State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158

Federal Court of Australia

State of Queensland v Telecommunications Industry Ombudsman [2022] FCAFC 158 Appeal from: State of Queensland v Telecommunications Industry Ombudsman [2021] FCA 522

File number: QUD 167 of 2021

Judgment of: BESANKO, MIDDLETON AND RANGIAH JJ

Date of judgment: 16 September 2022

Catchwords: COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) Sch 3 cl 7 – meaning of "maintenance" as part of power to "maintain a facility" – whether maintenance includes the installation of a new fibre optic cable in a conduit or duct owned by a third party with whom access agreement entered – where consent of landowner required absent authorisation to install or maintain facility under the Act – held: installation of proposed facility not within power to maintain – appeal allowed COMMUNICATIONS LAW – Telecommunications Act 1997 (Cth) Sch 3 cl 11 – Telecommunications Code of Practice 2018 (Cth) s 6.29(e) – whether failure to make reasonable efforts to enter into an agreement with the State could be a basis for objecting to the proposed activities COMMUNICATIONS LAW – Telecommunications Code of Practice 2018 (Cth) s 6.29(b) – whether onus is on an objector to show an alternative location for a proposed activity

Legislation: Acts Interpretation Act 1901 (Cth) s 15AA Competition and Consumer Act 2010 (Cth) Pt XIB and Pt XIC ss 152AB(2), 152AL, 152AR(3)(a) and 152AXB(2) Telecommunications Act 1997 (Cth) ss 7, 3(1), 3(2), 42(1), 56, 61 and 484; Schs 1 and 3; cll 2, 5, 6, 7(1), 7(3), 11, 17(1), 17(2), 17(3), 17(4), 17(5), 18, 18(1), 18(5), 19(1), 26(2), 33(1), 34, 35, 36, 37(1), 38 and 47; Divs 2, 3 and 4 Telecommunications Code of Practice 2018 (Cth) ss 6.22, 6.29, 6.35 and 6.36(1) Telecommunications (Low-impact Facilities) Determination 2018 (Cth)