Australia: Short circuit - Scope of Schedule 3 of the Telecommunications Act shifts decisively in favour of carriers

The recent Supreme Court decision in NBN Co Limited v Pipe Networks Pty Limited [2015] NSWSC 4751 (Pipe Case) dramatically changes our understanding of the scope of carrier powers and immunities under Schedule 3 of the Telecommunications Act 1997 (Cth) (Schedule 3).

In deciding that the maintenance power in Schedule 3 enabled a carrier to both plug its equipment into a third party's electricity supply and draw power belonging to that third party without its consent, his Honour Justice Kunc set a precedent which will enable carriers to undertake a whole range of activities that had previously been considered impermissible. As well as drawing power, these potentially include consuming gas or water and making modifications to buildings. It will be interesting to see whether some carriers try to test the boundaries of this new construction of Schedule 3 and, if so, whether building owners object.


Schedule 3 facilitates the rollout of telecommunications networks by giving carriers the statutory power to:

  • (under clause 6) install equipment on land (including, in some circumstances, in existing buildings), subject to that equipment falling within certain statutory categories (installation power); and
  • (under clause 7) maintain and in some cases replace previously installed equipment (maintenance power).

The Pipe Case concerned the rollout by Pipe Networks, a wholly owned subsidiary of TPG Telecom, of its fibre to the basement (FTTB) network. FTTB involves running fibre to a common area, such as the basement of a 'multi-dwelling unit' or apartment building and installing active equipment that requires a power supply in the basement. This equipment (typically a VDSL DSLAM) is then connected to the existing copper cabling in the building via a mini Main Distribution Frame, thereby allowing the provision of high speed broadband services to end users.

As part of its FTTB rollout, Pipe Networks was informing building owners that Schedule 3 not only enabled Pipe Networks to install their equipment in building basements (which was uncontroversial), but also to plug that equipment into existing power sockets and draw power without the consent of the building owner. It separately notified buildings owners of payment in an amount determined by Pipe. NBN Co brought proceedings against Pipe Networks alleging that Schedule 3 did not authorise the drawing of power without the building owner's consent and that representing that it did amounted to misleading or deceptive conduct in contravention of the Competition and Consumer Act 2010 (Cth).


Kunc J held that the installation power permits a carrier to plug equipment into a power outlet, without a building owners' consent, on the basis that it was consistent with:

  • (primarily) the ordinary meaning of 'installation'; and
  • (secondarily) "the attachment of the facility to any building or structure" and "an activity that is ancillary or incidental to the installation of the facility" as provided for in the inclusive definition of 'installation' in clause 2 of Schedule 3.

However his Honour held that the installation power would not extend to the drawing of power, on the basis that installation stops at the point where the equipment is ready to be used or operated. Interestingly this does not seem to address the situation of a power point where power can be drawn as soon as the equipment is plugged in.


Kunc J held that the natural, ordinary meaning of maintain is limited to "keeping a facility in good repair", which would not extend to plugging a facility in or drawing power. He also held that, consistent with established principles of statutory interpretation, where there is ambiguity in legislation a narrower meaning is preferable to a broader one if there is potential interference with the rights of others. On that basis, his Honour decided that the natural, ordinary definition of maintenance did not authorise the plugging in of equipment or the drawing of power.

However his Honour went on to express the view that each of the paragraphs in clause 7(3) added to the scope of 'maintain' rather than simply gave examples of its application. In particular he considered the clause 7(3)(c) reference to "ensuring the proper functioning of the facility" meant something more than repairing or provisioning a facility as those functions were covered elsewhere in clause 7(3). Based on what his Honour considered to be the natural and ordinary meaning of 'function' and 'ensure', he held that "any conduct that makes certain the proper functioning or operation of the Equipment will be included within the power to maintain the equipment" [emphasis added]. It followed that the drawing of power to equipment 'obviously' ensured its proper functioning and therefore the maintenance power alone authorised both plugging equipment into an existing power point and drawing power without consent.

It is perhaps slightly problematic that, in drawing this conclusion, his Honour gave the maintenance power a construction that would seem to deprive the installation power of any separate purpose in some circumstances.

Interestingly, despite the controversy between the parties, his Honour concluded that there was no ambiguity in the drafting of the maintenance power and therefore a narrow reading on the basis that individual rights were infringed was not required.


NBN Co also contended that the withdrawal of power without consent may infringe state and territory criminal statutes concerning the theft of power. However Kunc J held that as Schedule 3 exempts carriers from the operation of state and territory laws "about the supply of fuel or power" these laws did not apply.

Kunc J also made a number of (probably obiter) statements about the scope of the compensation provisions in Schedule 3. In particular his Honour stated that the words 'in relation to' in the compensation provisions "should be interpreted as connoting a broad connection, not necessarily causal."


The Court's interpretation of the maintenance power provides carriers with an authority to engage in 'any conduct' that makes certain the proper functioning of the equipment, with no clear limit as to the scope of their power. It will be interesting to see how carriers take advantage of this decision and the extent to which, if at all, land owners are able to resist its application.


1Corrs Chambers Westgarth acted for the plaintiff in these proceedings, however the views expressed are the authors' alone.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.