Telecommunications Code of Practice 1997 (Amendment No. 1 of 2002)

Administered by Department of Communications and the Arts

Legislation au F2004B00452 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the authority of the Minister for

Communications, Information Technology and the Arts

 

Telecommunications Act 1997

 

Telecommunications Code of Practice 1997

(Amendment No. 1 of 2002)

 

Divisions 2, 3 and 4 of Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Act) provides authority for telecommunications carriers to inspect land, maintain facilities or install any declared ‘low-impact facilities’ or temporary defence facilities.  Other installation of facilities is regulated under State or Territory law and, in the case of environmentally sensitive projects, also by the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

 

Division 5 of Part 1 of Schedule 3 sets out the conditions under which these activities may be conducted.  Clause 15 in this Division provides that the Minister for Communications, Information Technology and the Arts may, by written instrument, make a Code of Practice setting out conditions that are to be complied with by carriers in relation to any or all of the activities covered in Division 2, 3 or 4 (other than activities covered by a facility installation permit).  Subclause 15(2) of Schedule 3 to the Act requires that a carrier comply with the Code of Practice.

 

The Telecommunications Code of Practice 1997 (the Code) was made on 29 June 1997 and came into effect on 1 July 1997.

 

The purpose of the Telecommunications Code of Practice 1997 (Amendment No. 1 of 2002) (the amending instrument) is to clarify the circumstances in which telecommunications carriers must refer objections from land owners or occupiers to the Telecommunications Industry Ombudsman under the Code.

 

NOTES ON AMENDMENTS

 

Clause 1 – Name of Determination

 

Clause 1 of the amending instrument provides that the name of the instrument is the Telecommunications Code of Practice 1997(Amendment No. 1 of 2002).

 

Clause 2 – Commencement

 

Clause 2 of the amending instrument provides that it comes into effect on notification in the Commonwealth of Australia Gazette.

 

Clause 3 – Amendment of the Telecommunications Code of Practice 1997

 

Clause 3 of the amending instrument provides that Schedule 1 to the instrument amends the Code.

 

Schedule 1 – Amendment of the Telecommunications Code of Practice 1997

 

Item 1 – Substitution of section 2.35

 

Division 5 of Part 5 of Chapter 2 of the Code deals with the circumstances in which a land owner or occupier may make an objection to the Telecommunications Industry Ombudsman (TIO) about a carrier’s proposed land entry activities. 

 

Section 2.35 of the Code provides that Division 5 applies if:

 

(a)                the objection is not resolved by agreement between the carrier and objector; and
 

(b)               the objector is not satisfied with the carrier’s response to the objection; and
 

(c)                the objection comes, in whole or part, within the TIO’s jurisdiction.

 

Some carriers have argued that paragraph 2.35(c) imposes a threshold test and that the obligation by a carrier to refer an objection to the TIO does not arise until the carrier is satisfied on objective grounds that that threshold test is satisfied.  This interpretation is not in accordance with the spirit of the Code and potentially places an objector at a serious disadvantage.  The better view is that a carrier is bound to refer an objection to the TIO and that it is a matter for the TIO, in the first instance, to determine whether the objection is within the TIO’s jurisdiction.

 

To put this matter beyond doubt and to ensure that section 2.35 does not allow a carrier to restrict the referral of objections to the TIO on the basis of jurisdiction, item 1 of Schedule 1 to the amending instrument removes paragraph (c) from section 2.35.  The issue of the TIO’s jurisdiction and whether consideration of an objection should be refused, is a matter for the TIO to decide in the first instance after the initial referral of an objection.

 

A related amendment is made by item 2.

 

Item 2 – Substitution of section 2.37

 

Section 2.37 of the Code provides that if the TIO gives a direction to a carrier about the way in which the carrier should engage in a land entry activity, the carrier must comply with the direction.

 

Item 2 of Schedule 1 to the amending instrument makes this requirement subject to a new subsection 2.37(2) which provides that section 2.37 applies only if the objection which is the subject of the direction comes, in whole or in part, within the jurisdiction of the TIO.

 

This amendment is related to the amendment made by item 1.  It emphasises that the issue of the TIO’s jurisdiction in the context of making a direction to a carrier in connection with an objection about the carrier’s proposed land entry activity is a matter for the TIO in the first instance.

 

Item 3 – Substitution of section 4.36

 

Division 5 of Part 5 of Chapter 4 of the Code deals with the circumstances in which a land owner or occupier may make an objection to the Telecommunications Industry Ombudsman (TIO) about a carrier’s proposed low-impact facility activities. 

 

Section 4.36 of the Code provides that Division 5 applies if:

 

(a)                the objection is not resolved by agreement between the carrier and objector; and
 

(b)               the objector is not satisfied with the carrier’s response to the objection; and
 

(c)                the objection comes, in whole or part, within the TIO’s jurisdiction.

 

Some carriers have argued that paragraph 4.36(c) imposes a threshold test and that the obligation by a carrier to refer an objection to the TIO does not arise until the carrier is satisfied on objective grounds that that threshold test is satisfied.  This interpretation is not in accordance with the spirit of the Code and potentially places an objector at a serious disadvantage.  The better view is that a carrier is bound to refer an objection to the TIO and that it is a matter for the TIO, in the first instance, to determine whether the objection is within the TIO’s jurisdiction.

 

To put this matter beyond doubt and to ensure that section 4.36 does not allow a carrier to restrict the referral of objections to the TIO on the basis of jurisdiction, item 3 of Schedule 1 to the amending instrument removes paragraph (c) from section 4.36.  The issue of the TIO’s jurisdiction and whether consideration of an objection should be refused, is a matter for the TIO to decide in the first instance after the initial referral of an objection.

 

A related amendment is made by item 4.

 

Item 4 – Substitution of section 4.38

 

Section 4.38 of the Code provides that if the TIO gives a direction to a carrier about the way in which the carrier should engage in a low-impact facility activity, the carrier must comply with the direction.

 

Item 4 of Schedule 1 to the amending instrument makes this requirement subject to a new subsection 4.38(2) which provides that section 4.38 applies only if the objection which is the subject of the direction comes, in whole or in part, within the jurisdiction of the TIO.

 

This amendment is related to the amendment made by item 3.  It emphasises that the issue of the TIO’s jurisdiction in the context of making a direction to a carrier in connection with an objection about the carrier’s proposed low-impact facility activity is a matter for the TIO in the first instance.

 

Item 5 – Substitution of section 6.35

 

Division 5 of Part 5 of Chapter 6 of the Code deals with the circumstances in which a land owner or occupier may make an objection to the Telecommunications Industry Ombudsman (TIO) about a carrier’s proposed maintenance activities. 

 

Section 6.35 of the Code provides that Division 5 applies if:

 

(a)                the objection is not resolved by agreement between the carrier and objector; and
 

(b)               the objector is not satisfied with the carrier’s response to the objection; and
 

(c)                the objection comes, in whole or part, within the TIO’s jurisdiction.

 

Some carriers have argued that paragraph 6.35(c) imposes a threshold test and that the obligation by a carrier to refer an objection to the TIO does not arise until the carrier is satisfied on objective grounds that that threshold test is satisfied.  This interpretation is not in accordance with the spirit of the Code and potentially places an objector at a serious disadvantage.  The better view is that a carrier is bound to refer an objection to the TIO and that it is a matter for the TIO, in the first instance, to determine whether the objection is within the TIO’s jurisdiction.

 

To put this matter beyond doubt and to ensure that section 6.35 does not allow a carrier to restrict the referral of objections to the TIO on the basis of jurisdiction, item 5 of Schedule 1 to the amending instrument removes paragraph (c) from section 6.35.  The issue of the TIO’s jurisdiction and whether consideration of an objection should be refused, is a matter for the TIO to decide in the first instance after the initial referral of an objection.

 

A related amendment is made by item 6.

 

Item 6 – Substitution of section 6.37

 

Section 6.37 of the Code provides that if the TIO gives a direction to a carrier about the way in which the carrier should engage in a maintenance activity, the carrier must comply with the direction.

 

Item 6 of Schedule 1 to the amending instrument makes this requirement subject to a new subsection 6.37(2) which provides that section 6.37 applies only if the objection which is the subject of the direction comes, in whole or in part, within the jurisdiction of the TIO.

 

This amendment is related to the amendment made by item 5.  It emphasises that the issue of the TIO’s jurisdiction in the context of making a direction to a carrier in connection with an objection about the carrier’s proposed maintenance activity is a matter for the TIO in the first instance.

 

 

Overview

The Telecommunications Code of Practice 1997 (Amendment No. 1 of 2002) amends the Telecommunications Code of Practice 1997 to clarify the circumstances in which telecommunications carriers must refer objections from landowners or occupiers to the Telecommunications Industry Ombudsman. The Telecommunications Code of Practice 1997 was established under the Telecommunications Act 1997 and came into effect on 1 July 1997. The 2002 amendment was introduced by the Commonwealth Parliament and aims to ensure that carriers cannot restrict the referral of objections to the Telecommunications Industry Ombudsman based on jurisdictional concerns. The amendments specifically remove jurisdictional thresholds from certain sections of the Code, making it clear that it is the Ombudsman's role to determine jurisdiction after an objection has been referred. The problem the legislation addresses is the potential for telecommunications carriers to interpret jurisdictional clauses in a way that delays or prevents the referral of objections to the Ombudsman, thereby disadvantaging landowners or occupiers. By removing the jurisdictional condition from the Code, the amendments ensure that the Ombudsman is able to consider all objections initially referred to them, thereby upholding the spirit of the Code and protecting the rights of objectors.

Scope and Application

The Telecommunications Code of Practice 1997, as amended by the Telecommunications Code of Practice 1997 (Amendment No. 1 of 2002), applies to telecommunications carriers, land owners and occupiers, and the Telecommunications Industry Ombudsman (TIO). It sets out conditions that telecommunications carriers must comply with when inspecting land, maintaining facilities, or installing low-impact facilities or temporary defence facilities. The Act applies on a national level across Australia, and while it provides a framework for the installation of telecommunications facilities, other installations are regulated under State or Territory laws and, in the case of environmentally sensitive projects, also by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The Code of Practice extends the application of the Act through subordinate instruments, clarifying the circumstances in which telecommunications carriers must refer objections from landowners or occupiers to the TIO. This includes removing jurisdictional threshold tests that previously allowed carriers to delay or restrict the referral of objections, ensuring that the TIO, rather than the carrier, is the initial determinant of jurisdiction over objections.

Key Provisions

The Telecommunications Code of Practice 1997 (Amendment No. 1 of 2002) amends the original Telecommunications Code of Practice 1997 by clarifying the circumstances under which telecommunications carriers must refer objections from land owners or occupiers to the Telecommunications Industry Ombudsman (TIO). The main operative sections in this amendment are sections 2.35, 2.37, 4.36, 4.38, 6.35, and 6.37. These sections previously contained a clause that required the carrier to ensure the objection came within the TIO's jurisdiction before referring it. The amendments remove this clause to ensure that carriers must refer objections to the TIO without imposing a threshold test on their jurisdiction. The obligations imposed on telecommunications carriers by these sections are to refer any unresolved objections from landowners or occupiers to the TIO. The carriers must comply with the TIO's direction on how to engage in land entry, low-impact facility, or maintenance activities. These obligations are intended to ensure that objections are properly considered and resolved by the TIO. The carriers must act promptly in referring objections and comply with any directions issued by the TIO regarding the activities in question. There are no explicit offences or penalties mentioned in the amending instrument for non-compliance with the revised obligations. However, non-compliance could lead to potential civil consequences such as disputes with landowners, negative publicity, and reputational harm. Additionally, carriers may face enforcement actions or sanctions if their non-compliance is found to violate other related legislation or regulations. The specific consequences would depend on the nature and extent of the non-compliance, as well as the outcomes of any related investigations or legal proceedings.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.