[2003] HCATrans 398





Office of the Registry

                        Sydney                                       No S400 of 2003



B e t w e e n -















Application for special leave to appeal













Copyright in the High Court of Australia


MR B.W. WALKER, SC:   May it please your Honours, I appear with my learned friend, MR D.P WILSON, for the applicant.  (instructed by Truman Hoyle)


MR F.M. DOUGLAS, QC:   May it please the Court, I appear with my learned friend, MR K.M. CONNOR, for the respondent.  (instructed by Deacons)


McHUGH J:   Yes, Mr Walker.


MR WALKER:   Your Honours, it may not quite be the age of canals or railways, but in our submission what is colloquially known as the rollout of telecommunications network for so‑called mobile telephony has presented a similar opportunity for legislatures to regulate, both in broad brush and in fine detail, the balance between the public interest in encouraging the enterprise carried out by people actuated by the profit motive and the balance also to be struck in relation to the siting and use of both public and private land and other property for the purposes of the technical equipment necessary to advance what is self‑evidently seen as the public interest of having a sophisticated telecommunications network.  The Telecommunications Act 1997 bespeaks that both explicitly and implicitly.


            What the Court of Appeal has done in this case, in our submission, disturbing the decision of the learned trial judge, is to have construed one of the important rules that appears to be in relation to certain matters of detail, but in fact it is a very considerable general power which was in question, so as to prevent in this case, which would then apply, because there are no material differences, to other such cases in the future, the use of a pre‑existing pole already used for public purpose under a regime under which compulsory compliance with the ministerial code of conduct, clause 15 of Schedule 3 of the Act, meant in turn clause 4.13, found at the foot of page 89 and the top of page 90 of our submissions in the book, required careful consideration and what might be paraphrased as preference for doubling up the multiple use of pre‑existing facilities, facilities including those which are the facilities of a public utility, in other words something used by a gas company, something used by an electricity company, something used by a local council supplying reticulated services.


            When your Honours contemplate the average footpath with the parking meter, the bollard, the traffic pole, the telegraph pole, the streetlight, all separately mounted and the aesthetic and physical inconvenience that one could readily see as contrary to the public interest in that, it is clear that there was a purpose and a mischief which is to be gathered from this both detailed and widespread of general application regime which has been, in our submission, seriously frustrated by the Court of Appeal’s reasoning.


            Now, the case actually arose by reference to the particular interpretation of clause 7 of Schedule 3, Schedule 3 being, in effect, pursuant to section 484, which itself has to do, neatly expressed, “Carriers’ powers and immunities”.  In the course of the learned President’s reasons, what emerges is that by a combination of textual reading and then of what we would call, with respect, extreme hypothetical scenario consequentialist reasoning, the learned President came to the conclusion that there were, for example, significant differences between clause 6 and clause 7.


            That, in our submission, shows how far the error went, bearing in mind what ought to have been the application in light of the mischief, the purpose, the ordinary English rule and trying to make a coherent scheme of the whole legislative regime, because clause 6, which your Honours will conveniently find set out in the 78B notice starting at page 106, your Honours will see clause 6 starting at the foot of page 109 where you will find that the carrier there is entitled:


for purposes connected with the supply of a carriage service, carry out the installation of a facility –


and then in provisions which are not set out there, there is the capacity to enter and occupy land and to carry out what can only be described as intrusive activities which, as the learned President correctly put, clearly could otherwise constitute trespass.


            He contrasted that with clause 7 and I ask your Honours then to turn to the foot of 108, the top of 109 for this so‑called contrast.  Clause 7(1) empowered a carrier to “maintain a facility”.  Clause 7(2), which was described by the learned President in what we would submit is an opposite way from its true character – 7(2) is clearly ancillary to 7(1), but 7(2) was treated at page 74 of the reasons as if it were the driving or defining part of 7 – it says that you can enter on and occupy land and remove or erect a gate in any fence and it says that those are examples because it uses the words you “may do anything necessary or desirable for” those purposes “including (but not limited to)” those matters.


            Each of those matters, not coincidentally, would otherwise have constituted a trespass and, in our submission, when one then goes on to consider subclause (3), two of the examples of which are shown at page 109, your Honours will see that it is peradventure clear that clause 7 purports on its face to authorise what would otherwise be trespass in relation to the maintenance power.  When one then turns back to the learned President’s reasoning, one finds in paragraph 60 ‑ ‑ ‑


KIRBY J:   So you can enter, you can remove, you can replace.


MR WALKER:   Yes.  If I could take your Honours to page 74 in the learned President’s reasons, you find in paragraphs 60 and 61, at what we would submit is the peak of his combination of textual and supposedly purposive reasoning – in our submission, it is contrarily purposive, it is to frustrate rather than subserve – you find ‑ ‑ ‑


McHUGH J:   Yes, but the interpretation for which you contend bypasses the procedures for installation of a facility, does it not?  On your theory of the case, if a carrier wants to avoid the process of obtaining a facility installation permit, it simply needs to select an existing structure and then pull it down and replace it with a structure suitable for its purpose.


MR WALKER:   There are a number of answers to that.  The first is that to bypass or shortcut may carry overtones of derogation which are inappropriate to simply construing black‑letter powers and immunities.  The second thing is the question is whether clause 7, in light of section 7, authorised what was done.


            The fact that something different, of which the activities in question here were just a small part or a minor illustration, of a far more general category could be done pursuant to the quite different procedure under clause 6 only illustrates the difference between making use of existing facilities of others, on the one hand, and the broad category which would include all, what might be called, greenfields operations on the other.  There is overlap, of course, but there is not a dichotomous choice and greenfields operations, which are clause 6, will of course not be capable of being bypassed as to the clause 6 requirements by resort to clause 7 in the so‑called whole “swap out” operation which was carried out here.


            So it comes down to a question, not whether clause 6 has not been used and subliminally is that a bad thing, but rather does clause 7 authorise it bearing in mind the evident difference between the greenfields operation for clause 6 and the pre‑existing facilities using clause 7.


            The clincher, in our submission, in answer to your Honour Justice McHugh, is that there is nothing wrong with choosing clause 7 when it is so clear from clause 15’s requirement that you comply with the ministerial code of practice and clause 4.13 of that ministerial code of practice that you are positively driven to consider councils’ poles, electricity companies ‑ ‑ ‑


McHUGH J:   Yes, but it goes beyond councils’ poles.  On your argument you can pull down and replace facilities which are of cultural or historical significance.


KIRBY J:   Is that right, or is it only if those facilities had previously been used in a network?


MR WALKER:   The example your Honour has raised invokes that which was explicit in debate, I understand, at both levels below, certainly in the Court of Appeal, the Harbour Bridge.  Now, in our submission, something has gone, if I may adapt language of the learned President, amiss with the process of statutory interpretation when there is solemn debate about a mobile company in a competitive market replacing the Harbour Bridge with a minimum of disruption, as it is required to under the provisions of the Act, in order to put up a dish or two.


            In our submission, that is not a proper approach to statutory interpretation.  As it happens, it was not explored as to what else in the skein of legislation in which the Harbour Bridge finds its place would have prevented that at the Commonwealth level.  In our submission, that is the kind of starting at shadows which does lead to error in statutory interpretation purposefully and reasonably undertaken.


KIRBY J:   If you are derogating from what are normally civic rights ‑ ‑ ‑


MR WALKER:   It needs to be done by words that do it.  We accept that.


KIRBY J:   Exactly, and as the Court said – I think it was in one of the recent cases – Parliament has to wear the opprobrium.


MR WALKER:   Quite so.


KIRBY J:   Parliament has to take the political accountability for it.


MR WALKER:   Now, your Honour, that is why I took you immediately to the clause 6/clause 7 contrast that appealed to the learned President as supporting the conclusion to which he tended, but on examination the same kind of words, in fact verbatim, some of the same phrases are found in 7(2) and 7(3) combined, as one found in 6(2).  Clause 6(2), correctly by the President, was regarded as authorising trespass and there can be no doubt in this Court or any court of the land that entering and occupying another person’s land is a trespass, except with permission or by authority.


            The authority is granted by the statute, you may “maintain”, subclause (1).  Subclause (2), to do so you may enter and occupy, tear down a gate, put in a gate.  In our submission, the test which, the robustness of which must be maintained, namely the words “must authorise” what would otherwise be an invasion of private right, has been comfortably satisfied by language of the kind which was used in the days of canal and railway pioneering.


            It is a familiar form of legislation whereby the Commonwealth Parliament does wear the opprobrium and no doubt because of the political requirement, regardless of whether there be any constitutional aspect to it, also includes compulsory schemes of compensation, but much more importantly, schemes of prior notification – notification, as clause 17 makes clear, to the owner.


            Now, you have to notify, whether it is clause 6 or clause 7 that you are having in mind.  We notified under clause 17 because we were going to use clause 7.  That fits oddly, that is, Parliament’s expectation that there will be an owner – you do not notify yourself after all – with what appears to be the bottom line of the learned President’s reasoning just before he comes to this textual contrast, phantom as it happens to be, between clauses 6 and 7, in paragraph 59 on page 74 because there, as his final reasoning, the President says you have to already own the facility or you have to already have “existing rights sufficient to ground the right of maintenance”.


            Now, the rights to maintain are given by the statute, not by private treaty.  Bearing in mind the emergency powers available under maintenance, it would be astonishing if they were not available under the statute unless you had already presciently covered in detail the sufficient words to grant the permission for what would otherwise be a trespass to enter without prior notification.


            In our submission, there has been a departure from the proper approach, true it is in accordance with well‑established general principle, but a departure which has had enormous impact on what is otherwise an efficient way of rolling out network trespassing upon, invading upon private interests pursuant to parliamentary authority.  Rather, the Court of Appeal, in our submission, can be seen in its reasoning to be, as it were, straining against the ordinary English outcome of the parliamentary command.


            That brings me finally to the matter of the general public importance dehors the obvious importance of obeying the ordinary English dictates of Parliament.  There are two affidavits filed, sworn by Stephen Birnie respectively on 6 and 27 August.  They are not in the book because of, I think, some disagreement between the parties about their status.  We rely upon them, the contents of which I can paraphrase as saying that this is a case, the so‑called “Oatley decision”, which has been of real moment in the dealings which are the bread and butter of network rollout throughout the

country, well outside that municipality, well outside this State and in a general way with what is obviously an uncertain, but obviously large economic effect.


            It affects not only the private capitalist ambitions of my client, but it affects the way in which what Parliament sees as a competitive telecommunications market operates generally.  There had been a rule promulgated by Parliament in the complex balance required and this Court of Appeal decision has inserted a requirement which is quite at odds with the intended designation of another utilities own facility for use by telecommunications, so that you will not have seven vertical structures on the locality’s best hill, for example.  You will have one.


            In our submission, simply to raise that kind of consideration shows how far a departure from an ordinary English and coherent approach to the interpretation of a statutory scheme the Court of Appeal has strayed.  It is for those reasons and, in particular, in light of the public importance imparted by the industrial, economic and social effect, that is, the conflict generated by the Oatley decision for which, in our submission, a grant of special leave is appropriate.  May it please your Honours.


McHUGH J:   Yes, thank you, Mr Walker.  Yes, Mr Douglas.


MR DOUGLAS:   Just because the case is about telecommunications does not make it important.  It may make it sexy, but that is about all.


McHUGH J:   It is a case about statutory construction which, as is usually the case, involves competing plausible constructions.


MR DOUGLAS:   The question really is whether what is being raised is a plausible construction.  It is suggested that what is intended to be done here by the Court of Appeal decision is to subvert the legislative intention of the Commonwealth Parliament.


            The Commonwealth Parliament has been very careful as to the way in which it has intruded into the way in which planning matters are managed by the States.  It has designated so‑called low impact facilities and other facilities.  It has given powers to telecommunications carriers under Schedule 3, Division 4 to maintain and, under Division 3, to install facilities.  Where it is not a low impact facility, they have required that there be a facility installation permit.  What is required in relation to a facility installation permit appears at page 65 of the appeal book where there is a summary in the judgment of the learned President where he says:


The requisites for obtaining a facility installation permit are set out in Division 6(cll21-35).  Before a permit can be granted by the Australian Communications Authority there must be a public inquiry (cl 25) and detailed criteria set out in clause 27 must be satisfied.  These involve complex environmental and other criteria, including obligations to negotiate in good faith with affected stakeholders.  The appellant Council submits that in the present circumstances it was obligatory for the respondent to have obtained a facility installation permit before it could have constructed the tower it erected in March‑April 2003 as an essential component in its downlink site at Oatley Park.


KIRBY J:   What do you say to Mr Walker’s submission that some of the maintenance might have to be done quickly and that, therefore, going through that process is really unrealistic, that therefore that cannot be the construction of the Act?


MR DOUGLAS:   Your Honour, once you have installed the facility, you obviously have a right to maintain it.  This case is not, contrary to the way in which the special leave points have sought to be articulated, a case about the maintenance of a facility which has already been erected.  It is a case about whether you can, under the guise of maintaining the facility, install a facility.  That depends upon ‑ ‑ ‑


McHUGH J:   They say it became an original facility by giving the notice, do they?


MR DOUGLAS:   They say that, your Honour.


McHUGH J:   Yes.


MR DOUGLAS:   They say just because an officer of Hutchison was driving by this park one day and they saw a pole which was being used to illuminate a sportsground which they rather liked and so that officer apparently, with the authority of Hutchison, formed the intention that that should be a facility for telecommunications purposes.  However, it was not entirely adequate for the purposes which they had in mind, so they thought that they should then maintain the facility.  The business of maintenance involved, or was to involve before the Council actually took down the pole, the installation of another pole of similar size, but more suited to the purpose which Hutchison had in mind ‑ ‑ ‑


KIRBY J:   But that was not a telecommunication facility before that.  That was just a light.


MR DOUGLAS:   No, it was not, your Honour.  It was just a pole standing in a park.  But they used the definition of “facility” in the Act, which I think the Court has, but if you do not have it you will find the definition at page 62 of the application book, as meaning:


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 telecommunication network.


Now, the critical words in this case are those words “or for use” because they say they import an element of intention such that when an officer of Hutchison forms the intention to use a particular structure, whether it be this pole or, for that matter, the steeple at St Andrew’s Cathedral or a part of the roof, as a structure for use in connection with the telecommunications network it becomes a facility which can be maintained by them.


            Now, thereby they obtain the right to maintain the facility, to replace it in this case with a pole which is more appropriate for their purposes and thereby they avoid those parts of Division 6 which require them, when it is not a low impact facility, to get a facility installation permit and avoid the public inquiry and other aspects involved with the obtaining of a telecommunications network.  What this case is about is a flagrant attempt by a telecommunications carrier ‑ ‑ ‑


McHUGH J:   They want to bypass the procedures for the installation of a facility so they will not have to undergo a public inquiry with all the opposition.


MR DOUGLAS:   Exactly.


KIRBY J:   And it is a question of whether that construction of the Act is one which should be attributed to the Federal Parliament which would be depriving citizens of their opportunity to express their countervailing views on the environmental consequences.


MR DOUGLAS:   Yes, absolutely, your Honour.


KIRBY J:   If that were the case, consistent with repeated holdings of this Court including in recent times, that has to be spelt out so that those who enact such laws wear the political opprobrium and are accountable to the electors.


MR DOUGLAS:   In our respectful submission, your Honour, the Court of Appeal’s decision is clearly right.  My learned friend has fastened upon aspects of the provisions of clause 7 in relation to the rights which are given to a carrier to maintain facilities and for rights which are given to a carrier to install facilities, but we do not deny them the right, once they have

obtained their facility installation permit, to enter upon the land, to construct it, to maintain it once it is there. 


            What this case is about, as Justice McHugh said, is an attempt by a telecommunications carrier to subvert the provisions of the regulations which deal with the question of installation of facilities.


McHUGH J:   Yes, Mr Walker.


MR WALKER:   Your Honours, clause 7 contains language which is, in answer to the comment made by Justice Kirby, plain to the point of drawing upon Parliament whatever opprobrium might follow.


KIRBY J:   Well, you say so, but not really because it is talking about telecommunications networks at ‑ ‑ ‑


MR WALKER:   No, clause 7, not section 7, your Honour.


KIRBY J:   I see.


MR WALKER:   Clause 7 refers ‑ ‑ ‑


KIRBY J:   Where do we find that?


MR WALKER:   It is found at several places.  May I suggest that your Honours might find it usefully at page 68 in Justice Mason’s reasons and there one finds paragraph 7(3)(a) and (d) ‑ ‑ ‑


KIRBY J:   Yes, but it is maintaining a facility and then when you look to the definition of “facility”, (a) is definitely out in this case and (b) you have to use a strained interpretation to get it in.


MR WALKER:   Importantly, (a) is out and it refers to infrastructure and no one says this Council’s sports lighting pole was part of that infrastructure.


KIRBY J:   I hope not.


MR WALKER:   Well, Parliament said however, and the Minister has approved the code of conduct which Parliament says you must comply with, in clause 4.13 of that “Please use the facilities of other utilities”.  They are not in telecommunications either, any more than the sports light is in telecommunications and the extended definition in section 7 of “facility”, (b), says there is infrastructure that is already being used for telecommunications and now there is something else and, of course ‑ ‑ ‑


McHUGH J:   What you have to face up to is that the argument that you put forward as to the construction is plainly the product of much ingenuity on the part of those who thought it up, but it really does seem to drive a coach‑and‑four through the object of the Act so far as installation is concerned.


KIRBY J:   The purpose of consulting citizens before you change in a significant way a light in a football ground into a telecommunications tower ‑ ‑ ‑


MR WALKER:   You do not change it from being a light though.


McHUGH J:   No, but you take the pole, for instance.  You replace it with another pole.  Admittedly you have to pay compensation.


MR WALKER:   There is a betterment question which we can leave aside at the moment.  The controls on maintenance are such that you cannot give them something worse and clause 7(3) makes it clear that Parliament intended that you would be able to do the following major things to somebody else’s property by way of maintenance of a facility. 


            You can alter it, remove it, as well as repair it, but significantly, if that were not enough, under (d) you can replace it in whole or in part so long as you comply with subclause (5) which is the one that ensures, if you like, that there could only be betterment, not a detriment.  That does involve a degree of prior notice and consultation with the right of objection.  It is not true that involvement in the exercise is swept aside by some clever lawyer’s point thought up about statutory wording.  There is no ‑ ‑ ‑


McHUGH J:   Yes, but I would be surprised if the parliamentarians ever thought in defining the word “facility” that they thought the phrase “for use” could be put to the use that your side seeks to make of it.


MR WALKER:   It has to be said, whatever they thought, they did not think it meant “used” because it is used in apposition to that and so like (b) itself, which extends beyond telecommunications infrastructure, “for use” extends beyond use.  Now, his Honour the President said that is something that is, as it were, dedicated by design and the intention of its progenitors for use in the telecommunications industry.  That makes a nonsense of the evident requirement that you use the facilities of other utilities and if a lighting company has a pole, you are directed to think about using it in preference. 


            So that one can reject the proposition that is the foundation of the President’s argument, namely this requires dedication by the intention of the original builder, designer, commissioner of the pole and rather ask, is this

adapted?  In our submission, her Honour Justice Pain was quite correct in discerning of this statutory scheme that the notification provision, which does involve people being heard, under clause 7 for maintenance where you are not adding something to the landscape except the boxes that Parliament asks you to put on somebody else’s pole, as opposed to clause 6 where you are adding something to the landscape.


            So, of course, the greenfields has a more elaborate regime.  We do not bypass that when we are not doing a greenfields, when we are simply swapping out an existing pole so that the sports lighting function can continue and the telecommunications function can continue.  There is nothing over‑clever about taking the advantage intended by Parliament for obviously social purposes ‑ ‑ ‑


KIRBY J:   So on your theory you could climb St Andrew’s Cathedral tower or St Mary’s Cathedral tower and put telecommunications boxes there?


MR WALKER:   No.  Your Honour, one first would have to identify what it means by maintenance.  Climbing St Andrew’s tower and manoeuvring around the crockets and the like has not been the subject of any considerations that is fitting under clause 7.


KIRBY J:   Yes, but you see we have to sit here and look at these possibilities.


McHUGH J:   Well, I think your time has come, Mr Walker.


MR WALKER:   If it please, your Honours.


McHUGH J:   This case raises a question of statutory construction on which, as is often the case, there are competing plausible constructions.  In our view the construction which the Court of Appeal placed on the relevant clause is the preferable construction.  Accordingly, the application for special leave must be refused with costs.  The Court will now adjourn to reconstitute.