Telecommunications Legislation Amendment (Submarine Cable Protection) Act 2014 (Cth)

Telecommunications Legislation Amendment (Submarine Cable Protection) Act 2014

No. 33, 2014

An Act to amend legislation relating to telecommunications, and for other purposes

Contents

Telecommunications Legislation Amendment (Submarine Cable Protection) Act 2014

No. 33, 2014

An Act to amend legislation relating to telecommunications, and for other purposes

[Assented to 27 May 2014]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Telecommunications Legislation Amendment (Submarine Cable Protection) Act 2014.

2Commencement

(1)
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	27 May 2014
2. Schedule 1	The day after this Act receives the Royal Assent.	28 May 2014

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2)
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Part 1Amendments

Administrative Decisions (Judicial Review) Act 1977

After paragraph (daa) of Schedule 1

Insert:
(daaa)
decisions of the Attorney‑General under clause 57A or 72A of Schedule 3A to the Telecommunications Act 1997;

Australian Security Intelligence Organisation Act 1979

2
Subsection 35(1) (paragraph (d) of the definition of prescribed administrative action)
Repeal the paragraph, substitute:
(d)
the exercise of a power under any of the following provisions of the Telecommunications Act 1997:
(i)
section 58A;
(ii)
subsection 581(3);
(iii)
clause 57A of Schedule 3A;
(iv)
clause 72A of Schedule 3A.

Subsection 38A(1)

Omit “section 58A, or subsection 581(3), of the Telecommunications Act 1997”, substitute:
any of the following provisions of the Telecommunications Act 1997:
(a)
section 58A;
(b)
subsection 581(3);
(c)
clause 57A of Schedule 3A;
(d)
clause 72A of Schedule 3A.

Telecommunications Act 1997

Clause 1 of Schedule 3A

Before:
• The ACMA may declare protection zones in relation to submarine cables. In a protection zone, certain activities are prohibited and restrictions may be imposed on other activities.

insert:
• This Schedule regulates the installation of certain submarine cables that are connected to places in Australia.

Clause 1 of Schedule 3A

Omit:
• A carrier who intends to install a submarine cable in Australian waters must apply for a permit to do so from the ACMA.

substitute:
• Carriers who intend to install certain submarine cables in certain Australian waters must apply for a permit to do so from the ACMA.

Subclause 2(1) of Schedule 3A

Insert:
Attorney‑General’s Department means the Department administered by the Attorney‑General.

Subclause 2(1) of Schedule 3A

Insert:
Australian national means:
(a)
an Australian citizen; or
(b)
a body corporate established by, or under, a law of:
(i)
the Commonwealth; or
(ii)
a State; or
(iii)
a Territory; or
(c)
the Commonwealth; or
(d)
a State; or
(e)
a Territory.

Subclause 2(1) of Schedule 3A

Insert:
Australian ship means a ship other than a foreign ship.
9
Subclause 2(1) of Schedule 3A (paragraph (a) of the definition of Australian waters)
Omit “(within the meaning of the Seas and Submerged Lands Act 1973)”.

Subclause 2(1) of Schedule 3A

Insert:
business day means a day on which the ACMA is open for business in both:
(a)
Victoria; and
(b)
the Australian Capital Territory.

Subclause 2(1) of Schedule 3A

Insert:
Commonwealth regulatory approval, in relation to the installation of a submarine cable or cables, means an approval (however described) that:
(a)
relates to the installation of the cable or cables; and
(b)
is required under:
(i)
the Environment Protection and Biodiversity Conservation Act 1999; or
(ii)
any other law of the Commonwealth (other than this Schedule).

Subclause 2(1) of Schedule 3A

Insert:
domestic submarine cable means that part of a line link (within the meaning of section 30):
(a)
that is laid on or beneath the seabed that lies beneath Australian waters; and
(b)
that is laid for purposes that include connecting a place in Australia with another place in Australia (whether or not the cable is laid via a place outside Australia); and
(c)
that is connected to a place in Australia;
and includes any device attached to that part of the line link, if the device is used in or in connection with the line link, but does not include an international submarine cable.
Note 1: Any part of a line link that is laid elsewhere than on or beneath the Australian seabed, and any device attached to such part of a line link, is not a domestic submarine cable for the purposes of this Schedule.
Note 2: See also subclause (3).

Subclause 2(1) of Schedule 3A

Insert:
foreign national means a person who is not an Australian national.

Subclause 2(1) of Schedule 3A

Insert:
foreign ship has the same meaning as in the Customs Act 1901.

Subclause 2(1) of Schedule 3A

Insert:
international submarine cable means that part of a line link (within the meaning of section 30):
(a)
that is laid on or beneath the seabed that lies beneath Australian waters; and
(b)
that is laid for purposes that include connecting a place in Australia with a place outside Australia (whether or not the cable is laid via another place in Australia); and
(c)
that is connected to a place in Australia;
and includes any device attached to that part of the line link, if the device is used in or in connection with the line link.
Note 1: Any part of a line link that is laid elsewhere than on or beneath the Australian seabed, and any device attached to such part of a line link, is not an international submarine cable for the purposes of this Schedule.
Note 2: See also subclause (4).

Subclause 2(1) of Schedule 3A

Insert:
security has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
17
Subclause 2(1) of Schedule 3A (definition of submarine cable)
Repeal the definition, substitute:
submarine cable means:
(a)
a domestic submarine cable; or
(b)
an international submarine cable.
Note: See also subclause (5).

At the end of clause 2 of Schedule 3A

Add:
(3)
A reference in this Schedule to a domestic submarine cable includes a reference to a part of a domestic submarine cable.
(4)
A reference in this Schedule to an international submarine cable includes a reference to a part of an international submarine cable.
(5)
A reference in this Schedule to a submarine cable includes a reference to a part of a submarine cable.

At the end of Part 1 of Schedule 3A

Add:

2AExtension to offshore areas

Section 11 has effect, in relation to this Schedule, as if the reference in paragraph (1)(b) of that section to each of the eligible Territories were a reference to each of the external Territories.

2BSubmarine cable installed in a protection zone

For the purposes of this Schedule, in determining whether a submarine cable is in, or is installed in, a protection zone, it is immaterial whether the cable is the cable, or any of the cables, in relation to which the protection zone was declared.

After subclause 4(1) of Schedule 3A

Insert:
(1A)
The ACMA must not declare a protection zone in relation to one or more domestic submarine cables, or one or more domestic submarine cables that are proposed to be installed, unless:
(a)
the cable or cables are specified in the regulations; or
(b)
the route or routes of the proposed cable or cables are specified in the regulations.

Subclause 7(2) of Schedule 3A (heading)

Repeal the heading, substitute:
Declaration different from request

Paragraph 7(2)(c) of Schedule 3A

Omit “proposed protection zone”, substitute “requested protection zone”.

At the end of subclause 7(2) of Schedule 3A

Add “, together with a written statement setting out the ACMA’s reasons for declaring a protection zone that is different from the requested protection zone”.
24
Subparagraphs 9(2)(a)(i) and (4)(a)(ii) of Schedule 3A
Omit “one nautical mile”, substitute “1,852 metres”.

At the end of clause 10 of Schedule 3A

Add:
(5)
However, subclause (4) does not cover an activity if:
(a)
the activity is carried on by, or on behalf of, a person who owns or operates a submarine cable in the protection zone; and
(b)
the activity consists of the maintenance or repair of the submarine cable.

At the end of clause 11 of Schedule 3A

Add:
(4)
However, subclause (3) does not cover an activity if:
(a)
the activity is carried on by, or on behalf of, a person who owns or operates a submarine cable in the protection zone; and
(b)
the activity consists of the maintenance or repair of the submarine cable.

Clause 17 of Schedule 3A

Repeal the clause, substitute:

17ACMA to publish proposal etc.

Scope
(1)
This clause applies to a proposal developed under clause 15.
Publication
(2)
The ACMA must:
(a)
publish the proposal on the ACMA’s website; and
(b)
invite public submissions on the proposal.
Provision of copy of proposal
(3)
If a person requests the ACMA to give the person a copy of the proposal, the ACMA must give the person a copy of the proposal within 2 business days after the day on which the ACMA received the request.
(4)
However, subclause (3) does not apply if the ACMA has:
(a)
declared the protection zone to which the proposal relates; or
(b)
decided not to declare the protection zone to which the proposal relates.
(5)
If the person requests that a copy of the proposal be given in electronic form, the ACMA may give the copy in electronic form.
(6)
The ACMA is not entitled to impose a charge for giving the person a copy of the proposal.

17AACMA to publish summary of proposal

Scope
(1)
This clause applies to a proposal developed under clause 15.
Publication
(2)
The ACMA must:
(a)
prepare a summary of the proposal; and
(b)
publish the summary:
(i)
in the Gazette; and
(ii)
on the ACMA’s website; and
(iii)
in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory; and
(iv)
if an external Territory is affected by the proposal—in a newspaper circulating generally in the external Territory.
(3)
The summary of the proposal must include information about how people can:
(a)
access the proposal on the ACMA’s website; and
(b)
request a copy of the proposal under subclause 17(3).

Clause 18 of Schedule 3A

Before “The ACMA must”, insert “(1)”.

At the end of clause 18 of Schedule 3A

Add:
(2)
For the purposes of subclause (1) if:
(a)
a cable is specified in regulations made for the purposes of subclause 4(1A); or
(b)
a route of a cable is specified in regulations made for the purposes of subclause 4(1A);
the cable is taken to be of national significance.

Clause 21 of Schedule 3A

After “paragraph 20(d)”, insert “of this Schedule”.

Clause 32 of Schedule 3A

Repeal the clause, substitute:

32ACMA to publish proposal etc.

Scope
(1)
This clause applies to a proposal developed under clause 30.
Publication
(2)
The ACMA must:
(a)
publish the proposal on the ACMA’s website; and
(b)
invite public submissions on the proposal.
Provision of copy of proposal
(3)
If a person requests the ACMA to give the person a copy of the proposal, the ACMA must give the person a copy of the proposal within 2 business days after the day on which the ACMA received the request.
(4)
However, subclause (3) does not apply if the ACMA has:
(a)
made the variation or revocation to which the proposal relates; or
(b)
decided not to make the variation or revocation to which the proposal relates.
(5)
If the person requests that a copy of the proposal be given in electronic form, the ACMA may give the copy in electronic form.
(6)
The ACMA is not entitled to impose a charge for giving the person a copy of the proposal.

32AACMA to publish summary of proposal

Scope
(1)
This clause applies to a proposal developed under clause 30.
Summary
(2)
The ACMA must:
(a)
prepare a summary of the proposal; and
(b)
publish the summary:
(i)
in the Gazette; and
(ii)
on the ACMA’s website; and
(iii)
in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory; and
(iv)
if an external Territory is affected by the proposal—in a newspaper circulating generally in the external Territory.
(3)
If the summary under subclause (2) relates to a proposal to vary a declaration of a protection zone, the summary must include:
(a)
the name of the protection zone; and
(b)
details of the location and dimensions of the protection zone as proposed to be varied; and
(c)
details of the location and dimensions of the protection zone as it exists before the variation; and
(d)
an outline of the reasons for the variation; and
(e)
information about how people can:
(i)
access the proposal on the ACMA’s website; and
(ii)
request a copy of the proposal under subclause 32(3).
(4)
If the summary under subclause (2) relates to a proposal to revoke a declaration of a protected zone, the summary must include:
(a)
the name of the protection zone; and
(b)
details of the location and dimensions of the protection zone; and
(c)
an outline of the reasons for the revocation; and
(d)
information about how people can:
(i)
access the proposal on the ACMA’s website; and
(ii)
request a copy of the proposal under subclause 32(3).

Paragraph 36(1)(b) of Schedule 3A

Omit “, or to a part of a submarine cable”.

Paragraph 36(1)(c) of Schedule 3A

Omit “, or the part of the cable,”.

Subclause 36(2) of Schedule 3A (note)

Omit “strict liability”, substitute “strict liability”.

Paragraph 37(1)(b) of Schedule 3A

Omit “, or to a part of a submarine cable”.

Paragraph 37(1)(d) of Schedule 3A

Omit “, or the part of the cable,”.

Subclause 37(2) of Schedule 3A (note)

Omit “strict liability”, substitute “strict liability”.

Paragraphs 38(a) and (b) of Schedule 3A

Omit “, or to a part of the submarine cable,”.

Subclause 39(2) of Schedule 3A (note)

Omit “strict liability”, substitute “strict liability”.

Subclause 44(2) of Schedule 3A (note)

Omit “strict liability”, substitute “strict liability”.
41
At the end of Division 4 of Part 2 of Schedule 3A
Add:

Subdivision C—Foreign nationals and foreign ships

44AForeign nationals and foreign ships

Foreign nationals—no involvement of ship
(1)
This Division does not apply to anything done, or omitted to be done, if:
(a)
the thing is done, or omitted to be done, by a foreign national; and
(b)
the thing is done, or omitted to be done in, on, or beneath the seabed that lies beneath, either or both of the following:
(i)
the waters of the exclusive economic zone of Australia;
(ii)
the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and
(c)
the thing done, or omitted to be done, does not involve a ship;
unless the thing done, or omitted to be done, touches, concerns, arises out of or is connected with:
(d)
the exploration of the continental shelf of Australia; or
(e)
the exploitation of the resources of the continental shelf of Australia (including the exploitation of the resources of the waters of the exclusive economic zone); or
(f)
the operations of artificial islands, installations or structures that are under Australia’s jurisdiction.
Foreign nationals—involvement of foreign ship
(2)
This Division does not apply to anything done, or omitted to be done, if:
(a)
the thing is done, or omitted to be done, by a foreign national; and
(b)
the thing is done, or omitted to be done, in either or both of the following:
(i)
the waters of the exclusive economic zone of Australia;
(ii)
the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and
(c)
the thing done, or omitted to be done, involves a foreign ship;
unless the thing done, or omitted to be done, touches, concerns, arises out of or is connected with:
(d)
the exploration of the continental shelf of Australia; or
(e)
the exploitation of the resources of the continental shelf of Australia (including the exploitation of the resources of the waters of the exclusive economic zone); or
(f)
the operations of artificial islands, installations or structures that are under Australia’s jurisdiction.

Before paragraph 47(2)(a) of Schedule 3A

Insert:
(aa)
the Australian Customs and Border Protection Service;
(ab)
the Australian Defence Force;
(ac)
the Australian Federal Police;

At the end of subclause 47(2) of Schedule 3A

Add:
; (e)
the National Offshore Petroleum Safety and Environmental Management Authority;
(f)
the National Offshore Petroleum Titles Administrator;
(g)
an authority that is:
(i)
established by or under a law of the Commonwealth, a State or a Territory; and
(ii)
specified in an instrument in force under subclause (3).

At the end of clause 47 of Schedule 3A

Add:
(3)
The Minister may, by legislative instrument, specify one or more authorities for the purposes of subparagraph (2)(g)(ii).

Clause 50 of Schedule 3A

Omit:
• A carrier may apply to the ACMA to install a submarine cable:
(a)
in a protection zone; or
(b)
in Australian waters (other than Australian waters that are in a protection zone or that are coastal waters).

substitute:

• A carrier may apply to the ACMA to install a submarine cable in a protection zone.
• A carrier may apply to the ACMA to install an international submarine cable in both:
(a)
a protection zone; and
(b)
Australian waters that are not in a protection zone and that are not coastal waters.
• A carrier may apply to the ACMA to install an international submarine cable in Australian waters that are not in a protection zone and that are not coastal waters.

Clause 50 of Schedule 3A

Omit:
• It is an offence for a person to install a submarine cable without a permit in a protection zone, or in Australian waters that are not in a protection zone and that are not coastal waters.

substitute:
• It is an offence for a person to install an international submarine cable without a permit in a protection zone, or in Australian waters that are not in a protection zone and that are not coastal waters.
• It is an offence for a person to install a domestic submarine cable without a permit in a protection zone.

Clause 51 of Schedule 3A

Repeal the clause, substitute:

51Application for a protection zone installation permit

(1)
A carrier may apply to the ACMA for a permit (a protection zone installation permit) to:
(a)
install one or more submarine cables in a protection zone; or
(b)
install a single international submarine cable in both:
(i)
a protection zone; and
(ii)
Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory; or
(c)
install each of 2 or more international submarine cables in both:
(i)
a protection zone; and
(ii)
Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory.
(2)
It is immaterial whether the cable or cables specified in the application are the cable or cables in relation to which the protection zone was declared.

Clause 52 of Schedule 3A

Before “An application”, insert “(1)”.

At the end of clause 52 of Schedule 3A

Add:
(2)
The approved form must require the application to set out:
(a)
the proposed route or routes, in Australian waters, of the submarine cable or cables specified in the application; and
(b)
information about the ownership and control of the submarine cable or cables specified in the application; and
(c)
any other relevant information.
(3)
For the purposes of subclause (2), control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices:
(a)
whether or not having legal or equitable force; and
(b)
whether or not based on legal or equitable rights; and
(c)
whether or not capable of being exercised indirectly through one or more interposed companies, partnerships or trusts.

After clause 54 of Schedule 3A

Insert:

54ANotification of change of circumstances

(1)
If:
(a)
an application is pending; and
(b)
the applicant becomes aware of a change of circumstances relating to information set out in the application;
the applicant must:
(c)
notify the change to the ACMA; and
(d)
do so as soon as practicable.
(2)
After considering the notification, the ACMA must decide whether or not the change should be treated as a material change in circumstances for the purposes of clause 58.
Note: Clause 58 deals with the timing of the ACMA’s decision on the application.
(3)
The ACMA must:
(a)
notify the applicant in writing of the ACMA’s decision under subclause (2); and
(b)
do so within 2 business days after the day on which the decision is made.

After clause 55 of Schedule 3A

Insert:

55AConsultation

(1)
Before making a decision on the application for a protection zone installation permit, the ACMA must consult:
(a)
the Secretary of the Attorney‑General’s Department; and
(b)
any other persons the ACMA considers relevant.
(2)
Within 2 business days after the day on which the ACMA received the application, the ACMA must give the Secretary of the Attorney‑General’s Department a copy of the application.
(3)
Within 15 business days after the day on which the Secretary of the Attorney‑General’s Department received the copy of the application, the Secretary of the Attorney‑General’s Department must:
(a)
give a written notice to the ACMA stating that, while the notice remains in force, the ACMA must not grant the permit; or
(b)
make a submission to the ACMA; or
(c)
give a written notice to the ACMA stating that the Secretary of the Attorney‑General’s Department does not require any further consultation about the application.
Notice to the ACMA under paragraph (3)(a)
(4)
The ACMA must not grant the permit while a notice is in force under paragraph (3)(a).
(5)
Unless sooner revoked, a notice under paragraph (3)(a) remains in force during the period specified in the notice.
(6)
The period specified under subclause (5) must not be longer than 3 months.
(7)
The Secretary of the Attorney‑General’s Department may, by written notice given to the ACMA, extend, or further extend, the period referred to in subclause (5), so long as the extension, or further extension, does not result in the notice being in force for longer than 12 months.
(8)
The Secretary of the Attorney‑General’s Department may, by written notice given to the ACMA, revoke a notice under paragraph (3)(a).
(9)
Within 2 business days after the day on which the ACMA received a notice under paragraph (3)(a) or subclause (7), the ACMA must give the applicant a copy of the notice.
Submission to the ACMA
(10)
If a notice under paragraph (3)(a) is in force, the Secretary of the Attorney‑General’s Department may make a submission to the ACMA.
(11)
A submission to the ACMA under paragraph (3)(b) or subclause (10) may include:
(a)
recommendations about the conditions that should be specified in the permit under paragraph 58A(1)(d) or (e) of this Schedule; or
(b)
such other matters (if any) as the Secretary of the Attorney‑General’s Department considers relevant.
Notice to the ACMA under paragraph (3)(c)
(12)
A notice under paragraph (3)(c) cannot be revoked.

Subclause 56(1) of Schedule 3A

Repeal the subclause, substitute:
Grant
(1)
After considering the application, the ACMA may:
(a)
if the application is covered by paragraph 51(1)(a) of this Schedule—grant the applicant a protection zone installation permit authorising the installation, in the protection zone, of the submarine cable or cables specified in the application; or
(b)
if the application is covered by paragraph 51(1)(b) of this Schedule—grant the applicant a protection zone installation permit authorising the installation, in both:
(i)
the protection zone; and
(ii)
Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory;
of the international submarine cable specified in the application; or
(c)
if the application is covered by paragraph 51(1)(c) of this Schedule—grant the applicant a protection zone installation permit authorising the installation, in both:
(i)
the protection zone; and
(ii)
Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory;
of each of the international submarine cables specified in the application.

Subclause 56(2) of Schedule 3A

Repeal the subclause.

Clauses 57 and 58 of Schedule 3A

Repeal the clauses, substitute:

57Matters to which the ACMA must have regard in making a decision about a permit

In deciding whether to grant a protection zone installation permit, the ACMA must have regard to:
(a)
if the Secretary of the Attorney‑General’s Department makes a submission to the ACMA under clause 55A—that submission; and
(b)
any other matters that the ACMA considers relevant.

57ARefusal of permit—security

(1)
If the Attorney‑General, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a protection zone installation permit to a particular carrier would be prejudicial to security, the Attorney‑General may give a written direction to the ACMA not to grant a protection zone installation permit to the carrier.
(2)
The ACMA must comply with a direction under subclause (1).
(3)
While a direction is in force under this clause:
(a)
the ACMA cannot reconsider a non‑compulsory refusal to grant a protection zone installation permit to the carrier; and
(b)
the Administrative Appeals Tribunal cannot consider an application for review of a non‑compulsory refusal to grant a protection zone installation permit to the carrier.
(4)
If an application for a protection zone installation permit is pending at the time when the Attorney‑General gives a direction to the ACMA under this clause, then the application lapses.
(5)
In this clause:
non‑compulsory refusal means a refusal to grant a protection zone installation permit, other than a refusal that is required by this clause.

58Timing of decision on application

Further information requested
(1)
If:
(a)
a carrier applies for a protection zone installation permit; and
(b)
the ACMA requests the applicant to give the ACMA further information under subclause 55(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c)
25 business days; or
(d)
if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 35 business days)—that number of business days;
after the day on which the applicant gave the ACMA the information.
No further information requested
(2)
If:
(a)
a carrier applies for a protection zone installation permit; and
(b)
the ACMA does not request the applicant to give the ACMA further information under subclause 55(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c)
25 business days; or
(d)
if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 35 business days)—that number of business days;
after the day on which the application was made.
Extension for change in circumstances relating to application
(3)
If:
(a)
a carrier applies for a protection zone installation permit; and
(b)
the carrier notifies the ACMA of a change in circumstances under subclause 54A(1); and
(c)
the ACMA decides under subclause 54A(2) that the change should not be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by 5 business days.
(4)
If:
(a)
a carrier applies for a protection zone installation permit; and
(b)
the carrier notifies the ACMA of a change in circumstances under subclause 54A(1); and
(c)
the ACMA decides under subclause 54A(2) that the change should be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by:
(d)
25 business days; or
(e)
if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 35 business days)—that number of business days.
Extension where notice given by Secretary of the Attorney‑General’s Department in force
(5)
If:
(a)
a carrier applies for a protection zone installation permit; and
(b)
the Secretary of the Attorney‑General’s Department gives a notice to the ACMA under paragraph 55A(3)(a) of this Schedule in relation to the application;
the number of business days referred to in subclause (1) or (2) of this clause is extended by one business day for each business day in the period during which the notice remains in force.

Before clause 59 of Schedule 3A

Insert:

58AConditions of permit

(1)
A protection zone installation permit held by a carrier is subject to the following conditions:
(a)
a condition that so much of the relevant cable or cables as is installed in a protection zone must be installed within:
(i)
75 metres of the route or routes specified by the ACMA in the permit; or
(ii)
if the ACMA specifies another distance in the permit—that distance of the route or routes specified by the ACMA in the permit;
(b)
if the permit is covered by paragraph 56(1)(b) or (c) of this Schedule—a condition that so much of the relevant cable or cables as is installed in Australian waters that:
(i)
are not in a protection zone; and
(ii)
are not coastal waters of a State or the Northern Territory;
must be installed within:
(iii)
926 metres of the route or routes specified by the ACMA in the permit; or
(iv)
if the ACMA specifies another distance in the permit—that distance of the route or routes specified by the ACMA in the permit;
(c)
a condition that the carrier, or a person acting on behalf of the carrier, must not install the relevant cable or cables unless all Commonwealth regulatory approvals have been obtained for the installation;
(d)
such conditions (if any) in relation to security as the ACMA specifies in the permit;
(e)
such conditions (if any) in relation to the installation of the relevant cable or cables as the ACMA specifies in the permit.
Variation of conditions
(2)
The ACMA may, by written notice given to the holder of a protection zone installation permit:
(a)
vary a condition covered by paragraph (1)(a) or (b) by:
(i)
specifying a distance; or
(ii)
varying a distance; or
(b)
vary a condition covered by paragraph (1)(d) or (e).

Clause 64 of Schedule 3A (heading)

Repeal the heading, substitute:

64Application for a permit to install an international submarine cable in Australian waters (otherwise than in a protection zone or coastal waters)

Clause 64 of Schedule 3A

Omit “submarine cables”, substitute “international submarine cables”.

Clause 65 of Schedule 3A

Before “An application”, insert “(1)”.

At the end of clause 65 of Schedule 3A

Add:
(2)
The approved form must require the application to set out:
(a)
the proposed route or routes, in Australian waters, of the submarine cable or cables specified in the application; and
(b)
information about the ownership and control of the submarine cable or cables specified in the application; and
(c)
any other relevant information.
(3)
For the purposes of subclause (2), control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices:
(a)
whether or not having legal or equitable force; and
(b)
whether or not based on legal or equitable rights; and
(c)
whether or not capable of being exercised indirectly through one or more interposed companies, partnerships or trusts.

After clause 67 of Schedule 3A

Insert:

67ANotification of change of circumstances

(1)
If:
(a)
an application is pending; and
(b)
the applicant becomes aware of a change of circumstances relating to information set out in the application;
the applicant must:
(c)
notify the change to the ACMA; and
(d)
do so as soon as practicable.
(2)
After considering the notification, the ACMA must decide whether or not the change should be treated as a material change in circumstances for the purposes of clause 73.
Note: Clause 73 deals with the timing of the ACMA’s decision on the application.
(3)
The ACMA must:
(a)
notify the applicant in writing of the ACMA’s decision under subclause (2); and
(b)
do so within 2 business days after the day on which the decision is made.

Subclause 69(1) of Schedule 3A

Repeal the subclause, substitute:
Grant
(1)
After considering the application, the ACMA may grant the applicant a non‑protection zone installation permit authorising the installation, in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory, of the submarine cable or cables specified in the application.

Subclause 69(2) of Schedule 3A

Repeal the subclause.

Clause 70 of Schedule 3A

Repeal the clause, substitute:

70Consultation

(1)
Before making a decision on the application for a non‑protection zone installation permit, the ACMA must consult:
(a)
the Secretary of the Attorney‑General’s Department; and
(b)
any other persons the ACMA considers relevant.
(2)
Within 2 business days after the day on which the ACMA received the application, the ACMA must give the Secretary of the Attorney‑General’s Department a copy of the application.
(3)
Within 15 business days after the day on which the Secretary of the Attorney‑General’s Department received the copy of the application, the Secretary of the Attorney‑General’s Department must:
(a)
give a written notice to the ACMA stating that, while the notice remains in force, the ACMA must not grant the permit; or
(b)
make a submission to the ACMA; or
(c)
give a written notice to the ACMA stating that the Secretary of the Attorney‑General’s Department does not require any further consultation about the application.
Notice to the ACMA under paragraph (3)(a)
(4)
The ACMA must not grant the permit while a notice is in force under paragraph (3)(a).
(5)
Unless sooner revoked, a notice under paragraph (3)(a) remains in force during the period specified in the notice.
(6)
The period specified under subclause (5) must not be longer than 3 months.
(7)
The Secretary of the Attorney‑General’s Department may, by written notice given to the ACMA, extend, or further extend, the period referred to in subclause (5), so long as the extension, or further extension, does not result in the notice being in force for longer than 12 months.
(8)
The Secretary of the Attorney‑General’s Department may, by written notice given to the ACMA, revoke a notice under paragraph (3)(a).
(9)
Within 2 business days after the day on which the ACMA received a notice under paragraph (3)(a) or subclause (7), the ACMA must give the applicant a copy of the notice.
Submission to the ACMA
(10)
If a notice under paragraph (3)(a) is in force, the Secretary of the Attorney‑General’s Department may make a submission to the ACMA.
(11)
A written submission to the ACMA under paragraph (3)(b) or subclause (10) may include:
(a)
recommendations about the conditions that should be specified in the permit under paragraph 73A(1)(c) or (d) of this Schedule; or
(b)
such other matters (if any) as the Secretary of the Attorney‑General’s Department considers relevant.
Notice to the ACMA under paragraph (3)(c)
(12)
A notice under paragraph (3)(c) cannot be revoked.

Clause 71 of Schedule 3A (heading)

Repeal the heading, substitute:

71Matters to which the ACMA must have regard in making a decision about a permit

After paragraph 71(a) of Schedule 3A

Insert:
(aa)
if the Secretary of the Attorney‑General’s Department makes a submission to the ACMA under clause 70—that submission; and

Paragraph 71(b) of Schedule 3A

Repeal the paragraph.

Clause 72 of Schedule 3A

Repeal the clause.

Clause 73 of Schedule 3A

Repeal the clause, substitute:

72ARefusal of permit—security

(1)
If the Attorney‑General, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a non‑protection zone installation permit to a particular carrier would be prejudicial to security, the Attorney‑General may give a written direction to the ACMA not to grant a non‑protection zone installation permit to the carrier.
(2)
The ACMA must comply with a direction under subclause (1).
(3)
While a direction is in force under this clause:
(a)
the ACMA cannot reconsider a non‑compulsory refusal to grant a non‑protection zone installation permit to the carrier; and
(b)
the Administrative Appeals Tribunal cannot consider an application for review of a non‑compulsory refusal to grant a non‑protection zone installation permit to the carrier.
(4)
If an application for a non‑protection zone installation permit is pending at the time when the Attorney‑General gives a direction to the ACMA under this clause, then the application lapses.
(5)
In this clause:
non‑compulsory refusal means a refusal to grant a non‑protection zone installation permit, other than a refusal that is required by this clause.

73Timing of decision on application

Further information requested
(1)
If:
(a)
a carrier applies for a non‑protection zone installation permit; and
(b)
the ACMA requests the applicant to give the ACMA further information under subclause 68(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c)
60 business days; or
(d)
if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 90 business days)—that number of business days;
after the day on which the applicant gave the ACMA the information.
No further information requested
(2)
If:
(a)
a carrier applies for a non‑protection zone installation permit; and
(b)
the ACMA does not request the applicant to give the ACMA further information under subclause 68(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c)
60 business days; or
(d)
if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 90 business days)—that number of business days;
after the day on which the application was made.
Extension for change in circumstances relating to application
(3)
If:
(a)
a carrier applies for a non‑protection zone installation permit; and
(b)
the carrier notifies the ACMA of a change in circumstances under subclause 67A(1); and
(c)
the ACMA decides under subclause 67A(2) that the change should not be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by 5 business days.
(4)
If:
(a)
a carrier applies for a non‑protection zone installation permit; and
(b)
the carrier notifies the ACMA of a change in circumstances under subclause 67A(1); and
(c)
the ACMA decides under subclause 67A(2) that the change should be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by:
(d)
60 business days; or
(e)
if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 90 business days)—that number of business days.
Extension where notice given by Secretary of the Attorney‑General’s Department in force
(5)
If:
(a)
a carrier applies for a non‑protection zone installation permit; and
(b)
the Secretary of the Attorney‑General’s Department gives a notice to the ACMA under paragraph 70(3)(a) of this Schedule in relation to the application;
the number of business days referred to in subclause (1) or (2) of this clause is extended by one business day for each business day in the period during which the notice remains in force.

Before clause 74 of Schedule 3A

Insert:

73AConditions of permit

(1)
A non‑protection zone installation permit held by a carrier is subject to the following conditions:
(a)
a condition that the relevant cable or cables must be installed within:
(i)
926 metres of the route or routes specified by the ACMA in the permit; or

(ii)
if the ACMA specifies another distance in the permit—that distance of the route or routes specified by the ACMA in the permit;
(b)
a condition that the carrier, or a person acting on behalf of the carrier, must not install the relevant cable or cables unless all Commonwealth regulatory approvals have been obtained for the installation;
(c)
such conditions (if any) in relation to security as the ACMA specifies in the permit;
(d)
such conditions (if any) in relation to the installation of the relevant cable or cables as the ACMA specifies in the permit.
Variation of conditions
(2)
The ACMA may, by written notice given to the holder of a non‑protection zone installation permit:
(a)
vary a condition covered by paragraph (1)(a) by:
(i)
specifying a distance; or
(ii)
varying a distance; or
(b)
vary a condition covered by paragraph (1)(c) or (d).

Clause 78 of Schedule 3A

Before “This Division”, insert “(1)”.

Clause 78 of Schedule 3A

Omit “a submarine cable”, substitute “an international submarine cable”.

At the end of clause 78 of Schedule 3A

Add:
(2)
This Division applies to the installation of a domestic submarine cable in a protection zone by, or on behalf of, a carrier.
Note: A Code of Practice made under subclause 15(1) of Schedule 3 may impose conditions in addition to the conditions imposed in this Division.
73
At the end of Division 4 of Part 3 of Schedule 3A
Add:

83AAttorney‑General’s consent required for certain enforcement proceedings

(1)
An application for an injunction under section 564 must not be made without the written consent of the Attorney‑General if:
(a)
the injunction is in relation to a contravention by a carrier of the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to this Division; and
(b)
the carrier is a foreign national; and
(c)
the contravention occurred, is occurring, or is to occur, outside Australia; and
(d)
the contravention did not involve an Australian ship.
(2)
A proceeding for the recovery of a pecuniary penalty under section 571 must not be instituted without the written consent of the Attorney‑General if:
(a)
the proceeding is in respect of a contravention by a carrier of the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to this Division; and
(b)
the carrier is a foreign national; and
(c)
the contravention occurred outside Australia; and
(d)
the contravention did not involve an Australian ship.
(3)
In deciding whether to consent under subclause (1) or (2), the Attorney‑General must have regard to the obligations of Australia under international law, including obligations under any agreement between:
(a)
Australia; and
(b)
another country or countries.

Clause 84 of Schedule 3A (heading)

Repeal the heading, substitute:

84Installing an international submarine cable without a permit

Paragraph 84(1)(a) of Schedule 3A

Omit “a submarine cable”, substitute “an international submarine cable”.

Subclause 84(3) of Schedule 3A

Omit “a submarine cable”, substitute “an international submarine cable”.

After clause 84 of Schedule 3A

Insert:

84AInstalling a domestic submarine cable without a permit

(1)
A person commits an offence if:
(a)
the person installs, or causes to be installed, a domestic submarine cable; and
(b)
the cable is installed in a protection zone; and
(c)
the person does not have a permit under this Part authorising the installation of the cable in the place in which it is installed.
Penalty: 200 penalty units.
(2)
Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code.
(3)
Subclause (1) does not apply to a person who installs a domestic submarine cable on behalf of a carrier, if the carrier has a permit authorising the installation of the cable.
Note: The defendant bears an evidential burden in relation to the matters in subclause (3). See subsection 13.3(3) of the Criminal Code.
(4)
Subclause (1) does not apply to a domestic submarine cable that a person installed, or began to install, before the commencement of this clause.
Note: The defendant bears an evidential burden in relation to the matters in subclause (4). See subsection 13.3(3) of the Criminal Code.

Clause 85 of Schedule 3A

Before “A carrier”, insert “(1)”.

At the end of clause 85 of Schedule 3A

Add:
(2)
A proceeding for an offence committed by a person against subclause (1) must not be commenced without the written consent of the Attorney‑General if:
(a)
the person is a foreign national; and
(b)
the offence involved an act or omission outside Australia; and
(c)
the offence did not involve an Australian ship.
(3)
In deciding whether to consent under subclause (2), the Attorney‑General must have regard to the obligations of Australia under international law, including obligations under any agreement between:
(a)
Australia; and
(b)
another country or countries.

Clause 86 of Schedule 3A (heading)

Repeal the heading, substitute:

86Failing to comply with ACMA direction to remove an unlawfully installed international submarine cable

Subclause 86(1) of Schedule 3A

Omit “a submarine cable” (first occurring), substitute “an international submarine cable”.

Subclause 86(3) of Schedule 3A

Omit “a submarine cable”, substitute “an international submarine cable”.

After clause 86 of Schedule 3A

Insert:

86AFailing to comply with ACMA direction to remove an unlawfully installed domestic submarine cable

(1)
The ACMA may direct a carrier to remove a domestic submarine cable if:
(a)
the carrier installed the submarine cable, or caused it to be installed, in a protection zone without a permit under this Part authorising the installation; or
(b)
the carrier is installing the submarine cable, or causing it to be installed, in a protection zone without a permit under this Part authorising the installation.
(2)
A carrier who does not comply with a direction under subclause (1) commits an offence.
Penalty: 200 penalty units.
(3)
The ACMA must not give a direction to a carrier under subclause (1) in relation to a domestic submarine cable that the carrier installed, or began to install, before the commencement of this clause.

Clause 89 of Schedule 3A

Repeal the clause, substitute:

89Delegation by the Secretary of the Attorney‑General’s Department

(1)
The Secretary of the Attorney‑General’s Department may, by writing, delegate any or all of his or her powers under this Schedule to an SES employee, or acting SES employee, in the Attorney‑General’s Department.
(2)
A delegate must comply with any directions of the Secretary of the Attorney‑General’s Department.

Paragraph 1(za) of Schedule 4

Omit “or to grant such a permit subject to conditions”, substitute “where none of the reasons for the decision relate to security (within the meaning of that Schedule)”.

After paragraph 1(za) of Schedule 4

Insert:
(zaa)
a decision under clause 58A of Schedule 3A to:
(i)
specify a condition in a protection zone installation permit (other than a condition specified under paragraph 58A(1)(d) of Schedule 3A); or
(ii)
vary a condition of a protection zone installation permit (other than a condition specified under paragraph 58A(1)(d) of Schedule 3A);

Paragraph 1(zd) of Schedule 4

Omit “or to grant such a permit subject to conditions”, substitute “where none of the reasons for the decision relate to security (within the meaning of that Schedule)”.

After paragraph 1(zd) of Schedule 4

Insert:
(zda)
a decision under clause 73A of Schedule 3A to:
(i)
specify a condition in a non‑protection zone installation permit (other than a condition specified under paragraph 73A(1)(c) of Schedule 3A); or
(ii)
vary a condition of a non‑protection zone installation permit (other than a condition specified under paragraph 73A(1)(c) of Schedule 3A);

Part 2Application and transitional provisions

89
Application—clause 7 of Schedule 3A to the Telecommunications Act 1997
The amendments of clause 7 of Schedule 3A to the Telecommunications Act 1997 made by this Schedule apply in relation to a request made after the commencement of this item.
90
Transitional—clause 10 of Schedule 3A to the Telecommunications Act 1997
(1) This item applies to a declaration of a protection zone if:
(a)
the declaration was in force immediately before the commencement of this item; and
(b)
in accordance with clause 10 of Schedule 3A to the Telecommunications Act 1997, the declaration specified activities that are prohibited in the protection zone.
(2) An activity is taken not to be specified in the declaration in accordance with that clause if:
(a)
the activity is carried on by, or on behalf of, a person who owns or operates a submarine cable in the protection zone; and
(b)
the activity consists of the maintenance or repair of the submarine cable.
91
Transitional—clause 11 of Schedule 3A to the Telecommunications Act 1997
(1) This item applies to a declaration of a protection zone if:
(a)
the declaration was in force immediately before the commencement of this item; and
(b)
in accordance with clause 11 of Schedule 3A to the Telecommunications Act 1997, the declaration specified restrictions that are imposed in the protection zone on activities in the protection zone.
(2) Those restrictions do not apply to an activity if:
(a)
the activity is carried on by, or on behalf of, a person who owns or operates a submarine cable in the protection zone; and
(b)
the activity consists of the maintenance or repair of the submarine cable.
92
Application—clauses 17 and 17A of Schedule 3A to the Telecommunications Act 1997
(1) Despite the repeal of clause 17 of Schedule 3A to the Telecommunications Act 1997 by this Schedule, that clause continues to apply, after the commencement of this item, in relation to a proposal developed under clause 15 of Schedule 3A to the Telecommunications Act 1997 before the commencement of this item, as if that repeal had not happened.
(2) Clauses 17 and 17A of Schedule 3A to the Telecommunications Act 1997 as amended by this Schedule apply in relation to a proposal developed under clause 15 of Schedule 3A to the Telecommunications Act 1997 after the commencement of this item.
93
Application—clauses 32 and 32A of Schedule 3A to the Telecommunications Act 1997
(1) Despite the repeal of clause 32 of Schedule 3A to the Telecommunications Act 1997 by this Schedule, that clause continues to apply, after the commencement of this item, in relation to a proposal developed under clause 30 of Schedule 3A to the Telecommunications Act 1997 before the commencement of this item, as if that repeal had not happened.
(2) Clauses 32 and 32A of Schedule 3A to the Telecommunications Act 1997 as amended by this Schedule apply in relation to a proposal developed under clause 30 of Schedule 3A to the Telecommunications Act 1997 after the commencement of this item.
94
Application—protection zone installation permit
The amendments of Division 2 of Part 3 of Schedule 3A to the Telecommunications Act 1997 by this Schedule (other than amendments relating to the conditions of a protection zone installation permit) apply in relation to:
(a)
an application for a protection zone installation permit if the application was made after the commencement of this item; and
(b)
a decision to grant or to refuse to grant a protection zone installation permit if the application for the permit was made after the commencement of this item.
95
Application—non‑protection zone installation permit
The amendments of Division 3 of Part 3 of Schedule 3A to the Telecommunications Act 1997 by this Schedule (other than amendments relating to the conditions of a non‑protection zone installation permit) apply in relation to:
(a)
an application for a non‑protection zone installation permit if the application was made after the commencement of this item; and
(b)
a decision to grant or to refuse to grant a non‑protection zone installation permit if the application for the permit was made after the commencement of this item.
96
Transitional—non‑protection zone installation permit
(1) This item applies to a non‑protection zone installation permit if:
(a)
the permit was granted before the commencement of this item under repealed subclause 69(1) of Schedule 3A to the Telecommunications Act 1997; or
(b)
the permit was granted after the commencement of this item under repealed subclause 69(1) of Schedule 3A to the Telecommunications Act 1997, as continued in force by this Part.
(2) If paragraph (1)(a) applies, the permit has effect, after the commencement of this item, as if it authorised the installation, in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory, of the submarine cable or cables specified in the application for the permit.
(3) If paragraph (1)(b) applies, the permit has effect as if it authorised the installation, in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory, of the submarine cable or cables specified in the application for the permit.
97
Transitional—specified conditions of protection zone installation permits
(1) This item applies to a condition of a protection zone installation permit if:
(a)
the condition was specified in the permit by the ACMA under repealed subclause 56(2) of Schedule 3A to the Telecommunications Act 1997; and
(b)
the condition was in force immediately before the commencement of this item.
(2) The condition has effect, after the commencement of this item, as if it had been specified in the permit under paragraph 58A(1)(e) of Schedule 3A to the Telecommunications Act 1997 as amended by this Schedule.
98
Transitional—distance‑related conditions of protection zone installation permits
Paragraphs 58A(1)(a) and (b) of Schedule 3A to the Telecommunications Act 1997 as amended by this Schedule do not apply to a protection zone installation permit that was in force immediately before the commencement of this item.
99
Transitional—specified conditions of non‑protection zone installation permits
(1) This item applies to a condition of a non‑protection zone installation permit if:
(a)
the condition was specified in the permit by the ACMA under repealed subclause 69(2) of Schedule 3A to the Telecommunications Act 1997; and
(b)
the condition was in force immediately before the commencement of this item.
(2) The condition has effect, after the commencement of this item, as if it had been specified in the permit under paragraph 73A(1)(d) of Schedule 3A to the Telecommunications Act 1997 as amended by this Schedule.
100
Transitional—distance‑related conditions of non‑protection zone installation permits
Paragraph 73A(1)(a) of Schedule 3A to the Telecommunications Act 1997 as amended by this Schedule does not apply to a non‑protection zone installation permit that was in force immediately before the commencement of this item.
101
Transitional—submarine cable installed in the offshore areas of certain external Territories
(1) Divisions 4 and 5 of Part 3 of Schedule 3A to the Telecommunications Act 1997 do not apply in relation to a submarine cable if:
(a)
the cable is or was installed in the offshore area of an external Territory (other than an eligible Territory); and
(b)
the installation of the cable began before the commencement of this item; and
(c)
the cable would not be a submarine cable if it were assumed that clause 2A of that Schedule had not been enacted.
(2) For the purposes of this item, offshore area, in relation to a Territory, has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

[Minister’s second reading speech made in—

House of Representatives on 14 November 2013

Senate on 5 December 2013]

(197/13)