EXPLANATORY STATEMENT
Telecommunications Act 1997
Telecommunications (Carrier Licence Exemption - NSW Telco Authority) Determination 2018
Issued by the Authority of the Minister for Communications and the Arts
Authority
Section 42 of the Telecommunications Act 1997 (the Act) provides that the owner of a network unit must not use that unit to supply a carriage service to the public unless the owner of the network unit holds a carrier licence or a nominated carrier declaration is in force in relation to the unit. For these purposes of the prohibition under section 42, the term ‘public’ includes any person outside the person’s ‘immediate circle’ as defined by section 23 of the Act.
Paragraph 51(1)(c) of the Act allows the Minister to determine that section 42 of the Act does not apply in relation to a specified use of a network unit. Subsection 51(2) of the Act provides that a determination under section 51 may be unconditional or subject to such conditions (if any) as are specified in the particular determination.
Purpose and operation
The Telecommunications (Carrier Licence Exemption - NSW Telco Authority) Determination 2018 (the Determination) exempts the New South Wales Telecommunications Authority (‘the NSW Telco Authority’) from the carrier licensing requirement in section 42 of the Act in relation to the use of its designated Government Radio Network communications infrastructure (‘the GRN’) for the purpose of supplying one or more carriage services to certain ‘permitted users’ for any voice or data communications necessary or desirable to perform, support or facilitate public safety activities and public safety functions. The exemption will apply from the commencement of the determination until the 3rd anniversary of the day the Determination commences.
The NSW Telco Authority is a NSW Government not-for-profit statutory authority, established by the Government Telecommunications Act 2018 (NSW) that operates the GRN on behalf of the NSW Government. The GRN provides a common platform for Government agencies and authorities, public utilities and other public service entities that use radio communications in the provision of important public safety activities and functions. The GRN provides extensive coverage and reliability, supporting effective communication between services, including during national or state emergencies.
Section 44 of the Act sets out, for the purposes of section 42, when a carriage service will be taken to be supplied to the public and specifically excludes the supply of services where an end user is within the ‘immediate circle’ of the network unit owner.
The Determination is needed to allow certain entities that have public safety functions and undertake public safety activities to use the GRN because those entities are outside the NSW Telco Authority’s ‘immediate circle’.
The exemption is not intended to affect the commercial supply of telecommunications services in the State of New South Wales. The NSW Telco Authority operates on a non-competitive cost recovery basis. Fees for the GRN are set by the NSW Telco Authority, based on methodology determined by the Independent Pricing and Remuneration Tribunal (IPART). In establishing this methodology, the IPART is required to consider a range of principles, including competitive neutrality. Competitive neutrality requires that public ownership confers no benefits on a government enterprise relative to private sector competitors. This means that the NSW Telco Authority is prevented from charging fees which would give it a competitive advantage when compared to other non-government enterprises.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
The Determination will cease to have effect on the 3rd anniversary of the day this instrument commences.
Consultation
The Department of Communications and the Arts consulted with Commonwealth Home Affairs portfolio, the NSW Telco Authority, the Australian Communications and Media Authority, Communications Alliance, Australian Mobile Telecommunications Association, Telstra Pty Ltd, Singtel Optus Pty Ltd, and Vodafone Pty Ltd on the proposed exemption.
Regulatory Impact
The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required for the Determination (OBPR ID 22395).
Statement of Compatibility with Human Rights
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment B.
Attachment A
Notes on the Telecommunications (Carrier Licence Exemption - NSW Telco Authority) Determination 2018
Section 1 - Name
Section 1 provides that the name of the instrument is the Telecommunications (Carrier Licence Exemption – NSW Telco Authority) Determination 2018.
Section 2 - Commencement
Section 2 provides that the instrument commences the day after it is registered on the Federal Register of Legislation.
Section 3 - Authority
Section 3 provides that the authority for the making of the Determination is in paragraph 51(1)(c) and subsection 51(2) of the Telecommunications Act 1997 (the Act).
Section 4 - Cessation
Section 4 provides that the Determination ceases to have effect on the 3rd anniversary of the day the Determination commences.
Section 5 - Definitions
Section 5 defines various words and phrases that are used in the Determination.
The note at the beginning of section 5 provides that a number of expressions used in the instrument are defined in the Act. By virtue of paragraph 13(1)(b) of the Legislation Act 2003, those expressions have the same meaning as in the enabling legislation, as in force from time to time. Those terms include ‘network unit’, ‘line link’ and ‘designated radiocommunications facilities’.
The term ABN in the instrument means Australian Business Number.
The ACN in the instrument means Australian Company Number.
The term Act in the instrument means the Telecommunications Act 1997.
The phrase designated Government Radio Network communications infrastructure means one or more network units that possess all of the following characteristics.
Firstly, the network units must be either owned or otherwise vested in the NSW Telco Authority in accordance with the Government Telecommunications Act 2018 (NSW). Consequently the exemption does not prohibit the use of radio communications technologies where the network units which supply those technologies or standards are, for example, owned by another licenced carrier, or are subject to a nominated carrier declaration. In addition, the exemption does not impose restrictions on the technologies employed by user equipment that does not comprise a network unit.
Secondly, the network units must be comprised of line links and designated radiocommunications facilities.
Thirdly, subject to section 7(1)(a), the network units must not utilise any radio communications technologies or technology standards that would have the effect of substantially altering the technical capability (as that capability stood as at the day the instrument is made) of any one or more of the network units. The provision is intended to allow the NSW TA to make maintain the network, but more significant upgrades to the technologies employed would be beyond the scope of the exemption.
Fourth, the network units must be used to supply trunked radio communications. Trunked radio communications networks are evolved radiocommunications networks which employ contemporary backhaul technologies to manage and support traditional radiofrequency transmission systems. Backhaul technologies allow trunked radio communications networks to provide the capacity, coverage, accessibility, redundancy, security and network management required by public safety entities.
Fifth, the network units must be situated in the State of New South Wales, the State of South Australia, the State of Queensland, the State of Victoria or the Australian Capital Territory ‑ jurisdictions in which, at the time of the making of the Determination, the NSW Telco Authority owned telecommunications infrastructure comprising part of the GRN.
Finally, network units must be in existence during the 3 year period commencing from the day the instrument is made. This criterion recognises that the number of network units may change over time to reflect operational requirements.
Only those network units comprising the GRN which satisfy all of the above criterion fall within the scope of the Determination. Pursuant to section 42 of the Act, any other network units owned or operated by NSW Telco Authority must not be used to supply carriage services outside of the immediate circle of the NSW Telco Authority, unless the NSW Telco Authority obtains a carrier licence or nominated carrier declaration is in force in relation to those units.
The intention is to ensure that the exemption covers the technologies associated with the GRN at the time of making the instrument, while allowing scope for the NSW Telco Authority to reduce or expand the number of network units using that technology mix. The instrument is not intended to exempt the NSW Telco Authority from carrier licensing requirements in relation to the provision of any other carriage services using other technologies within the customer access parts of the GRN, such as mobile telephone or mobile broadband services.
NSW Telco Authority in the instrument means the NSW Government Telecommunications Authority established by the Government Telecommunications Act 2018 (NSW).
Permitted Purpose in the instrument means any voice or data communications necessary or desirable to perform, support or facilitate public safety activities or public safety functions.
The definition of Permitted User covers four classes of entities:
- a department, agency, authority, institution or instrumentality of the Commonwealth of Australia; or
- a department, agency, authority, institution or instrumentality (including of local government) of the State of New South Wales; or
- a corporation owned wholly by the State of New South Wales; or
- an entity specified in the list at Schedule 1, even if its name is later changed.
The entities listed at Schedule 1 are non-government entities that provide services using the GRN. This definition is intended to ensure that the exemption covers the user base of the GRN at the time of the issuing of the Determination. Any expansion of the user-base would therefore enliven the carrier licensing requirements in the Act, absent an amendment to the Determination. A provision allowing for other persons to use the GRN to prepare for and deal with emergencies and natural disasters is provided in section 6 outlined below.
radio communications technology for the purposes of this instrument is defined to include, but is not limited to, any of the following technology types:
- Global System for Mobile Communications (GSM); or
- Code Division Multiple Access (CDMA); or
- Universal Mobile Telecommunications System (UMTS); or
- Long Term Evolution (LTE); or
- Wireless Fidelity (Wi Fi); or
- Microwave; or
- Fifth generation cellular mobile communications (5G); or
- Fifth generation New Radio (5G NR); or
- Bluetooth.
Section 6 - Exemption
Section 6 provides that subject to conditions set out in section 7 of the Determination, section 42 of the Act does not apply in relation to the use of the GRN for the purpose of supplying one or more carriage services to Permitted Users for a Permitted Purpose.
Section 6 also provides that the GRN may be used by any person in order to prepare for or deal with an emergency or natural disaster. This will allow the NSW Telco Authority to use the network units comprising the GRN to supply a carriage service to a person that is a not Permitted User to prepare for or deal with disasters and emergencies.
The terms ‘prepare for or deal with an emergency or natural disaster’ are not defined and are intended to have their ordinary natural meaning. This is intended to afford the NSW TA flexibility to provide services more broadly beyond its immediate circle in relation to emergencies and natural disasters. To avoid doubt, it is intended that the term ‘person’ would capture (but not be limited to) both an ‘agency’, and an ‘emergency’ as defined in the State Emergency and Rescue Management Act 1989 (NSW).
Section 7 – Conditions
Section 7 provides that for the purposes of section 6 of the instrument, the use of Long Term Evolution (LTE), Wireless Fidelity (Wi Fi) or Microwave technologies is permitted in the designated Government Radio Network communications infrastructure, where it occurs only to the extent that such use is necessary for the NSW TA to provide point-to-point connectivity.
This provision is intended to ensure that the NSW Telco Authority can continue to use Long Term Evolution (LTE), Wireless Fidelity (Wi Fi) and Microwave technologies to provide point-to-point data links within the GRN to supply the backhaul for its trunked radio communications service. However, the use of these technologies cannot be expanded to supply additional carriage services or provide a customer access network.
Section 7 also provides that for the purposes of section 6 of the instrument, the NSW Telco Authority’s Managing Director must provide a written report to the Australian Communications and Media Authority (ACMA) within 30 days from the commencement of the instrument. Under this condition, the written report must set out the following:
- locations of the network units comprising the GRN as at the commencement date;
- the legal name and associated identifier, such as an Australian Business Number or Australian Company Number, of each user of the GRN for each reporting calendar year; and
- the technology composition of each of the network units as at the commencement date.
In addition, the NSW Telco Authority’s Managing Director must provide a written report to the ACMA within 30 days after the end of each calendar year during which the Determination is in force. Under this condition, the written report must set out the following:
- the locations of the network units comprising the GRN as at the end of the calendar year;
- the legal name and associated identifier, such as an Australian Business Number or Australian Company Number, of each user of the GRN for each reporting calendar year
- the particulars of any substantial changes, technological or otherwise, made to the GRN or its composition at any time during the reporting calendar year.
This provision is intended to ensure that the ACMA is regularly provided with information to ensure that the GRN continues to be used within the scope of the exemption and to assist with compliance. This report will also allow for an annual assessment of the ongoing appropriateness of the exemption, including its impact (if any) on competition and the broader telecommunications sector.
Schedule 1 – Specified Permitted Users
Schedule 1 to the Determination lists the Specified Permitted Users referred to in Section 5 of the Determination. The entities listed at Schedule 1 are non-government entities that are current users of the GRN.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Carrier Licence Exemption – NSW Telco Authority) Determination 2018
This Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
The Telecommunications (Carrier Licence Exemption- NSW Telco Authority) Determination 2018 (‘the Determination’), subject to specified conditions, exempts the NSW Telco Authority from the requirement to hold a carrier licence under section 42 of the Telecommunications Act 1997, in relation to the use of designated Government Radio Network (GRN) communications infrastructure, for the purpose of supplying one or more carriage services to a limited range of entities for voice or data communications necessary or desirable to facilitate public safety activities or public safety functions.
The NSW Telco Authority is a NSW Government not-for-profit statutory authority that operates the designated GRN communications infrastructure on behalf of the NSW Government. As a dedicated network, the designated GRN communications infrastructure provides extensive coverage and reliability, supporting effective communication between services, including during emergencies.
The Determination is necessary so that the NSW Telco Authority can provide services which have public safety benefits to departments and agencies of the Commonwealth and other public safety entities that fall outside the immediate circle of the Authority. The entities specified in the exemption include Commonwealth agencies, departments and a select number of other entities serving the public interest (such as RSCPA Australia and the Australian Rail Track Corporation).
The NSW Telco Authority will need to provide annual reports to the Australian Communications and Media Authority about the network, to assist with compliance with the terms of the exemption.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Human rights implications
This Determination does not engage any of the applicable rights or freedoms.
Conclusion
This Determination is compatible with human rights as it does not raise any human rights issues.