Australia: Recent judicial consideration of the telecommunications carrier powers and immunities regime: Broad interpretation given for maintenance

In a recent decision the Federal Court has confirmed that the right given to telecommunications carriers under Schedule 3 of the Telecommunications Act 1997 (Cth) to undertake maintenance work is to be broadly construed.

Background: What is the carrier powers and immunities regime?

Rights for carriers

Schedule 3 of the Telecommunications Act 1997 (Cth) (Telco Act), together with the Telecommunications (Low-Impact Facilities) Determination 2013 (Cth) and the Telecommunications Code of Practice 2018 (Cth) (Code), establish a telecommunications carrier powers and immunities regime.

This regulatory regime is intended to assist carriers to efficiently construct and maintain telecommunications infrastructure, to provide Australians with essential communications services. Under the regime carriers may undertake certain construction and related activities on land without the consent of the land owner or occupier. Specifically, a carrier may, without such consent:

• inspect land;
• install facilities on land, where the facility is a defined "low-impact facility" or where the carrier has a facility installation permit; and
• maintain facilities on land.

Of less relevance in this article, the regime also exempts carriers from the need to comply with particular State and Territory laws in carrying out such activities.

Rights for land owners and occupiers

Whilst the regime assists carriers to provide vital services that Australians rely on, it is not without controversy. It is not uncommon for land owners and occupiers to object to the exercise of these rights by carriers.

To protect land owners and occupiers the Code provides that a carrier must consult with an objecting land owner or occupier who raises concerns falling within particular limited categories and seek to resolve any objections by agreement. If agreement is not reached within a set period, the objection may be referred to the Telecommunications Industry Ombudsman (TIO). The TIO, which has a broad remit to resolve telecommunications related disputes, may if appropriate in the context of resolving a dispute provide the carrier with a direction as to how it must carry out the disputed activity. Carriers are required to comply with the TIO's directions. The TIO may determine not to hear a dispute, for example, if it determines carrying out the proposed activity is not within the carrier powers and immunities regime – that does not mean the activity may be carried on but instead that it is outside the TIO's remit.

If either party disagrees with the resolution proposed by the TIO, it may have the right to take the dispute to Australia's federal courts.

Queensland v Telecommunications Industry Ombudsman [2021] FCA 522

In Queensland v Telecommunications Industry Ombudsman, the State of Queensland took Optus to the Federal Court in relation to two disputes that were not resolved under the Code processes.

Optus had sought to rely on Schedule 3 of the Telco Act to install fibre optic cable in existing conduits or ducts attached to two bridges owned and operated by the State. Optus relied on that installation work falling with the definition of "maintenance" in Schedule 3 but the State disagreed with this characterisation. Under Schedule 3, "maintenance" of a facility includes, among other activities, the installation of an additional facility in the same location as the original facility where certain specific conditions are satisfied which, as relevant here, required that the additional facilities would be located in a duct, pit, hole, tunnel or underground conduit. Ultimately, the matter was referred to the TIO.

The State's arguments included that the installation of the fibre optic cable could not be maintenance, as Optus had no interest in the existing ducts on either of the bridges, which were owned and operated by other carriers. In the State's view a carrier could only maintain its own facilities. The TIO however concluded that Optus's proposed activities were maintenance activities within the meaning of Schedule 3. The TIO considered that the ducts in which Optus wished to install its cable were the original facilities (that is, the facilities that were being maintained), Optus proposed to install additional facilities in the same location as the original facilities and also, even though Optus did not own or operate the existing facilities, it had shown it had the right to access those original facilities as it had agreements with Telstra and NBN Co, who had constructed those facilities. The fact that the ducts were not underground but over bridges did not mean the maintenance provisions could not apply.

The State had also argued that maintenance should not be interpreted expansively to enable a carrier to undertake work that could not have been undertaken under the installation power in Schedule 3. In other words, it argued that Optus should not be able to install its fibre optic cable under the maintenance power as it was not a low-impact facility (noting Optus did not have a facility installation permit). The TIO again rejected the State's argument, concluding that the additional facilities that were to be installed (that is, the fibre optic cable) did not need to be "low-impact facilities" for Optus to rely on this maintenance power, given that the additional facilities would be located in an existing duct.

The case is of interest given the findings of the Federal Court as to the meaning of "maintenance" in Schedule 3 of the Telco Act. The Court agreed with the TIO's position that the term maintenance should not be given a restricted meaning based on its general meaning but should be given an interpretation consistent with the broad definition in Schedule 3 and confirmed the reasoning applied by the TIO.

The State has appealed this decision. While this case was before the Federal Court, the State also commenced separate proceedings against Optus in relation to a third decision of the TIO, which again relates to installing fibre in existing conduits or ducts on a bridge owned by the State. It is understood those proceedings are now on hold until the appeal from this decision is heard.

Consultation on further changes to carrier powers and immunities

As a final point it should be mentioned that, earlier this year, the Government consulted on amendments to the carrier powers and immunities framework.¹ The intent of these proposals, covering a wide range of areas including providing for a greater range of infrastructure to be considered to be low impact facilities, introducing new engineering certificate requirements and minor reforms to the TIO dispute resolution process, was to modernise the regime and provide better balance between competing interests. The amendments proposed have not yet been enacted, no doubt at least in part due to conflicting views of different stakeholders as to the appropriateness of the reforms.

¹View the consultation papers.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.