queensland Motorways objected to the Proposed Activity (Queensland Motorways’ Objection) (collectively, the Objections). In Queensland Motorways’ Objection, Queensland Motorways explained that, “Optus must reach a separate commercial agreement with [Queensland Motorways] for use of the Gateway Bridge”.

15    By letter dated 18 November 2021 (emailed 19 November 2021) Optus referred TMR’s Objection to the TIO pursuant to s 4.36 of the Telecommunications Code of Practice 2021 (Cth) (the Code). Subsequently on 26 November 2021 Optus referred Queensland Motorways’ Objection to the TIO.

16    On 16 February 2022, the TIO advised Optus, the State and Queensland Motorways of its preliminary view that the TIO did not have jurisdiction to determine the Objections. The TIO invited the parties to make submissions and provide further information before it made its final decision.

17    In its final Decision dated 29 March 2022, the TIO determined that it did not have jurisdiction to assess the Objections under Pt 5, Div 5 of the Code.

18    I understand it to be common ground that the installation of the cable on the Bridge did not on its own qualify as the installation of a low-impact facility for the purposes of cl 6 of Sch 3 of the Telecommunications Act. Additionally, the nature of the Proposed Activity itself was not materially in contest. The proceedings involved issues of construction, principally of whether the Proposed Activity constituted the installation of a facility that was “ancillary” to a low-impact facility for the purposes of s 3.1(4) of the Telecommunications (Low-impact Facilities) Determination 2018 (Cth) (the Determination).

The Decision of the TIO

19    Where the TIO refers to “Transurban” in its reasons I understand that those reasons now refer to Queensland Motorways.

20    The Decision of the TIO in respect of TMR’s objection was that:

… I do not have jurisdiction to assess TMR's objections to the proposed activity in the Land Access Activity Notice (Notice) issued by Optus under clause 17 of Schedule 3 to the Telecommunications Act 1997 (Act).

This is because, in my view, the proposed land access activity on the Gateway Bridge is not the "installation of a facility" authorised by clause 6 of Schedule 3 to the Act

21    As I have already observed, the decision of the TIO in respect of Queensland Motorways’ objection was in the same terms.

22    The reason for the Decision was as follows:

I am not satisfied the proposed activity on the Gateway Bridge itself is the "installation of a facility" authorised by clause 6 of Schedule 3 to the Act. This is because the installation is neither:

(a)    installation of a facility that is "ancillary" to a low-impact facility, within the meaning of clause 3.1(4) of the Low-impact Facilities Determination 2018 (Cth) (Determination); or

(b)    an activity that is "ancillary or incidental" to the installation of a low-impact facility within the meaning of Part 3 of the Determination.

23    The TIO noted that cl 6(1)(b) of Sch 3 to the Act provides that a carrier may carry out the installation of a facility if the facility is a low-impact facility under the Determination. However the TIO was not satisfied that the installation of the cable on the Bridge was a low-impact facility.

24    Before the TIO it was not in dispute that cables proposed to be installed on the Approaches were low-impact facilities. In respect of the cable on the Bridge itself, the TIO noted the arguments of Optus that:

    cl 3.1 of the Determination provides that a facility that is "ancillary" to a facility defined as a low-impact facility is also a low-impact facility, if it is necessary for the operation or proper functioning of the low-impact facility; and

    the part of the cable route on the Bridge itself was necessary for the cabling installed in the Approaches to function, and was therefore an ancillary facility.

25    The TIO referred to s 3.1 of the Determination, which relevantly provides:

(4) A facility that is ancillary to a facility covered by subsection (1) (a low-impact facility) is also a low-impact facility only if it is:

(a) necessary for the operation or proper functioning of the low-impact facility; or

…

26    The TIO considered the legislative history of s 3.1(4), noting that it was enacted in 1999 and has subsequently been amended to add additional circumstances where a facility that is ancillary to a low-impact facility is also a low-impact facility.

27    The TIO continued:

In Director of Housing v Hutchison 3G Australia Pty Ltd [2003] VSC 310, the Victorian Supreme Court of Appeal said, among other things:

•    in subsection 3.1(4), the adjective "ancillary" in not defined in the Act or Determination and its natural and ordinary meaning appears from the definition in the Macquarie Dictionary as "accessory; auxiliary", and

•    it is clear that the issue as to whether an object is an ancillary facility only arises if it can be found to be ancillary to a low-impact facility.3

I understand this to mean that for the cable on the Gateway Bridge to be a low-impact facility under subsection 3.1(4) there is a two-stage test. This test requires:

•    Question One: first, determining whether the facility to be installed on the Gateway Bridge itself is an accessory or auxiliary to the cables on the Approaches; and

•    Question Two; only if the answer to Question One is yes, then determining whether the cable on the Gateway Bridge is necessary for the operation or proper functioning of cable on the Approaches.

In answering Question One in this test, I consider that there is some ambiguity about the meaning of the word "ancillary" and the synonyms “accessory” and "auxiliary" referred to in the Director of Housing case. Therefore, I have referred to extrinsic materials to resolve the ambiguity.

The Explanatory Statements to the 1999 and 2012 amendments to the 1997 Determination each provided some examples of facilities that are ancillary to a low-impact facility. Optus refers to the guidance in the Explanatory Statement to the 2012 Amendment, which added the text of subsection 3.1(4)(a):

The term "proper functioning” in paragraph 3.1(4)(a) is intended to cover a broad range of ancillary facilities which are installed to ensure a low-impact facility operates in a correct manner. There are many other examples of ancillary facilities that could be considered to fall within scope. For example, equipment that supports the efficient functioning of a low-impact facility (such as remote radio units or equipment that manages consumption of energy or other resources) is considered to be a facility which is for the proper operation of the low impact facility.

The Explanatory Statement to the current Determination provides some examples of facilities that are ancillary to a low-impact facility. For example "cabling leading from a low-impact antenna to a power source", "other associated equipment necessary for the operation of the antenna", "a radio shroud used to screen a new mobile base station" and "facilities such as fences or facility support designed to elevate a low-impact facility above potential flood levels in rural areas".

These Explanatory Statements indicate that a broad range of things could fall within the scope of subsection 3.1(4). However, none of the examples of ancillary facilities in these Statements are of the same form and function as the original low-impact facility.

I have also considered the decision of the Federal Court in Friday v Minister for Primary Industry and Resources [2021] FCA 794, which summarised cases that have interpreted the meaning of the word "ancillary". As well as ''auxiliary" or "accessory', the word has been held to have the meaning "supplemental", "subservient", "subordinate" or "incidental". As the particular statutory context of the use of the word "ancillary" is relevant, I have given limited weight to the meaning given to the word by the Court in these other cases.

I consider the cable on the Gateway Bridge is not ancillary to the cable on the Approaches, as it:

(a)     is not an "accessory" or “auxiliary" to the cable on the Approaches,

(b)     would form (as Optus says) a "continuous optic fibre cable", so is a facility of the same form and function as the cable on the Approaches, and

(c)     is not within other meanings of the word "ancillary" given by the Courts.

As the answer to Question One is no, the installation of cable in the Gateway Bridge is not a low-impact facility under subsection 3.1(4). This also means it is not necessary for me to answer Question Two.

28    The TIO then considered the question whether a cable installed on the Bridge would fall within the meaning of “installation”. The TIO observed that cl 2 of Sch 3 to the Act defined “installation” to include any activity that was “ancillary or incidental” to the installation of the facility. The TIO continued:

Clause 6(1)(6) of Schedule 3 provides that a carrier may carry out the "installation" of a facility if the facility is a low-impact facility under the Determination. The extended meaning of "installation" in clause 2 has the effect that a carrier is authorised to install a facility that is "ancillary or incidental" to the installation of a low-impact facility.

I consider the cable on the Gateway Bridge would not be authorised to be installed under the extended meaning of installation in clause 2, as:

(a)     the cable is not "ancillary" to a low-impact facility, for the same reasons as set out above when considering subsection 3.1(4)

(b)     the activity is not "incidental" to the installation of the cable on the Approaches. The ordinary meaning of "incidental" appears from the definition in the Macquarie Dictionary to be "happening or likely to happen in fortuitous or subordinate conjunction with something else" or "incurred casually and in addition to the regular or main amount". The installation of the cable on the Gateway Bridge would be an integral part of the proposed activity, it would not be fortuitous, subordinate or incurred casually.

29    In relation to Queensland Motorway’s objection, the TIO concluded:

As the proposed activity on the Gateway Bridge itself is not the installation of a facility authorised under clause 6 of Schedule 3, I do not have jurisdiction to deal with the Transurban objections to this proposed activity. Optus will have no right to install this facility.

30    The TIO reached an equivalent conclusion in respect of TMR’s objection.

Evidence

31    All parties filed evidence in the proceedings, some of which was the basis of objection although I admitted some evidence provisionally subject to any determination on various issues of construction. As events unfolded, however, it became plain that fundamental factual issues were not in dispute. The key issue before the Court was one of statutory construction.

32    Accordingly before turning to the submissions of the parties it is convenient to examine the relevant legislation.

Relevant Legislative Provisions

Telecommunications Act

33    The objects of the Telecommunications Act are as follows:

3 Objects

(1)    The main object of this Act, when read together with Parts XIB and XIC of the Competition and Consumer Act 2010, is to provide a regulatory framework that promotes:

(a)    the long-term interests of end-users of carriage services or of services provided by means of carriage services; and

(b)     the efficiency and international competitiveness of the Australian telecommunications industry; and

(c)     the availability of accessible and affordable carriage services that enhance the welfare of Australians.

…

(emphasis added).

34    Section 7 of the Telecommunications Act defines “facility” in the following terms:

facility means:

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

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

Schedule 3

35    Schedule 3 of the Telecommunications Act sets out the carriers’ powers and immunities in relation to inspection (Division 2), installation (Division 3) and maintenance (Division 4). Relevant to this matter are the powers and immunities relating to installation provided in Sch 3, cl 5:

5 Inspection of land

(1)    A carrier may, for the purposes of determining whether any land is suitable for its purposes:

(a)     enter on, and inspect, the land; and

(b)     do anything on the land that is necessary or desirable for that purpose, including, for example:

(i)     making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and

(ii)     felling and lopping trees and clearing and removing other vegetation and undergrowth; and

(iii)     closing, diverting or narrowing a road or bridge; and

(iv)     installing a facility in, over or under a road or bridge; and

(v)     altering the position of a water, sewerage or gas main or pipe; and

(vi)     altering the position of an electricity cable or wire.

(2)     A carrier may, for the purpose of surveying or obtaining information in relation to any land that, in the carrier’s opinion, is or may be suitable for its purposes:

(a)     enter on any land; and

(b)     do anything on the entered land that is necessary or desirable for that purpose, including, for example:

(i)     making surveys and taking levels; and

(ii)     felling and lopping trees and clearing and removing other vegetation and undergrowth; and

(iii)     closing, diverting or narrowing a road or bridge; and

(iv)    installing a facility in, over or under a road or bridge; and

(v)     altering the position of a water, sewerage or gas main or pipe; and

(vi)     altering the position of an electricity cable or wire.

(3)     A reference in this Part to engaging in activities under this Division includes a reference to exercising powers under this Division.

36    Schedule 3 cl 6(1) and cl 6(2) of the Telecommunications Act provide:

Division 3 – Installation of facilities

6 Installation of facilities

(1)     A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:

…

(b)    the facility is a low-impact facility (as defined by subclause (3)); or

…

Note:     If the installation of a facility is not authorised by this clause, the installation may require the approval of an administrative authority under a law of a State or Territory.

(2)     If subclause (1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity:

  (a)     enter on, and occupy, any land; and

(b)     on, over or under the land, do anything necessary or desirable for those purposes, including, for example:

(i)     constructing, erecting and placing any plant, machinery, equipment and goods; and

(ii)     felling and lopping trees and clearing and removing other vegetation and undergrowth; and

(iii)     making cuttings and excavations; and

(iv)     restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material; and

(v)     erecting temporary workshops, sheds and other buildings; and

(vi)    levelling the surface of the land and making roads.

…

37    Schedule 3 cl 2 of the Telecommunications Act defines “installation” as:

installation, in relation to a facility, includes:

(a)     the construction of the facility on, over or under any land; and

(b)     the attachment of the facility to any building or other structure; and

(c)     any activity that is ancillary or incidental to the installation of the facility (for this purpose, installation includes an activity covered by paragraph (a) or (b)).

38    Schedule 3 cl 2 defines “land” as:

land includes submerged land (but does not include submerged land that is beneath Australian waters within the meaning of Schedule 3A).

39    Schedule 3 cl 17 relevantly imposes the obligation on the carrier to give notice of its intention to engage in an activity under Divisions 2, 3 or 4 in respect of the installation of a facility to the “owner” and where relevant, the “occupier” of the land. Clause 17(4) provides that the notice must be given at least 10 business days before the carrier begins to engage in the activity.

40    Schedule 3 cl 15 of the Telecommunications Act provides that the carrier must comply with a code of practice which may be made by the Minister by legislative instrument.

Telecommunications Code

41    Chapter 4 Pt 5 of the Code contains “general notification requirements and objections to low-impact facility activities”. The simplified outline to Part 5 explains:

Simplified outline of Part 5

This Part sets out rules for notifying owners and occupiers of land about a low-impact facility activity. It also sets out rules for the owners and occupiers to object to the activity.

The effect of this Part is that:

•    The carrier must notify owners and occupiers about low-impact facility activities in accordance with the Act and this Code

•    An owner or occupier has an opportunity to object to the activity

•    The carrier must try to resolve the objection by agreement

•    If there is no agreement, the objection can be referred to the Telecommunications Industry Ombudsman.

42    Sections 4.29-4.32 of the Code provide:

4.29 Objection to low-impact facility activity

(1)     If a carrier gives notice to an owner or occupier of land of its intention to engage in a low-impact facility 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.

4.30 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.

4.31 Time for giving objection to carrier

The objection must be given to the carrier at least 5 business days before the carrier proposes to engage in the low-impact facility activity.

4.32 Activity after objection

If the objection complies with sections 4.29 to 4.31, the carrier must not engage in the low-impact facility activity unless 1 of the following situations happens:

Situation 1     The objection is resolved by an agreement between the carrier and objector.

Situation 2     A request to refer the objection to the Telecommunications Industry Ombudsman is not received by the carrier within the 5 business days mentioned in section 4.36.

Situation 3     The Telecommunications Industry Ombudsman deals with the objection without giving a direction to the carrier, and the Ombudsman informs the carrier in writing of that outcome.

Situation 4     The Telecommunications Industry Ombudsman gives a direction to the carrier.

43    Chapter 4 Pt 5 Div 5 of the Code applies if:

4.35 Application of Division 5

This Division applies if:

(a)     the objection is not resolved by agreement between the carrier and objector; and

(b)     the objector is not satisfied with the carrier’s response to the objection.

44    Sections 4.36 and 4.36A of the Code contain provision for the referral of an objection to the TIO:

4.36 Request to refer objection to Telecommunications Industry Ombudsman

(1)     Within 5 business days after the objector receives the carrier’s response to the objection, the objector may ask the carrier, in writing, to refer the objection to the Telecommunications Industry Ombudsman.

(2)     The carrier must comply with the request within 10 business days after receiving it.

Note     If the objector does not ask the carrier to refer the objection, the carrier may engage in the low-impact facility activity: see s 4.32, situation 2.

4.36A Referral of matters by carrier to Telecommunications Industry Ombudsman

(1)     The carrier may refer a matter to which this Division applies to the Telecommunications Industry Ombudsman only if:

(a)     the carrier has made reasonable efforts to resolve the matter within 10 business days after commencing consultation on the matter; and

(b)     the carrier’s efforts have been conducted in good faith.

(2)     Where a carrier refers a matter to the Telecommunications Industry Ombudsman, the carrier must:

(a)     provide to the Ombudsman:

(i)     evidence of the attempts made by the carrier to resolve the matter; and

(ii)     a copy of the notice given to the owner or occupier under section 4.23; and

(b)     give written notice to the objector within 2 business days after referring the matter.

45    Section 4.37 of the Telecommunications Code continues:

4.37 Compliance with directions of Telecommunications Industry Ombudsman

(1)     Subject to this section, if the Telecommunications Industry Ombudsman gives a direction to the carrier about the way in which the carrier should engage in the low-impact facility activity, the carrier must comply with the direction.

(2)     This section applies only if the objection which is the subject of the direction comes, in whole or in part, within the jurisdiction of the Telecommunications Industry Ombudsman.

Note 1     If the Telecommunications Industry Ombudsman deals with the objection without giving a direction to the carrier, and the Ombudsman informs the carrier in writing of that outcome, the carrier may engage in the land entry activity: see s 4.32, situation 3.

46    In relation to s 4.37 of the Telecommunications Code, O’Bryan J held in OPENetworks Pty Ltd v Myport Pty Ltd [2019] FCA 486:

[40]    Second, the power conferred on a carrier by clause 6 of Schedule 3 to the Telco Act is relevantly confined to the installation a low-impact facility. Likewise, the requirements of Chapter 4 of the Telco Code, and the jurisdiction of the TIO to deal with installation activities, is conditional on those activities being the installation of a low-impact facility or an activity for purposes in connection with the installation of a low-impact facility. Whether a carrier’s proposed facility is a low-impact facility will involve questions of fact and law. In respect of the power of the TIO to deal with an objection under Divisions 4 and 5 of the Telco Code, the question can be characterised as a jurisdictional fact in the sense that, if the proposed activity is not a low-impact facility activity, the TIO will have no jurisdiction to deal with the objection. Further, the carrier will have no right to install the facility under clause 6 of Schedule 3 to the Telco Act.

(emphasis added).

The Determination

47    Schedule 3, cl 6(3) of the Telecommunications Act provides:

(3)     The Minister may, by legislative instrument, determine that a specified facility is a low-impact facility for the purposes of this clause. The determination has effect accordingly.

Note:     For specification by class, see subsection 13(3) of the Legislation Act 2003.

48    The Determination as enacted in 2018 succeeded earlier legislation in place.

49    I note that the Low-impact Facilities Determination 1997 (Cth) (1997 Determination) was made on 29 June 1997 and came into effect on 1 July 1997.

50    The 1997 Determination was amended in 1999 and 2011. The 1999 amendments relevantly introduced s 3.1(4), which at that time provided:

(4)     A facility that is ancillary to a facility covered by subsection (1) is also a low impact facility only if it is installed, or to be installed, solely to ensure the protection or safety of:

(a)     the low-impact facility; or

(b)     persons or property in close proximity to the low-impact facility.

51    Further amendments were made in 2012 (2012 Determination). The Explanatory Statement to the Telecommunications (Low Impact Facilities) Determination 1997 (Amendment No. 1 of 2012) (Cth) (Explanatory Statement 2012 Determination) provided:

Purpose

The purpose of the Telecommunications (Low-impact Facilities) Determination 1997 (Amendment No.1 of 2012) (the Amending Determination) is to amend the Existing Determination to clarify that ancillary facilities which are necessary for the operation or proper functioning of a facility described in the Schedule to the Existing Determination are low-impact facilities for the purpose of Schedule 3 to the Act.

…

Schedule – Amendments

Item [1] – Subsection 3.1(4)

Item 1 of the Schedule to the Amending Determination inserts a replacement subsection 3.1(4) into the Existing Determination. In addition to the existing class of ancillary facilities (i.e. those which are installed, or to be installed, solely to ensure the protection or safety of a low-impact facility specified in an item in the Schedule to the Existing Determination) a new class of ancillary facilities is specified. The new class covers facilities which are necessary for the operation or proper functioning of the low-impact facility.

For example, when a small radiocommunications antenna is installed (that is a low-impact facility specified in Part 1 of Schedule 1 to the Existing Determination), cabling leading from the antenna to a power source, and other associated equipment necessary for the operation of the antenna, will each be treated as low-impact facilities.

The term ‘proper functioning’ in paragraph 3.1(4)(a) is intended to cover a broad range of ancillary facilities which are installed to ensure a low-impact facility operates in a correct manner. There are many other examples of ancillary facilities that could be considered to fall within scope. For example, equipment that supports the efficient functioning of a low-impact facility (such as remote radio units or equipment that manages consumption of energy or other resources) is considered to be a facility which is for the proper operation of the low-impact facility. (The aforementioned example is not intended to limit the types of things which could fall within the scope of paragraph 3.1(4)(a)).

Typically, ancillary facilities and equipment which are necessary for the operation or proper functioning of a low-impact facility have been installed by carriers in reliance of subclause 6(2) of Schedule 3 to the Telecommunications Act 1997 (the Act). That subclause allows a carrier to enter onto land to install the low-impact facility and ancillary facilities critical to operation of the low-impact facility. In Hutchison 3G Australia Pty Ltd v Director of Housing [2004] VSCA 99 the installation of supporting poles and cabling (which were not individually specified in the Existing Determination), as part of the installation of antennas (specified low-impact facilities) was held to be authorised under Schedule 3 because they were “necessary or desirable” for the purpose of carrying out the installation of the antennas (i.e. the low impact facility), in the context of subparagraph 6(2)(b)(i) of Schedule 3 to the Act.

Notwithstanding the scope of subclause 6(2), as judicially considered, the amendment to subsection 3.1(4) of the Existing Determination is intended to provide greater clarity for industry as to the status of these facilities. New paragraph 3.1(4)(a) is intended to make it abundantly clear that ancillary equipment and facilities intended for the proper operation or functioning of a low-impact facility are also low-impact facilities. This amendment is consistent with the existing operation of Schedule 3 to the Act, and the objects of the Act.

52    The current Determination, being the Telecommunications (Low-impact Facilities) Determination 2018 (2018 Determination) was made under cl 6(3) of Sch 3 to the Telecommunications Act 1997 in 2018. The Explanatory Statement to the Determination stated that it essentially remade the 1997 Determination, “with some minor modifications”. The 2018 Determination expanded “the list of low-impact facilities and the circumstances in which some facilities are to be taken as low-impact”. The expansion was said to, “allow carriers to construct and maintain their networks more efficiently and at a lower cost.”

53    The Explanatory Statement to the 2018 Determination relevantly stated:

PART 3 – LOW-IMPACT FACILITIES

…

Section 3.1    Facilities

…

Subsection (4) establishes that an ancillary facility may be a low-impact facility in certain circumstances. Those circumstances are where the ancillary facility is:

•    Necessary for the operation or proper functioning of the low-impact facility. For example, cabling leading from a low-impact antenna to a power source, and other associated equipment necessary for the operation of the antenna.

•    A new shroud installed over a low-impact facility that is intended to minimize the visual amenity impact of the low-impact facility and is colour-matched to the background. For example, a radio shroud used to screen a new mobile base station.

•    Used to protect a telecommunications facility from damage, and technicians and the general public from injury. For example, facilities such as security fences or facility supports designed to elevate a low-impact facility above potential flood levels in rural areas.

54    Section 3.1 of the Determination provides the starting point for determining what is a low impact facility:

3.1 Facilities

(1)     A facility described in column 2 of an item in the Schedule is a low-impact facility only if it is installed, or to be installed, in an area mentioned in column 3 of the item.

(2)     However, the facility is not a low-impact facility if the area is also an area of environmental significance.

(3)     For subsection (1), trivial variations for a facility mentioned in column 2 are to be disregarded.

(4)     A facility that is ancillary to a facility covered by subsection (1) is also a low-impact facility only if it is:

(a)     necessary for the operation or proper functioning of the low-impact facility; or

(b)     a shroud installed over a low-impact facility, where the shroud is intended to minimise the visual amenity impact of the low-impact facility and is colour-matched to its background; or

(c)     installed, or to be installed, solely to ensure the protection or safety of:

(i)     the low-impact facility; or

(ii)     a facility covered by paragraph (a); or

(iii)     persons or property in close proximity to the low-impact facility.

(emphasis added)

55    Relevantly, pt 4 of the Schedule for the purposes of s 3.1 provides:

Schedule – Facilities and areas

(section 3.1)

…

Part 4 – Underground facilities (for fixed-line networks)

SUBMISSIONS OF THE PARTIES

Optus

56    In summary, Optus contended that the TIO fell into legal error when making the Decision:

(1)    First, when the TIO found that a facility could not be ancillary to another facility if the two facilities were, “of the same form and function”. Optus argued that pursuant to the Determination, a facility can be “ancillary” to another facility in circumstances where it is auxillary or provides additional support of the same type. Optus contended that the cable across the Bridge was incapable of being precisely the same form and function as the facilities in the Approaches as it does not fall within any of the categories of low-impact facility set out in s 3.2 of the Determination. Fundamentally however, Optus contended that this limitation was not found in the text of the Determination and ran counter to the statutory purpose of accommodating a broad range of ancillary facilities, including in light of the circumstances towards which the Telecommunications Act and the Determination are directed.

(2)    Second, the TIO fell into legal error by failing to construe the meaning of “ancillary” in light of s 3.1(4)(a) of the Determination, and failing to give a purposive or beneficial interpretation to the broader category of facilities intended to be encompassed by s 3.1(4)(a). Optus contended that the when the TIO found that the cable on the Bridge did not fall within other meanings of the word “ancillary”, it meant that it was not “supplemental”, “subservient”, “subordinate” or “incidental” as described earlier in the Decision. While the TIO gave limited weight to these meanings, its finding precluded it from giving broad meaning to the word “ancillary” commensurate with a facility that of its very nature was “necessary for the operation or proper functioning” of the other low-impact facility. Optus made the following oral submissions regarding the construction point:

(a)    The word “ancillary” should be construed in accordance with its ordinary meaning in light of the statutory context having regard to the express authorisation of the installation of ancillary facilities in derogation of the rights of property owners or occupiers in order to achieve efficient and affordable carrier services.

(b)    The ordinary meaning of “ancillary” in this context included a facility that provided auxiliary support, aiding or assisting another low-impact facility. Optus submitted that this was precisely the nature of the cables across the Bridge, which assist the cables in the Approaches connect to each other and provide auxiliary support to another impact in the immediate vicinity, being the existing underground backbone cable at Bulimba.

(c)    No artificial limitations or glosses ought be placed upon the meaning of the word ancillary. The requirement that the facility be of the same form and function was not consistent with the statutory language, and should not be read into the 2018 Determination. Additionally a requirement that the low-impact facility be on the same land or be installed at the same time was not in the language of the Determination.

(d)    The word “ancillary” should be understood in its statutory context, namely, the words “necessary for the operation or proper functioning”. If something was so significant that the facility could not properly function without it, it was “ancillary”.

(3)    Optus also argued that regardless of the finding in relation to legal error, the TIO’s decision concerning the absence of a jurisdictional fact was amenable to review by the Court. Optus argued that the TIO erred in determining a jurisdictional fact, being whether Optus’ proposed activity was authorised by cl 6 of Sch 3 of the Telecommunications Act, because it was a precondition to the exercise of jurisdiction of the TIO under Pt 5, Div 5 of the Code, and the TIO failed to exercise its jurisdiction.

57    Optus argued that the Proposed Activity would form part of Optus’ “backbone” network of fibre optic cable, and would provide a new crossing over the Brisbane River. Optus argued further that the broader section of an immediately proximate and existing “backbone” network has been characterised as a “low impact facility”. Optus contended that the Proposed Activity would provide network resiliency by improving route diversity. As a consequence, the cable Optus proposed to install in the Bridge satisfied the requirements of s 3.1(4)(a) because the cables were ancillary, in the sense of being auxiliary and giving support or assistance to the low-impact facilities in the immediate environs of the Bridge.

58    Optus submitted that the cables were also necessary for proper operation and/or functioning of the existing low-impact backbone network, which lacked diversity in location and was vulnerable to outages caused by flooding.

59    Optus further submitted that the decision in State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158 (the Kidd Bridge Case), which was handed down during the hearing of this proceeding, did little to clarify and resolve the questions of statutory construction to be determined in this matter.

Queensland Motorways and the State

60    Queensland Motorways and the State made separate detailed submissions in respect of the arguments advanced by Optus.

61    Materially however they both submitted, in summary:

    The proposed cable across the Bridge could not be described as “ancillary” to low-impact facilities installed in either or both of the Approaches to the Bridge;

    The proposed cable across the Bridge could not be described as an “activity” either ancillary or incidental to the low-impact facilities installed in either or both of the Approaches to the Bridge;

    The legislative intention in enacting the 2018 Determination was relevant to interpretation of the Determination, but could not be elevated above the language of the Determination itself;

    Specifically in this case, as the High Court explained in Coco v R (1994) 179 CLR 427 at 436, in construing legislative provisions and to the extent of any ambiguity, statutory authority for tortious conduct must be clearly expressed in unmistakeable and unambiguous language; and

    There was no error in the TIO characterising a proposed cable on the Bridge as a facility of the same form and function as the cable on the Approaches, and taking that factor into account in finding that the proposed cable was not ancillary to any cabling installed in the Approaches. A fair reading of the TIO’s reasons was that it considered the cable proposed to be installed across the Bridge, and the cables proposed for the Approaches, to be separate and freestanding elements of the same system.

consideration

62    Optus relied on two grounds of review, as follows:

1.    In making each of JD1 and JD2, the TIO made an error of law for the purposes of section 5(1)(f) of the ADJR Act and/or fell into jurisdictional error in wrongly construing her jurisdiction and in failing to exercise her jurisdiction.

Particulars

a.    The existence of a ‘proposed activity’ which would constitute the ‘installation of a facility’ authorised by clause 6 of Schedule 3 of the Telco Act was a jurisdictional fact, because it was a pre-condition to the existence of jurisdiction by the TIO under Part 5, Division 5 of the Code.

b.    The TIO erred in making the following incorrect findings in respect of this jurisdictional fact:

i.    That the Proposed Activity on the Gateway Bridge is not the installation of a facility authorised by clause 6 of Schedule 3 of the Telco Act; and

ii.    That the Proposed Activity on the Gateway Bridge is not the installation of a facility that is ‘ancillary’ to a low-impact facility, within the meaning of section 3.1(4) of the Determination.

2.    In making each of JD1 and JD2, the TIO made an error of law for the purposes of section 5(1)(f) of the ADJR Act and/or a jurisdictional error in wrongly construing the phrase ‘installation of a facility’ in clause 6 of Schedule 3 of the Telco Act.

a.    The TIO erred in her construction of the word ‘ancillary’ in section 3.1(4) of the Determination.

b.    Further and/or in the alternative to particular (a), the TIO failed to have regard to the operation of Part 5 Division 5 of the Code and failed to view the Proposed Activity the subject of the respective objections as a whole; namely, as including the installation of fibre optic cable on both (i) the Gateway Bridge and (ii) the Approaches.

63    It does not appear to be in dispute that the present case turns on the correctness or otherwise of the TIO’s findings concerning a jurisdictional fact, namely whether the Proposed Activity was the “installation of a facility” authorised by cl 6 of Sch 3 to the Telecommunications Act. It is common ground that:

    At all material times Optus was a carrier within the meaning of the legislation;

    Optus seeks to carry out the installation of a facility – being cabling on the Bridge – for purposes connected with the supply of its carriage services;

    Pursuant to cl 6(1)(b) of the Telecommunications Act, Optus may do so if the facility it seeks to install (namely cabling) is a low-impact facility as defined by cl 6(3) of that Act;

    The cabling in question can be regarded as low-impact facilities is if it falls within the scope of s 3.1(4)(a) of the Determination. This is because a facility that is ancillary to a low-impact facility covered by s 3.1(1) of the Determination is also a low-impact facility if it is necessary for the operation or proper functioning of the low-impact facility covered by s 3.1(1) (s 3.1(4)(a) of the 2018 Determination); and

    Alternatively the installation of the cabling in question could fall within the extended definition of “installation, in relation to a facility” within the purview of cl 2 of Sch 3 to the Telecommunications Act, if its installation constituted any activity that was ancillary or incidental to the installation of another low-impact facility (in this case the installation of cables in the Approaches).

(1) Did the TIO err in finding that the installation of cabling on the Bridge was not “ancillary” to a “low-impact facility” within the meaning of s 3.1(4) of the 2018 Determination, and thus did not satisfy cl 6(1)(b) and cl 6(3) of Sch 3 of the Telecommunications Act on that basis?

64    Relevantly, a facility can be a low-impact facility if it is a facility that is ancillary to an existing low-impact facility covered by subsection 3.1(1) of the 2018 Determination, and only then if it is necessary for the operation or proper functioning of the first low-impact facility (s 3.1(4)(a) of the 2018 Determination).

65    The word “ancillary” is not defined in the 2018 Determination. However the plain meaning of the word can be identified from its definition in the Macquarie Dictionary namely:

1.    accessory; auxiliary.

66    In turn, “accessory” as an adjective is defined as:

4.    contributing to a general effect; subsidiary

67    “Auxiliary” is defined as:

1.    giving support; helping; aiding; assisting.

68    It follows that for a facility to be “ancillary” it is necessary that it be subordinate to, supplementary of, or supportive of a primary facility.

69    I do not accept Optus’ submission that an ancillary facility can be of the same type, and form the same tasks, as the facility to which it is allegedly “ancillary”, but in an additional, supplementary or reserve form. I agree with the respondents that such a submission cannot be sensibly reconciled with the ordinary meaning of “ancillary”.

70    That this is so is supported by reference to the examples of s 3.1(4) low-impact facilities given in the Explanatory Statement to the 2018 Determination, namely:

(a)     cabling leading from a low-impact antenna to a power source, and other associated equipment necessary for the operation of the antenna;

(b)     a radio shroud used to screen a new mobile base station; and

(c)     facilities such as security fences or facility supports designed to elevate a low-impact facility above potential flood levels in rural areas.

71    Each of these are examples of facilities which play a supporting role to the primary low-impact facility. As the respondents submitted, a power cable is not simply associated with an antenna, it supports the antenna by providing electricity for the antenna to function. The power cable cannot transmit radio signals like an antenna, and, cannot perform the functions of an antenna. Even though the cabling is necessary for the operation of the antenna, it merely supports, and is subservient to, the antenna’s functions.

72    Optus seeks to install single mode optic fibre cable through ducts and cable trays inside a tunnel within the Bridge, being a continuous optic fibre cable, which is a facility of the same form and function as the cable on the Approaches. I agree with the respondents that such cable is not ancillary, in the sense of being “accessory” or “auxiliary”, to the cable in the Approaches, or indeed any cabling in the Optus network. Rather cabling installed in the Bridge would be separate and freestanding elements of the same telecommunications system.

73    Second, s 3.1(4) of the 2018 Determination qualifies an ancillary facility by reference to paras (a). To be a low-impact facility within the meaning of these provisions the relevant facility must be both ancillary and necessary to the operation or proper functioning of a low-impact facility. Optus submitted that the proposed cabling was ancillary, for reasons including that the cables would form part of Optus’ “backbone” network of fibre optic cable, would provide a new crossing over the Brisbane River, be part of a broader section of an immediately proximate and existing “backbone” network, and provide network resiliency, in the form of improved route diversity. In my view these submissions support the proposition that, at least from Optus’ perspective, the cables across the Bridge are “necessary” to the efficient functioning of the Optus network (although I note that this argument is disputed by the respondents). However the question whether the cables are “necessary” or otherwise to the Optus network need not be determined by me at this stage, because such arguments do not support the proposition that the cables are ancillary to any low-impact facilities.

74    Third, as explained in the Explanatory Statement to the 2018 Determination, carriers have power to enter land and exercise powers to install a facility on that land if the facility was a low-impact facility, being as follows:

Carrier powers and immunities give telecommunications carriers the ability to enter land and install and maintain some types of telecommunications network facilities. They are critical to the efficient construction and maintenance of telecommunications networks, which are a vital component of Australia’s critical infrastructure, and immensely important to Australians’ everyday lives. They minimise the regulatory burden on carriers so that they can quickly and cost-effectively meet the community’s need for access to affordable, fast and reliable telecommunications services.

(emphasis added)

75    As Queensland Motorways submitted, the power of carriers to enter land and conduct installation and maintenance relates to some types of telecommunications network facilities. Carriers do not have carte blanche to install and maintain all types of telecommunications facilities on land either owned or controlled by others. For Optus to enter the Bridge and install the cables, it must demonstrate that it has a basis for doing so, in this case that the cabling is ancillary.

76    Finally, while noting the importance of the efficient construction and maintenance of telecommunications network facilities as recognised by the 2018 Determination, the policy underpinning the 2018 Determination cannot be elevated above the plain language of the Determination to the extent that it allows access to property inconsistent with that language. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language: Coco v R [1994] HCA 15; (1994) 179 CLR 427 at [8] Hurstville City Council v Hutchison 3G Australia Pty Ltd (2003) 127 LGERA 95; State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158 at [19]. Again, notwithstanding Optus’ submissions concerning the importance of the proposed facilities to its entire network, those facilities are not “ancillary”. I also accept the submission of the State that far from requiring a beneficial construction in favour of carriers, the rules of interpretation, including the principle in Coco, direct that ambiguity or constructional choice are to be resolved in the way that least intrudes upon the rights of the owners and occupiers of the land.

77    I am satisfied that the TIO did not err in finding that the installation of cabling on the Bridge was not “ancillary” to a “low-impact facility” within the meaning of s 3.1(4) of the 2018 Determination, and thus does not satisfy cl 6(1)(b) and cl 6(3) of Sch 3 of the Telecommunications Act on that basis.

(2) Did the TIO err in finding that the proposed cable on the Bridge did not fall within the extended meaning of “installation” in cl 2 of Sch 3 to the Telecommunications Act, and thus did not satisfy cl 6(1)(b) of Sch 3 on that basis?

78    The alternative argument advanced by Optus was that the proposed works fell within the definition of “installation” in cl 2 of Sch 3 of the Telecommunications Act. Relevantly, installation, in relation to a facility, is defined by that clause to include:

(a) the construction of the facility on, over or under any land; and

(b) the attachment of the facility to any building or other structure; and

(c) any activity that is ancillary or incidental to the installation of the facility (for this purpose, installation includes an activity covered by paragraph (a) or (b)).

79    In particular, Optus submitted that:

    The cabling on the Bridge was “ancillary” to the installation of the cabling on the Approaches; and

    The cabling on the Bridge was also “incidental to” the cabling on the Approaches, within the ordinary meaning of that phrase, given that the cabling on the Bridge in the existing conduit was an incident of laying down the cabling on the Approaches and establishing a new route.

80    I have already discussed the meaning of “ancillary” in the context of s 3.1(4) of the 2018 Determination and cl 6(1)(b) and cl 6(3) of Sch 3 of the Telecommunications Act. There is no reason to find that ancillary has a different meaning in the cl 2 of Sch 3 of the Telecommunications Act.

81    “Incidental” is defined by the Macquarie Dictionary as follows:

adjective 1. happening or likely to happen in fortuitous or subordinate conjunction with something else.

2. incurred casually and in addition to the regular or main amount: incidental expenses.

–noun 3. something incidental, as a circumstance.

4. (plural) minor expenses.

–phrase 5. incidental to, liable to happen in connection with; naturally appertaining to.

82    Optus submitted that the proposed cabling across the Bridge was incidental to the cables and associated infrastructure in the Approaches as part of the new route intended to be added to the existing “backbone” network. Optus submitted further that installation of the cabling on the Bridge alone – in the absence of the installation of cabling on the Approaches – served no independent purpose.

83    The respondents submitted that the proposed cabling did not fall within the definition of “installation” in cl 2 of Sch 3 of the Telecommunications Act because, as with the ordinary meaning of the term “ancillary”, the word “incidental” connotes an activity that is not simply related to, but is “subordinate” to installation of the underground cables on the Approaches. As is clear from the material before the Court, the proposed cabling across the Bridge would not be “subordinate” to other cabling (including underground cabling in the Approaches), because:

    it would be of the same form and function as underground cables in the existing network and in those proposed for the Approaches; and

    the cabling in an Approach was not a “main” feature, to which the cabling across the Bridge would a mere addition.

84    In this respect I note evidence given in the proceedings by Mr Phillip Rae, the Associate Director, Enterprise Transport Planning, Internet Protocol (IP) Network Engineering in Optus including:

15.    The Proposed Activity would form part of what is described as Optus' "backbone" network of fibre optic cable, connecting directly to Optus' Rochedale exchange and extending to Optus' Moorooka exchange, both of which are located south of the Brisbane River, to the network north of the Brisbane River.

16.    The Rochedale and Marooka [sic] exchanges are Optus' two main exchanges in Brisbane, which are each located to the south of the Brisbane River. They not only serve customers in Brisbane but all of Queensland. They also facilitate services for customers in other States through connectivity to Optus' Exchanges in the other States.

(affidavit sworn 13 July 2022)

85    In both affidavits sworn by him, Mr Rae spoke extensively of the Optus “backbone network”. In his second affidavit sworn 17 August 2022 Mr Rae described the proposed cable across the Bridge as its “Backbone Cable” (para [9], [11], [12], [14]).

86    Even accepting that the proposed cabling on the Bridge was to be installed as part of a new route, or intended to be added to the existing “backbone” network, and that the installation of the cabling on the Bridge would serve no purpose in the absence of the installation of the cabling on the Approaches, I do not accept that the proposed cabling could be described as either “ancillary” or “incidental” to the installation of the cabling on the Approaches.

87    The TIO found that the installation of the cable on the Bridge would be an integral part of the proposed activity, it would not be fortuitous, subordinate or incurred casually. The evidence of Mr Rae that the proposed cabling on the Bridge would form part of Optus’ “backbone network” supports that finding. In my view no error is evident in the TIO’s finding.

88    For completeness I also note the submission of Queensland Motorways that Optus’ contention that the activity of “installation” could include the construction of a separate facility does not fit the structure of Sch 3 cl 2 of the Telecommunications Act, in summary because:

    Sch 3 cl 2(a) and (b) of the Telecommunications Act define installation as an activity relating directly to the facility in question; that is, the construction of the facility, or the attachment of the facility to an existing structure.

    Sch 3 cl 2(c) should therefore be read as referring to an activity that is ancillary to the construction or attachment of “the facility” (the facility in question being the cabling in the Approaches).

    For example, the transportation of building materials from a road to precisely where the construction of the facility is occurring would be an “activity” for the purposes of Sch 3 cl 2. It would be a strange reading to suggest the “activity” could be the permanent construction of a separate facility that was not, of itself, a low-impact facility – which is what Optus contended.

    The construction of a low-impact facility, such as the power cabling for an antenna, would fall within cl 2(a). Sub-clause 2(c) hardly seems directed to the construction of separate facilities.

89    I respectfully accept this submission. I do not accept that the installation of cable in the Bridge would constitute an “activity” relevant to the cabling in the Approaches, for the purposes of Sch 3 cl 2 of the Telecommunications Act.

CONCLUSION

90    In the circumstances judicial review application cannot be sustained. The proposed cabling to be installed in the Bridge is not a “low-impact facility”. The TIO was correct to hold that it did not have jurisdiction to determine the objections by Queensland Motorways and the State to the Proposed Activity in the relevant LAANs.

91    It is appropriate to dismiss the amended originating application. The TIO has not sought its costs of the proceeding. Optus is to pay the costs of Queensland Motorways and the State, such costs to be taxed if not otherwise agreed.

Associate:

Dated:    9 August 2023