BESANKO AND MIDDLETON JJ:
1 We have had the considerable advantage of reading the draft reasons of Rangiah J where his Honour sets out the relevant background to the appeal and the legislative context and scheme regulating the provision of the telecommunications services in Australia.
2 The principal issue and ground 1 in the appeal is one of statutory construction. Clause 7(1) of Sch 3 of the Telecommunications Act 1997 (Cth) (the Act) provides that a carrier "may, at any time, maintain a facility". Clause 7(3)(e) provides that a reference to "maintenance" of a facility includes a reference to "the installation of an additional facility in the same location as the original facility". The issue is whether cl 7 authorises a carrier (in this case, Optus Fixed Infrastructure Pty Ltd (Optus)) to install its own fibre optics cables in the conduits installed and owned by a different carrier (in this case, NBN Co Ltd (NBN Co)), having obtained NBN Co's consent to do so. If it does, the consequence is that the consent of the owner of the property on which the facility is installed (in this case, the State of Queensland (the State)) is not required.
3 There are two other grounds of appeal. These other grounds of appeal assert that the Telecommunications Industry Ombudsman (the TIO) and the primary judge wrongly construed provisions of the Telecommunications Code of Practice 2018 (Cth) (the Code of Practice) concerning the State's objections to activities proposed to be done by Optus. We agree with the reasons of Rangiah J in relation to these two grounds of appeal.
4 However, with respect, we do not agree with his Honour's construction and views concerning the operation of cl 7 of Sch 3 of the Act as applicable to the facts of this case.
5 It is convenient to set out the structure and relevant clauses of Sch 3 although they are also to be found in the reasons of Rangiah J.
6 Schedule 3 is entitled "Carriers' powers and immunities". Schedule 3 provides three categories of powers and immunities which authorise carriers to engage in activities that would otherwise amount to trespass upon land.
7 The first category is under Div 2 of Sch 3, which consists only of cl 5. Clause 5 has the heading, "Inspection of Land". The clause confers power upon a carrier to enter on and inspect land, and do anything on the land that is necessary or desirable for the purposes of determining whether the land is suitable for the carrier's purposes, or surveying or obtaining information in relation to the land.
8 The second category is under Div 3 of Sch 3, which consists of cl 6. Clause 6 is entitled, "Installation of Facilities", and provides, relevantly:
(1) A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:
(a) the carrier is authorised to do so by a facility installation permit; or
(b) the facility is a low‑impact facility (as defined by subclause (3)); or
(c) the facility is a temporary facility for use by, or on behalf of, a defence organisation for defence purposes.
Note: If the installation of a facility is not authorised by this clause, the installation may require the approval of an administrative authority under a law of a State or Territory.
(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.
(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.
…
9 It can be seen that cl 6 authorises the installation of a facility in three circumstances, and adverts to the fact that any installation of a facility outside of the cl 6 authorisation may require approval under a State or Territory law (that is, the carrier would not benefit from the exemptions provided by Div 7, which we will come to later).
10 The third category is under Div 4, consisting of cl 7. That clause has the heading, "Maintenance of facilities", and provides:
(1) A carrier may, at any time, maintain a facility.
(2) A carrier may do anything necessary or desirable for the purpose of exercising powers under subclause (1), including (but not limited to):
(a) entering on, and occupying, land; and
(b) removing, or erecting a gate in, any fence.
(3) A reference in this clause to the maintenance of a facility (the original facility) includes a reference to:
(a) the alteration, removal or repair of the original facility; and
(b) the provisioning of the original facility with material or with information (whether in electronic form or otherwise); and
(c) ensuring the proper functioning of the original facility; and
(d) the replacement of the whole or a part of the original facility in its original location, where the conditions specified in subclause (5) are satisfied; and
(e) the installation of an additional facility in the same location as the original facility, where the conditions specified in subclause (6) are satisfied; and
(f) in a case where any tree, undergrowth or vegetation obstructs, or is likely to obstruct, the operation of the original facility - the cutting down or lopping of the tree, or the clearing or removal of the undergrowth or vegetation, as the case requires.
(3A) A reference in this clause to the maintenance of a facility (the original facility) includes a reference to the installation of a temporary facility (other than a tower within the meaning of subclause 6(5)), where the following conditions are satisfied:
(a) the temporary facility is installed to minimise disruption to the supply of a carriage service that might result from the maintenance of the original facility;
(b) in a case where it is practicable to achieve the purpose mentioned in paragraph (a) by installing the temporary facility on the land on which the original facility is located - the temporary facility is installed on that land;
(c) in a case where paragraph (b) does not apply, but it is practicable to achieve the purpose mentioned in paragraph (a) by installing the temporary facility on public land - the temporary facility is installed on public land;
(d) in a case where neither paragraph (b) nor (c) applies - the temporary facility is installed in the vicinity of the original facility.
(4) A reference in this clause to the maintenance of a facility does not include a reference to the extension of a tower. For this purpose, tower has the same meaning as in clause 4.
(5) For the purposes of paragraph (3)(d), the following conditions are specified:
(a) the levels of noise that are likely to result from the operation of the replacement facility are less than or equal to the levels of noise that resulted from the operation of the original facility;
(b) in a case where the original facility is a tower:
(i) the height of the replacement facility does not exceed the height of the original facility; and
(ii) the volume of the replacement facility does not exceed the volume of the original facility;
(c) in a case where the facility is not a tower:
(i) the volume of the replacement facility does not exceed the volume of the original facility; or
(ii) the replacement facility is located inside a fully enclosed building, the original facility was located inside the building and the building is not modified externally as a result of the replacement of the original facility; or
(iii) the replacement facility is located inside a duct, pit, hole, tunnel or underground conduit;
(d) such other conditions (if any) as are specified in the regulations.
(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.
(7) For the purposes of paragraphs (5)(a), (b) and (c) and (6)(a), (b) and (c), trivial variations are to be disregarded.
(8) For the purposes of subclauses (5) and (6):
(a) the measurement of the height of a tower is not to include any antenna extending from the top of the tower; and
(b) the volume of a facility is the apparent volume of the materials that:
(i) constitute the facility; and
(ii) are visible from a point outside the facility; and
(c) a structure that makes a facility inside the structure unable to be seen from any point outside the structure is to be treated as if it were a fully enclosed building.
11 It can be seen that cl 7 authorises carriers to enter and occupy land to "maintain" a facility. Subclauses (3)-(4) concern the definition of "maintenance". Clause 7(3) provides a non-exhaustive definition of "maintenance". Clause 7(3)(e) in particular operates with cl 7(1) to authorise installation of an additional facility in the same location as an original facility in certain circumstances.
12 Clause 2 of Sch 3 defines "installation" in relation to a facility to include:
(a) construction of a facility on, over or under any land;
(b) 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.
The running of fibre optical cable through the Kidd Bridge conduit would involve installation of a facility.
13 The principles of construction are not in dispute. The words of a statutory provision must be interpreted in light of their context and purpose. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, Kiefel CJ, Nettle and Gordon JJ emphasised that text, context and purpose must be construed together, observing at [14] :
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
14 In addition, the Full Court of this Court in Freedom Foods Pty Ltd v Blue Diamond Growers [2021] FCAFC 86; (2021) 286 FCR 437 (Freedom Foods) usefully summarised the principles at [27]-[30]:
[27] The meaning to be given to statutory instruments is their contextual meaning; that is, the text of the statute should be considered whilst at the same time having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ), [37]-[39] (Gageler J).
[28] Statutes speak as an entire instrument so it is necessary to consider the words in the context of the instrument as a whole and to construe them so as to ensure consistency between all provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; and Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320. The relevant context also includes legislative history and extrinsic materials: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39].
[29]. In using purpose to resolve ambiguity, the Court must not conjure a purpose that is more specific than the context discloses and then use that purpose to construe the legislation: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26]; and Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [21]. Further, the purpose must be one that "resides" in the "text and structure" of the legislation: Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [44]. Ultimately, "the fundamental duty of the Court is to give meaning to the legislative command according to the terms in which it has been expressed": Northern Territory v Collins (2008) 235 CLR 619 at [16].
[30] In an appropriate case where examination of contextual materials discloses an evident mischief that the statute was intended to remedy then the statute is to be read in that context: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
15 However, before we consider the text, context and purpose of the relevant part of the Act, it is important to keep in mind the facility that is proposed to be installed by Optus, its location and the agreement between NBN Co and Optus.
16 The work that Optus (a carrier) proposes to carry out is on the Kidd Bridge at Gympie in Queensland. That bridge is operated and managed by the State on public land, and is itself the property of the State. The work proposed is the installation of Optus' fibre optic cables across the Kidd Bridge in conduits owned by NBN Co (another carrier) and currently housing further facilities of NBN Co.
17 Optus does not have any existing cables or other telecommunications equipment in those conduits. Optus has the consent of NBN Co to insert the proposed new Optus cables into the conduits. It has no consent from the State as the owner of the Kidd Bridge. As between Optus and NBN Co, it is understood that the provisions of the Act relating to access to another carrier's facilities have been satisfied: see Pt 3 and Pt 5 of Sch 1 of the Act.
18 The State objected to what was proposed by Optus, under s 6.28 and s 6.29 of the Code of Practice made under the Act. Accompanying the objection was a draft licence agreement, which if executed would have permitted Optus to have installed the fibre optic cables on the Kidd Bridge. The main purpose of the licence agreement was so that Optus would accept bearing the cost of any relocation of its cables when roadworks requirements necessitated their movement. This was necessary because, as the parties accepted, there is no provision in the Act allowing the owner of a road or bridge to relocate a facility without the consent of the carrier and so the common law of trespass to property (the carrier's facilities) would apply.
19 However, the key premise is that, absent statutory authority, Optus installing additional fibre optic cable on the Kidd Bridge would, without the State's consent, be a trespass to its land. The practical effect of Optus' installation would be that the Kidd Bridge would be burdened with an extra tranche of cables and so the State would have to pay Optus, as owner of the cables, in the event of relocation necessitated because of roadworks. In interpreting the Act (and in particularly cl 7 of Sch 3) we should avoid a result that curtails the fundamental rights of others without "unmistakable and unambiguous language": see Coco v The Queen (1994) 179 CLR 427 (Coco) at 436-437. Previous judgments in relation to cl 7 have had regard to the principle in Coco (often referred to as the "principle of legality"): see Hurstville City Council v Hutchison 3G Australia Pty Ltd [2003] NSWCA 179; 200 ALR 308 at [59]-[60] and NBN Co Ltd v Pipe Networks Pty Ltd [2015] NSWSC 475; (2015) 295 FLR 256 (Pipe Networks) at [68]-[72] and [91]-[93]. Clause 7 should not be read as permitting Optus to otherwise trespass on the State's land without a clear indication in the Act that this is authorised.
20 We therefore now return to the text, context and purpose of the relevant provisions of the Act.
21 A carrier may still install a facility even if not authorised by cl 6 or for that matter cl 7, if permitted under State or Territory law. Without statutory authority under cll 6 or 7 though, the carrier will not enjoy the benefit of the immunity from a trespass suit provided by cll 6(2) and 7(2) and so if necessary will need to get permission to carry out its activities, whether on private or public land, from the owner of that land. Further, if not authorised to install its facility under cll 6 or 7, the carrier will not benefit from the exemption from certain State and Territory laws provided by cl 37 of Sch 3, and so will need to comply with or rely upon any other State or Territory law that applies to its activities. The Note to cl 6(1) specifically refers to the likely requirement of some type of approval by an administrative authority of the carrier's installation of a facility.
22 It is to be observed that a State or Territory law may confer additional powers or immunities on carriers to enter private or public land. As cl 45 of Sch 3 states:
It is the intention of the Parliament that this Part is not to be construed as preventing a law of a State or Territory from conferring powers or immunities on carriers, so long as that law is capable of operating concurrently with this Act.
23 It was not suggested that any relevant State law conferred a power or immunity on Optus to enter the State's land in relation to the proposed works.
24 So, under Sch 3 of the Act, carriers possess extensive rights to inspect land to determine its suitability and to maintain existing facilities. However, the right to install a facility is more circumscribed, and (ignoring cl 6(1)(c) for present purposes) is only authorised if the carrier holds a "facility installation permit" (FIP) or it is a "low-impact facility". Any proposed installation falling outside these criteria is not authorised under the Act, but may be authorised under State or Territory law.
25 A FIP is essentially directed towards facilities of national significance: see the criteria for a FIP under cl 27 of Sch 3. When the Australian Communications and Media Authority (ACMA) considers under Div 6 of Sch 3 whether to issue a FIP, it must hold a public inquiry and must be satisfied of a number of detailed matters, including that the advantages that are likely to be derived from the operation of the facilities outweigh any likely environmental degradation and that the carrier has made reasonable efforts to negotiate with necessary proprietors and authorities.
26 A low-impact facility is defined by the Telecommunications (Low-impact Facilities) Determination 2018 (Determination), pursuant to cl 6(3) of Sch 3 of the Act. Subclauses 6(4), (5) and (7) of Sch 3 preclude the Minister from designating as a low-impact facility certain facilities. The Determination refers to specified types of facilities, such as transmitters, receivers and other installations, and to specified areas, comprising residential, commercial, industrial and rural areas, or areas of environmental significance. A particular facility is a low-impact facility only if it complies with the specifications in the Schedule to the Determination and is installed in the particular areas specified in the Determination.
27 The Schedule to the Determination sets out the types of facilities determined to be low-impact facilities under various headings, for example (and most relevantly to this proceeding), underground facilities, above ground facilities and co-located facilities.
28 The Determination defines "co-located facilities" as follows:
co-located facilities means one or more facilities installed on or within:
(a) an original facility; or
(b) a public utility structure.
Note: A facility installed near, but not either on or within, an original facility or public utility structure will not be a co-located facility
In addition, a number of other low-impact facilities are specified by reference to their installation within an existing structure or trench.
29 It was not in dispute in this appeal that Optus' proposed facility did not fall within any of the specified low-impact facilities in the Determination. In particular:
(a) the proposed facility was not an underground facility, and
(b) the proposed facility was not a specified above ground facility, which was essentially required to be part of the wholesale national broadband network (pursuant to which it is understood NBN Co installed its original facilities on Kidd Bridge).
In addition, although the parties did not refer to the types of co-located facilities specified in the Determination, it is relevant that the Determination in this respect only specifies certain radio facilities, public payphones, temporary above ground facilities and marking posts or signs as low-impact facilities. Although accepting that there are limits on the Minister's power to specify certain types of facilities as low-impact facilities, it is clear that the Minister's power under cl 6(3) of Sch 3 is able to be exercised, and has been exercised, for the purposes of specifying certain co-located facilities as low-impact facilities in order to promote the co-location of facilities. The definition of "co-located facilities" does not refer to whether the carrier responsible for the installation is the same or a different carrier to that in respect of the original facility, and so in that regard does not discriminate between a "first carrier" and a "second carrier" in any given location. We will return to this issue of co-location later when we discuss the purpose of the relevant provisions of the Act in this proceeding.
30 So, returning to a carrier's authority to install a facility, Optus accepted that its proposed facility would not be a 'low-impact facility' under the Determination and therefore it could not unilaterally install its facility under cl 6(1)(b) . As to the other two means of authority to which we have previously referred:
(a) Optus has not applied for a FIP from the ACMA, noting the "very time-consuming and difficult" nature of the process; and
(b) Optus does not accept the licence agreement the State offered to it as a condition for authorising the installation of the proposed facility on its land.
31 Being unable or unwilling to install its proposed facility by means of these mechanisms, Optus seeks to install its facility through the maintenance gateway of cl 7(3)(e) on the basis that its proposed facility constitutes the "installation of an additional facility in the same location as the original facility" installed by NBN and on the basis that it complies with the conditions specified in cl 7(6) (being certain noise and amenity conditions).
32 We now return to cl 7 of Sch 3 of the Act.
33 In another context, the meaning of the word "maintain" within cl 7 has been judicially considered previously: see Pipe Networks at [86]-[96] per Kunc J.
34 The word "maintain" is a term of ordinary meaning. The Macquarie Dictionary definition of "maintain" includes the following:
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.
35 It is to be noted that the definition of "maintain" here inherently incorporates a purposive aspect to keep a particular object in due condition, etc. Then it is to be recalled that the term "maintenance of a facility" in cl 7 of Sch 3 is not exhaustively defined, but a 'reference' to maintenance includes a "reference to the installation of an additional facility in the same location as the original facility" (our emphasis): cl 7(3)(e).
36 It is legitimate to consider the phrase "maintenance of a facility" (such as a pole, cable or conduit) in its ordinary meaning to inform what is meant by cl 7(3)(e). As we do not have an exhaustive term defined, reference to the ordinary meaning of "maintenance" is permitted. As Gageler J said in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [48]:
The first difficulty with this aspect of the argument for the claimants is that s 91R(2) does not purport to define the term "serious harm to the person". This is not a case which engages the proposition for which this Court's decisions in Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503; [1978] HCA 30 and Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54 stand as authority, that it is impermissible "to construe the words of a definition by reference to the term defined". Section 91R(2) does not seek to define "serious harm"; rather, it provides instances of the serious harm referred to in s 91R(1)(b) by way of an aid in its application.
37 So, reading cl 7(3)(e) in the context of the ordinary meaning of "maintenance", it can reasonably be read as an example of "maintenance of a facility"" within its ordinary meaning. It may also be possible to read cl 7(3)(e) widely and going beyond the ordinary meaning of "maintenance", but for reasons of context and purpose (which we elaborate on later), this would not be the preferred construction. Some other paragraphs of cl 7(3) can similarly be read as falling within the ordinary meaning of "maintenance". Nevertheless, it is important to remember that a definition such as for "maintenance" may include items that would usually fall within the ordinary meaning of the defined term together with items that go beyond the ordinary meaning and extend the statutory meaning of the defined term.
38 We now turn to the context in which cl 7 is to be found. Clauses 5 to 7 are complementary and staged provisions giving certain rights to carriers themselves: inspecting the land and installing a facility, then maintaining the facility that has been installed. It is significant that maintenance is the final stage - as Kunc J said in Pipe Networks at [92], "the third element of a trilogy". The normal expectation is that the particular carrier will exercise each of these powers in turn. Therefore, the context of the power to maintain suggests that it is the carrier who originally installed the facility that is to maintain the facility. Of course, if a particular carrier wishes to employ an agent to maintain a facility (for instance), this is authorised by the Act, as cl 43 of Sch 3 extends the powers of a carrier to employees and persons acting for the carrier under contract.
39 It is true that cl 7 does not explicitly provide that the maintenance power is confined only to the carrier who installed the original facility. However, it is a mischaracterisation to conclude that a second carrier installing its own cable in the facility of another carrier is to, within its ordinary meaning, "maintain" that other carrier's facility. One does not normally maintain another's assets unless one is for instance authorised to do so by and on behalf of that person.
40 Clause 7 as a whole is directed at many possible maintenance activities that may in the future need to be carried out in order for a carrier to maintain a particular facility. Necessarily so, the legislature has given the carrier which has installed the original facility wide powers to maintain that facility. However, that "maintenance" is in the context of the carrier's prior powers of "installation". Although Optus' proposed installation can be interpreted to be an "installation of an additional facility in the same location as the original facility" as a literal matter, it would be contrary to the context of the provision. That is because the powers of installation are strictly delineated by cl 6. In addition, as part of the cl 6 scheme, the power to install specific types of facilities is regulated to the extent they are specified as low-impact facilities as determined by the Minister. Relevantly here, the installation of certain co-located facilities, underground facilities and aboveground facilities is therefore dealt with at the "installation" stage, and so to read cl 7(3)(e) as widely as its literal words allow would undermine the delineation of powers to install under cl 6. We will return to this issue when we consider the purpose of the provisions under consideration.
41 So, as we have said above, the activity carried out by a carrier under cl 7(3)(e) must be "maintenance" - that is, aimed at keeping the facility in due condition, etc - and should be read as an instance of the ordinary meaning of "maintenance". In our view, whoever the carrier (whether the original carrier who installed the original facility or a second carrier), the "installation of an additional facility in the same location as the original facility" within the meaning of cl 7(3)(e) must be such an installation for the purpose of maintenance (as noted earlier, the purpose inhering in the term "maintenance" itself). Whatever the bounds of cl 7(3)(e), the important point is that it does not enable a second carrier otherwise to install a separate and unrelated facility in the same location as the original facility. The "additional facility" ought to be properly "additional" to the original facility, for example, the installation of an additional component to the facility to maintain the operation of the original facility. There may be a question in any given case whether the installation of a second facility in the same location as an original facility is truly "additional" and therefore a form of "maintenance", or is in fact a separate facility seeking to be installed under the guise of "maintenance" in order to circumvent cl 6. Counsel for the State made certain concessions as to what NBN Co could additionally install within its original conduit on the Kidd Bridge, but it must be remembered that NBN Co is able to take advantage of the provisions in the Determination which specify as low-impact facilities certain above ground facilities which are "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 this case, it is clear that Optus' proposed facility is not a form of "maintenance" of the original facility.
42 As to the purpose of the relevant legislative provisions, Optus relies on s 3(1) and s 3(2)(e) of the Act to support its interpretation of cl 7, while the State emphasises s 3(2)(h). In addition, s 3(2)(i) is relevant.
43 Section 3(1) of the Act states:
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.
44 Section 3(2) describes the "other objects" of the Act, relevantly including the following:
(e) to promote the effective participation by all sectors of the Australian telecommunications industry in markets (whether in Australia or elsewhere);
…
(h) to provide appropriate community safeguards in relation to telecommunications activities and to regulate adequately participants of the Australian telecommunications industry;
(i) to promote the placement of lines underground, taking into account economic and technical issues, where placing such lines underground is supported by the affected community;
45 It is important to recall that general statements contained in legislation as to its purpose or object may need to be treated with caution: see the authorities referred to earlier in Freedom Foods at [29]. Such statements should be understood by reference to other provisions contained in the legislation. In other words, like any other provision in legislation, a purpose or objects clause must be interpreted in its context.
46 While we note the objects of the Act extracted above, the Act contains specific provisions dealing with the issues of installation and maintenance of facilities by carriers under Sch 3 and dealing with the sharing of access to one carrier's facilities so as to allow another carrier to establish their own facilities under Sch 1. After properly considering each of these provisions in context, it is unnecessary to divine the purpose of those provisions from the objects of the Act in order to apply them. In this case, it is inappropriate to invoke the objects of the Act to conclude that clauses 6 and 7 must promote the interests of carriers and the efficiency of telecommunications services over those of persons affected by the activities of carriers, by permitting the co-location of facilities without the consent of landowners.
47 The main purpose of the clauses we are dealing with in Sch 3 is to authorise carriers to enter land, install and maintain facilities in the manner regulated by Sch 3, and in exercising those powers to enjoy certain immunities. The effect of the immunities is that the carrier's powers explicitly override certain State or Territory laws (pursuant to Div 7 of Sch 3) and landowners' common law rights (for example, pursuant to cl 6(2) and cl 7(2)). Installation or maintenance activities outside the scope of cll 6 and 7 simply do not attract the powers and immunities provided by Sch 3 of the Act. It is clear that State or Territory law still applies in those circumstances, and so do the common law rights of landowners, whether public or private.
48 The scheme regarding access between carriers is dealt with in Sch 1 of the Act. That access regime under Sch 1 is separate to the installation regime under Sch 3. Schedule 1 is concerned with access rights to other carriers' customer facilities, rather than rights to access the land of public or private landowners. To interpret "maintenance" as we do does not preclude Optus from using the access regime under Sch 1 so as to promote the efficient co-location of competitive facilities. In fact, it is in the context of that access regime that it has been able to agree terms of access with NBN Co to the facilities installed by NBN Co on the Kidd Bridge. If Optus' proposed facility cannot be installed under cl 6of Sch 3, it is now merely a matter of Optus complying with any relevant State law and getting the permission of the owner of the Kidd Bridge (the State) to access the land on which NBN Co's original facility lies. The permission or consent of the landowner may be conditioned on the execution of an access or licence agreement, as here with the State. No relevant State law (for example, an environmental or planning law) was brought to our attention that impedes Optus from being permitted to install its proposed facility.
49 Absent authority to install its facility under cl 6 of Sch 3 and in the absence of any State law authorising Optus to install its proposed facility, Optus needs the State's permission to allow access to the Kidd Bridge. As accepted by Optus, it is to be recalled that Optus had not applied to obtain an FIP and the facility was not a low-impact facility. The facility is not a low-impact facility as a result of the legislative scheme itself, including the Determination made under cl 6(3). The relevance of this Determination is that co-located facilities can be declared as low-impact facilities in some instances. This is so as a matter of statutory interpretation (and the fact that the Determination does specify certain co-located facilities), but it should also be noted that this option was specifically envisaged at the time of the commencement of the Act. The Explanatory Memorandum for the Telecommunications Bill 1996 (Cth) at p291 states the following in relation to the Minister's power to make a determination as to low-impact facilities (emphasis added):
The instrument may provide for a particular class of facility to be determined for the purpose of this Part. For example, a determination could be made by reference to the type of facility, the type of location at which it is installed, whether it is co-located with an existing facility or any other basis of classification.
50 The predecessor to ACMA, the Australian Telecommunications Authority (AUSTEL), following a direction by the relevant Minister (which was also specifically envisaged in the Explanatory Memorandum at p291), considered the issue of low-impact facilities prior to the commencement of the Act in its report of April 1997 titled Public Inquiry on Low-Impact Facilities and Code of Practice. That report, among other things, addressed the policy questions involved in specifying co-located facilities as low-impact facilities. The final form of the Act, and its absence of a specific power to install co-located facilities under cl 6 of Sch 3 as a corollary to the access regime under Sch 1 was not an oversight of Parliament that needs to be remedied by circuitously inferring an additional power of installation under cl 7(3)(e) under the guise of maintenance.
51 In summary, the Minister has in fact made a determination allowing for some co-located low-impact facilities in certain areas, but not in relation to the Kidd Bridge and fibre optic cables attached to the bridge. Optus' lack of authorisation to install its proposed facility under cl 6 or c 7 after agreeing to an access arrangement with NBN Co therefore is not a gap in the Act, but a natural and appropriate consequence of the legislative scheme: that is, once a competitor carrier has given approval to access its facility, there must then be authorisation to install the facility there, if not via cl 6 of Sch 3 then via State or Territory authorisation and landowner permission.
52 In our view, it is clear that cl 7 does not authorise Optus to install its proposed facility, and as a consequence Optus would need to comply with cl 6 or obtain the consent of the State as landowner.
53 Even if it were not clear in our view according to ordinary principles of statutory construction, the principle in Coco supports our construction, as the carrier's right to enter land in these circumstances (which without statutory authority is a trespass and therefore tortious conduct) is not clearly expressed in unmistakeable and unambiguous language.