EXPLANATORY STATEMENT
Telecommunications Act 1997
Determination under subsection 51(1) (No. 1 of 2002)
Issued by the authority of the Minister for Communications,
Information Technology and the Arts
Subsection 51(1) of the Telecommunications Act 1997 (Cth) (the Act) enables the Minister to determine that section 42 of the Act does not apply in relation to:
(a) a specified network unit; or
(b) a specified person; or
(c) a specified use of a network unit.
Section 42 of the Act provides that a network unit must not be used to supply a carriage service to the public without a carrier licence or a nominated carrier declaration (which enables a nominated carrier to assume the responsibilities imposed on another carrier in relation to specified network units). Therefore subsection 51(1) of the Act in effect enables the Minister to exempt a specified network unit, a specified person, or a specified use of a network unit, from the licensing requirements.
Subsection 51(4) of the Act provides that an instrument under section 51 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 (Cth).
The accompanying determination provides that section 42 of the Act does not apply to a wireless network unit where:
- the unit is used to supply a carriage service to users where the users are not in a distinct place from the Wireless Network Unit; and
- where a carrier licence or nominated carrier declaration would not be required for a fixed line network delivering the same service in the same place.
Background
Wireless local area networks (LANs) are broadband wireless communication technologies. They were originally designed for business local area networks. However their commercial use has grown beyond their original purpose and they are currently being used in a variety of other commercial settings. One of their commercial uses includes their use in ‘hotspots’ which provide connectivity to the Internet to customers in a localised area, such as an Internet cafe, a hotel, or an airport lounge.
Concern has been raised that currently under the Act such networks require a carrier licence or nominated carrier declaration to supply such a service on a single premises, while fixed line networks delivering the same service do not.
The effect of the determination is that a carrier licence or nominated carrier declaration is not required to use a Wireless Network Unit where paragraphs (a) and (b) of the determination are satisfied.
The purpose of the determination is to ensure that the treatment of different technologies for the purposes of licensing under the Act is the same. It will address an anomaly in the carrier licensing regime which has arisen as a result of the emergence of wireless LANs as a substitute for wired networks.
Determination
The accompanying determination provides that section 42 of the Act does not apply to a Wireless Network Unit where the unit is used to supply a carriage service to users where the users are in the same place (ie not a distinct place) as the Wireless Network Unit and where a fixed line network would not require a licence or nominated carrier declaration when delivering the same service in the same place.
A wireless network unit is defined as a network unit which is a base station that is part of a terrestrial radiocommunications access network. A base station that is part of a terrestrial radiocommunications access network has the same meaning as in the Act.
A distinct place is defined in section 36 of the Act. In essence places are distinct unless they are:
- in the same property (ie situated on a property subject to a single freehold or leasehold title);
- contiguous properties and the same person is the principal user of those properties; or
- the same eligible Territory (ie the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands or any prescribed external Territory, as defined in section 7 of the Act).
It is intended to cover places such as a hotel, airport lounge or Internet café.
A fixed line network is defined as a network made up of one or more line links. A line link has the same meaning as in the Act. Section 30 of the Act defines a line link.