IN THE SUPREME COURT OF NORFOLK ISLAND Administration of Norfolk Island v Ryan [2007] NFSC 5 TELECOMMUNICATIONS – internet access services – notice to remove or deconfigure dish under s 6B Telecommunications Act 1992 (NI) – aim and object of the Act – whether Commonwealth Telecommunications Act extends to Norfolk Island – whether inconsistency between Commonwealth Act and Norfolk Island Act – whether dish configured for the purpose of transmitting or receiving any telecommunications – operation, composition and purpose of the dish – whether radio waves radiocommunications or telecommunications – whether signals guided or unguided – interpretation of s 6B – whether apply a strict interpretation approach. WORDS & PHRASES – 'telecommunications services' – 'guided' – 'unguided' – 'line' – 'radiocommunications' – 'satellite dish' – 'configured' Norfolk Island Act 1979 (Cth) ss 5, 20 Radiocommunications Act 1992 (Cth) s 15 Radiocommunications Act 1983 (Cth) Telecommunications Act 1997 (Cth) Telecommunications Act 1989 (Cth) Trade Practices Act 1974 (Cth) ss 44D, 151AK Telecommunications Act 1992 (NI) ss 2(a), 5, 6B, 11, 13 Briginshaw v Briginshaw (1938) 60 CLR 336 Cited Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 Referred to Krakouer v R (1998) 194 CLR 202 Applied R v Lavender (2005) 222 CLR 67 Considered ADMINISTRATION OF NORFOLK ISLAND v ROBERT RYAN TRADING AS NORFOLK ISLAND DATA SERVICES SC 4 OF 2006 KIEFEL J 12 JUNE 2007 BRISBANE (VIA VIDEO LINK) (heard on norfolk island) IN THE supreme COURT of norfolk island norfolk island district registry SC 4 OF 2006 between: ADMINISTRATION OF NORFOLK ISLAND PLAINTIFF and: ROBERT RYAN TRADING AS NORFOLK ISLAND DATA SERVICES DEFENDANT JUDGE: KIEFEL J DATE OF ORDER: 12 JUNE 2007 WHERE MADE: BRISBANE (VIA VIDEO LINK) (heard on norfolk island) THE COURT ORDERS THAT: 1. The application is dismissed. 2. The plaintiff pay the defendant's costs of the application. 3. The counter-claim be dismissed. 4. There be no order for costs in relation to the counter-claim. IN THE supreme COURT of norfolk island NORFOLK ISLAND district registry sc 4 OF 2006 between: ADMINISTRATION OF NORFOLK ISLAND PLAINTIFF and: ROBERT RYAN TRADING AS NORFOLK ISLAND DATA SERVICES DEFENDANT JUDGE: KIEFEL J DATE: 12 JUNE 2007 PLACE: BRISBANE (VIA VIDEO LINK) (heard on norfolk island) REASONS FOR JUDGMENT 1 The plaintiff, the Administration of Norfolk Island, is a body politic capable of suing: s 5 Norfolk Island Act 1979 (Cth). The defendant, Mr Ryan, until recently conducted a business on Norfolk Island which provided internet services and involved the use of a satellite dish. A notice was given to him by the Executive Member of the Administration on 20 January 2006 which requires him to remove or deconfigure the dish. The notice was said to have been given under s 6B of the Telecommunications Act 1992 (NI) ('the 1992 Act'). The defendant did not comply with the notice and the plaintiff now seeks a declaration that the section has been contravened and an injunction. 2 The Legislative Assembly of Norfolk Island has power, with the assent of the Administrator, to make laws: s 20 Norfolk Island Act 1979 (Cth). The Administratormay assent to a law concerning matters specified in Sch 2 or Sch 3 of the Act. One of the matters referred to in Sch 2 is 'the provision of telecommunications services (within the meaning of the Telecommunications Act 1989) and the prescribing of rates of charges for those services' (Item 48). 3 The first stated aim of the 1992 Act is to specify the telecommunications services which the Administration reserves to itself (s 2(a)). In s 5 it is declared that it is the intention of the Legislative Assembly that the Administration, as the provider of Norfolk Island's public telecommunications infrastructure and network, should have certain reserved rights in relation to aspects of that infrastructure and network. They include the provision of telecommunications services to and from the island (s 5(a)(vi)). Section 6B was inserted by Act No 16 of 2004. Subsection (1) of that section provides: '(1) A person other than the Administration must not, without the prior written approval of the executive member, install or maintain a satellite dish that has been configured for the purpose of transmitting or receiving any telecommunication (other than for the reception of television from a pay-tv provider or free-to-air-tv provider) and must upon being so directed in writing by the executive member, remove or de-configure any such satellite dish.' (emphasis added). 4 Where a person has engaged in conduct which involves a contravention of s 6B, the Administration may apply to the Supreme Court for relief which includes an injunction and damages: s 11. Proceedings may also be brought for a penalty. A penalty is not sought in this case. Section 13 permits the Executive Member to authorise the installation and maintenance of a satellite dish configured for a purpose specified in the application. The defendant says that there is no realistic prospect that he would receive such an authorisation. The plaintiff has entered into an agreement with Reach Global Services Limited, by which it is to be the exclusive supplier of international communications to and from Norfolk Island for the duration of the agreement. 5 The defendant owns premises at Cyber Centre, The Village, Norfolk Island from which a business called 'Norfolk Island Data Services' has operated for some time. It provides internet access services to customers on the island. To that end a concave dish-shaped reflector was installed on the roof of the premises. It is described as a 2.4 m Receive-Transmit Offset Antenna System. The defendant does not deny that he installed the equipment. He does deny that he maintains this equipment and claims that he sold the business to two former employees on 19 April 2007. He says that his connexion to the business is now as a consultant. The agreement he produces to evidence the sale states that 'the satellite dishes' are sold with the business. 6 There may be a question as to whether the defendant continues to maintain the satellite dish because of his ownership and control of the premises and his continued connexion to the business. That may be relevant to whether any injunctions having a future operation should be made. It is plain enough that the defendant has contravened the section up until 19 April 2007 if there was equipment making up a satellite dish and it was configured for the purpose of transmitting or receiving any telecommunication. 7 A 'communication' is defined in very wide terms in the 1992 Act. A 'telecommunication' is not defined, but a 'telecommunications service' is said to mean a service for carrying communications by means of guided or unguided electromagnetic energy or both, but it does not include a service for carrying communications solely by radiocommunication. A 'telecommunications service' in the Telecommunications Act 1989 (Cth), to which Sch 2, item 48 of the Norfolk Island Act 1979 (Cth) refers, is defined in similar terms. The terms 'guided' and 'unguided' electromagnetic energy are not themselves defined in the 1992 Act. Some reference to what is meant by 'guided electromagnetic energy', by means of 'continuous artificial guide' is to be found in the definition of a 'line': '… a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.' 8 In the 1992 Act a 'radiocommunication' is given the same meaning as in the Radio-communications Act 1983 (Cth). That Act defines it as radio transmission or reception; and 'radio transmission' is said to mean any transmission of electromagnetic energy between certain frequencies 'without continuous artificial guide'. The later Radiocommunications Act 1992 (Cth) similarly defines a radio emission to be any emission of electromagnetic energy without continuous artificial guide. That latter Act is expressed to apply to all external territories: s 15. Its object is said to be to provide for management of the radio frequency spectrum. The defendant holds an 'earth receiver' licence under that Act. It authorises communication with space stations in a satellite network. The Telecommunications Act 1997 (Cth) is not extended to Norfolk Island. It is said to have effect subject to the Radiocommunications Act 1992 (Cth). 9 The defendant does not challenge the validity of s 6B of the 1992 Act or that statute's claim to reserve to the Administration rights with respect to telecommunication services. The question which is raised is whether it can be concluded, to the requisite standard (see Briginshaw v Briginshaw (1938) 60 CLR 336), that the equipment making up the 'satellite dish' is configured for the purposes there stated, namely the transmission or reception of any telecommunication. It might generally be understood that communications or signals are passed between a satellite and a satellite dish by radio waves. The defendant submits that communication by these means are not telecommunications. The question as to what s 6B refers to must however be approached as one of interpretation of that provision and the meaning given to words in the 1992 Act. 10 The defendant pointed to a possible inconsistency between the 1992 Act and either or both of the Commonwealth Telecommunications Act and Radiocommunications Act. The argument was approached in various ways. It was submitted that because the Commonwealth Telecommunications Act took effect subject to the Radiocommunications Act and that latter Act extended to Norfolk Island, the Commonwealth Telecommunications Act also applied. The result was that there was some inconsistency between that Act and the 1992 Act. The inconsistency was not identified. Another inconsistency was said to arise with the Radiocommunications Act because the 1992 Act, and in particular s 6B, dealt with the subject of radiocommunications. It also followed from this that assent to the 1992 Act was not possible because it involved a matter not listed in Schedule 2. This argument assumes that the reference in s 6B to a 'telecommunication' includes one to a radiocommunication. 11 The defendant also sought to rely upon the conduct of the plaintiff and Reach Global as contravening ss 45D and 151 AK of the Trade Practices Act 1974 (Cth). How such contraventions could provide the defendant with a defence to these proceedings was not gone into, assuming that the legislation applies. 12 There was no dispute concerning the operation of the equipment which allows the provision of the internet services from the defendant's premises. The reflector referred to above does not itself receive or transmit anything. Although some might describe this part of the equipment installed on the roof as a 'satellite dish', the dictionary definition of that term involves a 'concave dish-shaped reflector designed to receive and focus electro-magnetic energy forming a radio, television or microwave signal' (The Macquarie Dictionary 2007, Definition of Satellite dish, The Macquarie Dictionary Online, 2007, viewed 5 June 2007, ). The reception and transmission of energy is only made possible by other units, attached to the reflector and powered from the premises. The dish operates as an antenna and deflects electromagnetic energy, in the form of radio waves, received from the carrier satellite, onto the low noise deflector ('the LND'). Radio waves are focussed back to the satellite through the backup converter ('the BUC'). Both are connected to a feedhorn. The radio waves are encoded with information. It may therefore be said that the combination of this equipment involves the transmission and receipt of radiocommunications. That does not however answer the question whether it involves telecommunication. 13 It is convenient at this point to refer to a matter raised by the defendant. It was contended that 'the satellite dish', to which s 6B and the notice to the defendant refers, is comprised only of the reflector, which is itself incapable of communication. 14 It is quite likely that the term 'satellite dish' would be understood by the average person to refer to the concave reflector. Its proper statutory meaning however has regard to its function in connexion with the satellite, namely to receive and transmit. It is that purpose to which s 6B has regard when it speaks of a satellite dish being 'configured'. In the context of equipment such as this, that term may be taken to refer to a combination with other devices to perform a certain task or to provide a certain capability (see The Oxford English Dictionary 2007, Definition of configure, Oxford English Dictionary Online, Oxford University Press, 2007, viewed 1 June 2007, ). The reference to a satellite dish in the present case should be taken to include the equipment which combines to permit transmission and reception – the LND and the BUC. So understood the 'satellite dish' on the defendant's premises is configured for radiocommunication. 15 The plaintiff has not to this point established that this combination of equipment transmits and receives telecommunications. Its case depends upon account being taken of the whole of the internet services operation at the defendant's premises in order to satisfy the requirement that telecommunications are involved. The description given by the plaintiff, in written submissions, of what occurs after a radio signal is received by the satellite dish is not controversial: '(b) the internet access services provided by the Defendant are not provided solely by means of radiocommunications, in that the electromagnetic energy which carries the communications is guided: (a) by means of cable from the antenna to equipment of the Defendant; and (b) by wires through that equipment; and (c) by wires: (i) to the point of interconnect between the Defendants telecommunications network and the telecommunications network of the Plaintiff; and (ii) from that point through the public telecommunications network of the Plaintiff to the dial-up customers of the Defendant; and (sic)(e) by means of cable to a transmitter and then to an antenna, whence it is transmitted to the wireless access customers of the Defendant.' 16 The plaintiff's written submissions describe a 'telecommunications service' coming within the definition of the 1992 Act. It involves both guided and unguided electromagnetic energy. The Chief Technical Officer of the Administration explained that the word 'telecommunication' would more commonly be understood to refer to guided signals, by wires, telephone lines and cables. These and other physical mediums fall within the definition of a 'line' in the 1992 Act and as being a 'continuous artificial guide', it may be observed. The communication from the point in para (e) of the submission, where it is transmitted from the antenna to wireless access customers, may be regarded as unguided. 17 There can be no doubt that the service undertaken at the defendant's premises is a telecommunications service. The plaintiff is correct in its submission that it involves guided and unguided electromagnetic energy and does not involve solely radiocommunication. Section 6B does not however prohibit the conduct of telecommunications services without approval. Its operation is limited to a satellite dish which is configured for the purpose of telecommunication. 18 It does not appear to me to be possible to conclude that the satellite dish is 'configured' in the way required because it has a connexion with the other elements of the internet service. That is so even if it is seen as essential to them. Whilst the term 'configured' may permit, or even require, equipment to be viewed in combination with other equipment that is because they function together in order to perform a task, or in that sense, achieve a purpose. The purpose of the satellite dish, made up of the components discussed, is to receive and focus radiocommunications. The balance of the equipment and devices used in the system cannot be described as forming part of a satellite dish. They are not necessary for it to perform its function. Their purpose is distinct. It may be said that a wider purpose of the satellite dish is to facilitate telecommunications or the provision of a telecommunications service, but they are not the purposes expressed in s 6B. It is limited to what the satellite dish, as configured, itself does. 19 Whilst the 1992 Act refers to the possibility of both guided and unguided electromagnetic energy used in a telecommunications service it cannot be inferred that it defines a telecommunication to include a radiocommunication. It comprehends that a telecommunication service will include some radiocommunications, but acknowledges that it will not be a telecommunication service if all that is involved is radiocommunication. The distinction between telecommunications and radiocommunications is confirmed by the express definition of the latter, which refers to the absence of a 'continuous artificial guide'. I did not understand the plaintiff to submit to the contrary of these propositions. 20 The plaintiff's argument accepted that the operation of the satellite dish and its associated units involved radiocommunication. The plaintiff made the point that the satellite dish is necessarily directed to, or focussed at, a satellite. By this means it was sought to argue that the electromagnetic energy was guided and that it therefore fell outside the definition of a radiocommunication and within that of a telecommunication, as the term is ordinarily understood. The submission overlooks the requirement that the guide for the electromagnetic energy, which is absent from a radiocommunication but present in most forms of telecommunication, is a continuous physical medium. 21 The plaintiff's case would give a wider application to s 6B than its language would reasonably permit. It would extend the section so as to condition the use of a satellite dish, in connexion with telecommunications generally or the undertaking of a telecommunications service, to the approval of the Executive Member. It may be that this was the aim of the legislation. If it was, it has not found expression in the words of s 6B. 22 The defendant submitted that a strict approach should be taken to legislation which may have serious consequences for the conduct of a person's business. The justification for such an approach, stemming from a desire to mitigate the harshness of penal legislation and translated to legislation imposing taxation or affecting private property rights, was discussed in R v Lavender (2005) 222 CLR 67 at [88] – [94]. It was there observed that the ordinary rules of construction are now applied. A stricter approach may only be useful where some ambiguity seems intractable. In the present case there is no such ambiguity. The section does not refer to radiocommunications. There is nothing in the other provisions of the 1992 Act which would permit the word 'telecommunications' to be read as if it meant radiocommunications or the prohibition extended to the use of a satellite in connexion with a telecommunications service. It is only the stated aim, of reserving telecommunications services to the Administration, which might suggest that a wider and more effective operation was intended for s 6B. Jordan CJ said in Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186: 'If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits' This passage was approved in Krakouer v R (1998) 194 CLR 202 at [62] and [63] where McHugh J went on to observe: 'Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion' Although his Honour's remarks were directed to criminal legislation, they are of general application in statutory interpretation. There is no warrant for redrafting s 6B, even if it appears to have little or no utility in its present form. If it was intended to limit the operation of telecommunications services that result could have been achieved by clear language. Whether such a provision would be within power is another question. 23 The application will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: 12 June 2007 Counsel for the Plaintiff: Mr R. J. Holdsworth Solicitor for the Plaintiff Norfolk Island Legal Services Unit Counsel for the Defendant: Dr J. Walsh of Brannagh Solicitor for the Defendant: Hehir & Co Date of Hearing: 31 May 2007 Date of Judgment: 12 June 2007