EXPLANATORY STATEMENT
Issued by the authority of the Minister for Communications
Telecommunications Act 1997
Telecommunications (Carrier Licence Exemption) (Queensland rail and electricity services) Amendment Determination 2023
Authority
Paragraph 51(1)(c) of the Telecommunications Act 1997 (the Act) enables the Minister to determine that section 42 of the Act does not apply in relation to a specified use of a network unit.
Section 42 of the Act prohibits the use of network units to supply carriage services to the public without the owner or owners having a carrier licence or there being a nominated carrier declaration in force (which enables a nominated telecommunications carrier to assume the responsibilities imposed on another entity in relation to specified network units).
Purpose
The purpose of the Telecommunications (Carrier Licence Exemption) (Queensland rail and electricity services) Amendment Determination 2023 (the Determination) is to extend the duration of the Telecommunications (Carrier Licence Exemption—Use for specified Queensland rail and electricity services) Determination 2021 (the 2021 Determination) by 5 years.
The 2021 Determination exempts specified uses of network units owned by Aurizon Holdings Limited (Aurizon), Queensland Rail Limited (Queensland Rail), Queensland Treasury Holdings Pty Ltd (QTH), and any related bodies corporate (‘the rail-related group of companies’), and Queensland Electricity Transmission Corporation Limited (Powerlink), from section 42 of the Act.
The exemption has the technical effect of removing the requirement for these telecommunications infrastructure (network unit) owners to hold a carrier licence or arrange for a nominated carrier declaration to be held in respect of the specified use of the network units.
The Determination will continue to enable Powerlink and the rail-related group of companies to continue the practice of sharing communications network infrastructure for the purpose of carrying on their respective electricity transmission and railway businesses. It eliminates the need to duplicate costly infrastructure, improves the management and safety of rail and electricity assets and results in financial benefits for the entities involved, and their customers.
Pursuant to paragraph 51(1)(c) of the Telecommunications Act 1997 and in reliance on section 33(3) of the Acts Interpretation Act 1901, the Determination amends the 2021 Determination.
Background
Powerlink, Queensland Rail and Aurizon operate backhaul fibre optic cable networks that are principally used for communications purposes associated with conducting their respective electricity and transport businesses. However, these companies also use each other’s network units. Examples of those uses include: monitoring electricity load and capacity requirements; rail signalling; and communications for train services. This shared use removes the need to duplicate costly infrastructure and allows the entities to operate in a cost-effective manner. This cross-utilisation of infrastructure is limited to infrastructure located in Queensland.
As part of the 2021 Determination, the then Minister repealed the earlier exemption, which was due to sunset on 1 July 2021. At that time, Parliament was considering the Security Legislation Amendment (Critical Infrastructure) Bill 2020, and the two year limit was to allow for the instrument to be re-evaluated in light of any interactions with that bill if it was passed. The Security Legislation Amendment (Critical Infrastructure) Bill 2020 (SOCI Bill) was enacted in 2021, and now train and electricity infrastructure is subject to additional critical infrastructure protections.
An extension of the duration of the carrier licence exemptions is considered appropriate on this occasion because the reasons for granting the 2012 Determination have not altered in any significant respect, save the passage of the SOCI Bill. A continuation of the exemption supports the long-term interests of end-users.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003 (Cth) (Legislation Act).
Impact Analysis
The Office of Impact Analysis (OIA) has advised that this proposal with reference number OIA23-05059 is unlikely to have a more than minor impact, as these are limited to modest annual reporting conditions on three businesses. As such, the preparation of an Impact Analysis is not required.
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 A.
Consultation
The department consulted the Australian Communications Media Authority, Australian Competition and Consumer Commission, the Attorney-General’s Department, the Department of Home Affairs, Communications Alliance and the applicants, Powerlink, Aurizon, Queensland Rail, and the rail-related group of companies in the development of the Determination.
Details of the accompanying Determination are set out in the notes to clauses Attachment B.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Carrier Licence Exemption) (Queensland rail and electricity services) Amendment Determination 2023
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
Paragraph 51(1)(c) of the Telecommunications Act 1997 (the Act) enables the Minister to determine that the carrier licensing obligations under section 42 of that Act do not apply in relation to a specified use of a network unit.
The Telecommunications (Carrier Licence Exemption) (Queensland rail and electricity services) Amendment Determination 2023 (the Determination) amends the repeal date at section 4 of the Telecommunications (Carrier Licence Exemption—Use for specified Queensland rail and electricity services) Determination 2021 (the 2021 Determination). The effect of the amendment is to extend the exemption by 5 years.
The 2021 Determination exempted specified uses of network units owned by Aurizon Holdings Limited, Queensland Rail Limited and Queensland Treasury Holdings Pty Ltd (or any related bodies corporate – collectively ‘the rail-related group of companies’), and Electricity Transmission Corporation Limited (Powerlink) from the carrier licencing requirement in section 42 of the Act.
The specified uses in the 2021 Determination relate to the supply of carriage services for the workings of train services and electricity. The effect of the Determination is that these companies will not need a carrier licence or nominated carrier declaration in respect of the inter-company use of their respective network units for a further 5 years (until 30 June 2028).
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.
ATTACHMENT B
Details of the Telecommunications (Carrier Licence Exemption) (Queensland rail and electricity services) Amendment Determination 2023
Section 1 – Name of the Determination
Section 1 of the Determination provides that the name of the Determination is the Telecommunications (Carrier Licence Exemption) (Queensland rail and electricity services) Amendment Determination 2023.
Section 2 – Commencement
Section 2 provides that the Determination commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
Section 3 provides that this instrument is made under paragraph 51(1)(c) of the Telecommunications Act 1997.
Section 4 – Schedules
Section 4 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Schedule 1 amends section 4 of the Telecommunications (Carrier Licence Exemption—Use for specified Queensland rail and electricity services) Determination 2021 such that the repeal date of this instrument is changed from 1 July 2023 to 1 July 2028.