Telecommunications Code of Practice (Temporary Facilities) Amendment Determination 2020

EXPLANATORY STATEMENT

Telecommunications Act 1997

Issued by the Authority of the Minister for Communications, Cyber Safety and the Arts

Authority

Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Act) provides authority for carriers to inspect land, install low-impact facilities and maintain facilities.

Clause 15 of Schedule 3 to the Act provides that the Minister 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) of Schedule 3 of the Act. Subclause 15(2) of Schedule 3 of the Act requires that a carrier must comply with the Code of Practice.

Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make an instrument of a legislative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend, or vary any such instrument. The Telecommunications Code of Practice (Temporary Facilities) Amendment Determination 2020 (the Determination) amends the Telecommunications Code of Practice 2018 (the Code of Practice).

The Code of Practice is a legislative instrument for the purposes of the Legislation Act 2003.

Purpose and operation of the instrument

Schedule 2 of the Telecommunications Legislation Amendment Act 2019 (TLAA) amended Schedule 3 of the Act empowering the Minister to determine temporary towers as low-impact facilities in certain circumstances. The TLAA also enabled carriers to install temporary facilities without a tower in the same circumstances as temporary towers, using the existing maintenance powers provided in the Act.

Concurrent amendments are also being undertaken to the Telecommunications (Low-Impact Facilities) Determination 2018 (LIFD) to implement the changes provided for by the TLAA. The amendments are set out in the Telecommunications (Low-impact Facilities) (Temporary Facilities) Amendment Determination 2020.

The Code of Practice sets out conditions which carriers must comply with when using the powers and immunities provided under Schedule 3 of the Act to engage in activities relating to the inspection of land and the installation and maintenance of low-impact facilities. The conditions primarily relate to the requirements for carriers to notify affected landowners and occupiers of any intended activities, and give landowners and occupiers the opportunity to object to those activities on certain grounds.

These notification and objection arrangements provide mechanisms by which affected landowners can raise concerns with carriers about proposed installations and seek acceptable outcomes. However, it is reasonable to expect that carriers should engage with landowners or occupiers to confirm details of proposed deployments, such as the location of the temporary facility at the site or venue, as early as possible without relying on the landowner or occupier exercising their right to object.

The Code also sets out conditions that apply to how carriers undertake activities under Schedule 3 of the Act. Some of these conditions require carriers to take all reasonable steps to cause as little detriment, inconvenience or damage as practicable, to act in accordance with good engineering practice, to protect the safety of persons and property, to interfere as little as practicable with the operations of a public utility, public roads and paths, the movement of traffic and the use of the land, and to protect the environment.

Carriers are also expected to comply with industry standards that relate to the activity, have been recognised by ACMA for use in that industry and is likely to reduce a risk to the safety of the public if the standard is complied with. The Australian Radiation Protection Standard for Maximum Exposure Levels to Radiofrequency Fields – 3 kHz to 300 GHz (the Standard) is one of the standards that carriers are required to comply with, recognised by ACMA under Part 6 of the Act. Existing regulatory arrangements require facilities to comply with the exposure limits set out in the Standard and telecommunications devices and facilities are subject to testing and compliance checks to ensure they do not exceed the exposure limits.

The Determination includes new requirements and conditions in the Code of Practice such as:

Requiring additional information to be included in notifications to landowners and occupiers where one of the new classes of temporary facilities, including temporary towers, is intended to be used;
Expanding existing recordkeeping requirements for carriers to include, amongst other things, the purpose and operational details of temporary facilities that may be deployed;
Specifying timeframes for the removal of temporary facilities; and
Including a requirement to restore land after the removal of temporary facilities.

The Determination also adopts two recommendations made by Senate Scrutiny Committee on Regulations and Ordinances (SSCRO) made when the Code of Practice was remade in 2018. Additionally, the Determination corrects a minor drafting inaccuracy, removing an obsolete reference to ‘Nature Conservation Director’ and replaces it with the correct reference of ‘Director of National Parks’.

The Determination is a legislative instrument for the purposes of the Legislation Act 2003.

Temporary Towers and Temporary Facilities

Schedule 2 to the TLAA amended the Act to enable the Minister for Communications to prescribe temporary towers as low-impact facilities when used to:

provide additional capacity during one or more events (such as a cultural, festival or sporting event);
provide additional capacity during a high-demand holiday period;
minimise service disruption during the maintenance or replacement of an existing facility; or
provide services to an emergency services organisation so that it can deal with an emergency or natural disaster.

Concurrent amendments to the LIFD will allow temporary facilities to be installed for the same purposes as temporary towers. Temporary facilities must meet certain requirements under the LIFD, including being designed to be transportable while meeting certain dimensions for both length and height when fully deployed.

The Determination amends the Code of Practice by including additional conditions carriers must comply with when installing temporary towers and temporary facilities. The new conditions require carriers to:

remove temporary towers and temporary facilities within a set timeframe after the purpose for which they are deployed has expired;
restore the land on which a temporary tower or temporary facility is installed within a set timeframe;
retain specific records, including the purpose of the installation and the dimensions of the installation, such as the height of temporary tower, and the length and height of the temporary facility; and
provide additional information in notifications to landowners and occupiers.

In addition, an annual time limit condition is placed on temporary towers and temporary facilities being deployed for one or more events and for high-demand holiday periods at a particular place.

Maintenance under Division 3, Schedule 3 of the Act

Subclause 6(5)(b) of Schedule 3 to the Act allows the Minister to specify a temporary tower not higher than 30 metres as a low-impact facility that may be deployed to minimise disruption to a carriage service during maintenance or replacement of an original facility.

Subclause 7(3A) of Schedule 3 to the Act explicitly provides that temporary facilities without a tower can be deployed to minimise disruption to a carriage service during maintenance of an original facility.

Chapter 6 of the Code of Practice outlines the conditions that apply to maintenance activities undertaken by carriers. The Determination amends chapter 6 to provide that a temporary facility that does not include a tower can be installed by a carrier to minimise disruption to the supply of a carriage service during maintenance activities on an original facility.

Responding to the Senate Standing Committee on Regulations and Ordinances

In February 2018, the Australian Government made nine changes to the LIFD and Code of Practice. In its Delegated Legislation Monitor 4 of 2018, the Senate Standing Committee on Regulations and Ordinances (SSCRO) made two recommendations:

to provide for, on the face of the instrument, where the relevant standards a carrier must comply with can be accessed; and
to remove references to the repealed section 55 of Schedule 3 to the Act.

The former Minister for Communications and the Arts responded on 16 April 2018, indicating that these changes would be incorporated at the next opportunity.

The Determination amends the Code of Practice to implement the two recommendations made by the SSCRO. For example:

Sections 2.7, 3.7, 4.7, 5.7 and 6.7 of the Code of Practice are amended to provide information about where relevant standards a carrier must comply with can be accessed, and
Sections 2.14 and 6.14 of the Code of Practice have been removed as a result of the repeal of clause 55 of Schedule 3 to the Act.

The Determination also amends a minor drafting inaccuracy by removing an obsolete reference to ‘Nature Conservation Director’ with the correct reference of ‘Director of National Parks’.

An explanation of each provision is set out in the notes at Attachment A.

Consultation

Amendments to allow temporary towers and temporary facilities have been the subject of consultation since 2017. The initial proposal to allow for such facilities was made in the then Department of Communications and the Arts 2017 Consultation Paper titled ‘Possible amendments to telecommunications carrier powers and immunities’. A total of 81 submissions were received in response to the consultation paper.

To allow temporary towers to be deployed as a low-impact facility, an amendment to the Act was required. The amendment to the Act was implemented through the TLAA. The TLAA was subject to an inquiry by the Senate Environment and Communications Legislation Committee. During the inquiry process eight submissions were received.

In November 2019, an exposure draft of the amending instrument was released as part of a four week consultation process. Nine submissions were received in total. An exposure draft of the amending instrument was released for public consultation via the Department of Infrastructure, Transport, Regional Development and Communication’s (the Department) website. The Department also notified peak bodies representing carriers, utilities, local government and commercial building owners of the consultation process, as these bodies are most likely to deploy telecommunications infrastructure or have such infrastructure installed on their land.

Following consultation feedback from stakeholders, section headings of the Determination that related to temporary towers and temporary facilities were clarified.

A number of suggestions from stakeholders were addressed in the explanatory statement as these issues are already covered in the existing legislation or as part of the new conditions for temporary facilities and temporary towers in the Code. These include:

Specific notification and record keeping requirements for temporary facilities; and
Including conditions to restrict the relocation of temporary facilities in order to bypass annual time limits.

Regulatory impact assessment

The Office of Best Practice Regulation (OBPR) has been consulted in relation the amendments. OBPR have advised that a Regulatory Impact Statement is not required, as the reforms were originally considered when the TLAA was introduced to Parliament (OBPR ref: 20695).

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 to the Telecommunications Code of Practice (Temporary Facilities) Amendment Determination 2020

Section 1 Name

Section 1 provides for the instrument to be cited as the Telecommunications Code of Practice (Temporary Facilities) Amendment Determination 2020 (the Determination).

Section 2 Commencement

Section 2 provides that the instrument commences on the day after the instrument is registered on the Federal Register of Legislation.

The Federal Register of Legislation may be accessed at https://www.legislation.gov.au.

Section 3 Authority

Section 3 provides that the source of authority for making of the Determination is subclause 15(1) of Schedule 3 to the Telecommunications Act 1997 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901.

Section 4 Schedules

Schedule 1 to the Determination outlines the amendments that are to be made to the Telecommunications Code of Practice 2018 (the Code of Practice).

Schedule 1 – Amendments

Item 1 Subsection 2.7 (after Note 2)

This item inserts a third note to section 2.7 to indicate that copies of Australian Communications and Media Authority (ACMA) recognised standards may be accessed at https://www.acma.gov.au/register-telco-industry-codes-and-standards.

Under section 136, Part 6 of the Act, ACMA is required to maintain a register of industry codes and standards. Section 2.7 of the Code requires carriers to comply with industry standards or codes recognised by ACMA when utilising their inspection powers.

The addition of ‘Note 3’ provides that standards recognised by the ACMA are available on the ACMA’s website. Each of the standards or codes recognised by the ACMA are publicly accessible and are available at no cost via https://www.acma.gov.au/theACMA/register-of-codes.

This amendment implements a recommendation made by the Senate Scrutiny Committee on Regulations and Ordinances (SSCRO) in their Delegated Monitor 4 of 2018 to provide information about where the standard or code referenced can be accessed in the instrument.

Item 2 Subclause 2.10 (Note)

This item removes the previous note and inserts three new notes to section 2.10. The text from the original note is unchanged in new Note 1.

Note 1 provides that clause 41 of Schedule 1 of the Act defines the terms ‘designated overhead line’, ‘telecommunications transmission tower’ and ‘eligible underground facility’.

Note 2 provides that section 4.10 of the Code of Practice specifies record keeping requirements in relation to the installation of certain temporary facilities.

Note 3 provides that Section 6.10 of the Code of Practice specifies record keeping requirements in relation to maintenance activities which involve the installation of certain temporary facilities.

Item 3 Heading to Division 1, Part 4 of Chapter 2

Item 3 removes the heading as the section it outlines is repealed in item 4.

Item 4 Section 2.14

This item repeals section 2.14 of the Code of Practice.

This item implements a recommendation made by SSCRO in its ‘Delegated Monitor 4 of 2018’. SSCRO recommended removing this clause as it set requirements to comply with section 55 of Schedule 3 of the Act which was repealed in 2014 by the Omnibus Repeal Day (Autumn 2014) Act 2014.

Item 5 Section 3.7 (after Note 2)

This item inserts a third note to section 3.7 to indicate that copies of ACMA-recognised standards are available at https://www.acma.gov.au/register-telco-industry-codes-and-standards.

Under section 136, Part 6 of the Act, the ACMA is required to maintain a register of industry codes and standards. Section 3.7 of the Code requires carriers, when installing a subscriber connection, to comply with industry standards or codes recognised by the ACMA.

Item 6 At paragraph 3.32(8)(b)

This item removes reference to the defunct titles of ‘Nature Conservation Director or Heritage Chairperson’ and inserts a new reference of ‘Director of National Parks’, which is the current title.

Item 7 After Section 4.3

This item creates the condition that, when a carrier utilises their installation powers to deploy a temporary tower or temporary facility, they must remove the facility within 28 days of which its intended purpose being completed.

New subsection 4.3A(1) applies when a carrier installs a low-impact facility to minimise disruption to the supply of a carriage service that might result from the maintenance of another facility. Specifically, this subsection applies when carriers install a temporary tower described in either of items 1 or 2, Part 6A or a temporary facility described in item 8, Part 6A of the Schedule to the LIFD. An installation for this purpose must be removed within 28 days after the completion of the maintenance activity. Where the maintenance of the original facility has been completed and the temporary tower or temporary facility is awaiting removal, the temporary tower or facility must not be operational.

Subsection 4.3A(2) applies when a carrier installs a low-impact facility to minimise disruption to the supply of a carriage service that might result from the replacement of another facility. Specifically, this subsection applies when carriers install a temporary tower described in either of items 3 or 4, Part 6A or a temporary facility described in item 8, Part 6A of the Schedule to the LIFD. An installation for this purpose must be removed within 28 days after the completion of the replacement activity. Where the replacement of another facility has been completed and the temporary tower or temporary facility is awaiting removal, the temporary tower or temporary facility must not be operational.

Subsection 4.3A(3) applies when a carrier installs a low-impact facility to provide additional capacity to supply carriage services to persons who are attending an event at a venue. Specifically, this subsection applies when carriers install a temporary tower described in item 5, Part 6A or a temporary facility described in item 8, Part 6A of the Schedule to the LIFD. An installation for this purpose must be removed within 28 days after the event has concluded. Where the event has concluded and the temporary tower or temporary facility is awaiting removal, the temporary tower or temporary facility must not be operational.

Subsection 4.3A(4) applies when a carrier installs a low-impact facility and the installation is to provide additional capacity to supply carriage services to person who are attending any or all of two or more events at a venue. Specifically, this subsection applies when carriers install a temporary tower described in item 6, Part 6A or a temporary facility described in item 8, Part 6A of the Schedule to the LIFD. An installation for this purpose must be removed within 28 days after the event has concluded. Where the series of events has concluded and the temporary tower or temporary facility is awaiting removal, the temporary tower or temporary facility must not be operational.

Subsection 4.3A(5) applies when a carrier installs a low-impact facility and the installation is to provide additional capacity to supply carriage services to persons who are physically present in a particular area during a high-demand holiday period. Specifically, this subsection applies when carriers install a temporary tower under item 7, Part 6A or a temporary facility under item 8, Part 6A of the Schedule to the LIFD. An installation for this purpose must be removed within 28 days after the event has finished. Where the series of events has concluded and the temporary tower or temporary facility is awaiting removal, the temporary tower or temporary facility must not be operational.

Subsection 4.3A(6) applies when a carrier installs a low-impact facility and the installation is to wholly or partly to provide capacity to supply carriage services to one or more emergency services organisations so that that the organisations can deal with an emergency or natural disaster. Specifically, this subsection applies when carriers install temporary towers under item 2, Part 7 of the Schedule to the LIFD. An installation for this purpose must be removed within 28 days after the temporary tower is no longer required. Where the temporary tower is no longer required and is awaiting removal, the temporary tower must not be operational.

Item 8 Heading to section 4.4

This item helps distinguish differences between the existing requirement to restore land for low-impact facilities (section 4.4) with the new requirement inserted by item 9 to restore land after the installation of temporary towers or temporary facilities (section 4.4A).

Item 9 After Section 4.4

Item 9 inserts new section 4.4A, which provides that if a carrier installs a temporary tower or temporary facility, they must take all reasonable steps to ensure that:

the land is restored to a condition that is similar to its condition before the installation began; and
the restoration begins within 10 business days after the removal of the facility.

Subsection 4.4A(2) provides that where there is an agreement between the landowner and occupier with the carrier to commence land restoration activities at a time after the end of the period of 10 business days, the timeframe (within 10 business days) does not apply.

This clause applies to temporary towers and temporary facilities installed as low-impact facilities under items 1 - 8, Part 6A and item 2, Part 7 of the Schedule to the LIFD.

Section 4.4B – Temporary facility installed at or near a venue – annual limit

New section 4.4B provides an annual limit of 183 days for an installation of one or more low-impact facilities at a particular place to provide additional capacity to supply carriage services to people who are attending an event or events at a venue. This clause applies to temporary towers installed for events under items 6 - 8, Part 6A and to temporary facilities installed under item 8, Part 6A to the Schedule of the LIFD.

The annual limit condition is for a carrier at a particular location. For example, Carrier A installs three temporary facilities at the Melbourne Cricket Ground (MCG) for a series of events. Once the temporary facilities have been at the MCG for 183 days, Carrier A cannot install any further temporary towers or temporary facilities at the MCG for the remainder of the calendar year. The removal of a temporary tower or temporary facility from a venue does not restart the annual time limit.

There is no restriction on the number of carriers that may install temporary facilities at a location, however the annual limit applies to the presence of an individual carrier at the location rather than when a particular temporary tower or temporary facility is installed.

If a carrier installs a temporary tower or temporary facility for a series of events, the days between each event are counted towards the annual limit.

At the conclusion of an event or series of events, the carrier has 28 days to remove the temporary tower or temporary facility (in accordance with section 4.3A). These 28 days are not counted towards the annual limit, however, the temporary tower or temporary facility cannot be operational within the 28 day period.

There are safeguards to protect gaming of the annual time limit, such as:

the inclusion of specific notification requirements for carriers to list all of the events for which a temporary tower or temporary facility is intended to be deployed;
requiring carriers to keep specific records about the installation of temporary towers and facilities; and
the existing objection grounds available to landowners and occupiers about a carriers’ proposed installation activity.

Section 4.4C – Temporary facility installed to provide additional capacity during a high-demand holiday period – annual limit

New section 4.4C provides an annual limit of 90 days in a calendar year for an installation of one or more low-impact facilities at a particular place during a high-demand holiday period. The 90 calendar day limit provides an adequate amount of time for the required seasonal coverage while balancing the interests of local communities that may be impacted.

The removal of a temporary tower or temporary facility from a venue does not restart the 90 day annual time limit; the time limit applies to each particular place.

There is no restriction on the number of carriers that may install temporary facilities at a location during a high-demand holiday period, however the annual limit applies to the presence of an individual carrier at the location rather than when a particular temporary tower or temporary facility is installed.

If a carrier installs a facility for a high-demand holiday period, the carrier has 28 days to remove the facility (in accordance with section 4.3A). These 28 days are not counted towards the annual limit, however, the temporary tower or temporary facility cannot be operational within the 28 day period.

There are safeguards to protect gaming of the annual time limit, such as:

the inclusion of specific notification requirements for carriers to list all of the days for which a temporary tower or temporary facility is intended to be deployed for;
Requiring carriers to keep specific records about the installation of temporary towers and facilities; and
the existing objection grounds available to landowners and occupiers about a carriers’ proposed installation activity.

Item 10 Section 4.7 (at the end of Note 2)

This item inserts a third note to section 4.7 to indicate that copies of ACMA recognised standards are available at https://www.acma.gov.au/register-telco-industry-codes-and-standards.

Under section 136, Part 6 of the Act, the ACMA is required to maintain a register of industry codes and standards. Section 4.7 of the Code requires carriers to comply with industry standards or codes recognised by the ACMA when utilising their installation powers.

Item 11 Section 4.10 (2)

This item inserts “(other than facilities mentioned in subsection 4.10(4) or (5) below)”.

Item 12 At the end of section 4.10

This item removes the existing note and inserts new subsections 4.10(4) and (5) which set out specific record keeping requirements for temporary facilities, including temporary towers.

For subsection 4.10(4), carriers installing temporary towers or temporary facilities for purposes including maintenance or replacement of another facility, high-demand holiday periods and to assist emergency service organisations must keep and maintain records of:

each kind of temporary facility including the equipment items that together make up the temporary facility, such as items from the Schedule to the LIFD;
the purpose and circumstances for which the temporary tower or temporary facility was installed, such as whether the temporary facility is deployed to minimise disruption to a carriage service that might result from carrying out the replacement of an original facility as well as information about the facility being replaced;
the day on which the temporary tower or temporary facility is installed and removed;
if the facility includes a temporary tower, the height of the tower;
if the facility deployed is includes a temporary facility, the height and length of the facility.

These record keeping requirements apply to temporary towers installed under proposed items 1-4 of Part 6A and Item 2 of Part 7 of the Schedule to the LIFD and temporary facilities installed under item 8, Part 6A of the Schedule to the LIFD

In addition to the recordkeeping requirements listed above, subsection 4.10(5) requires carriers to keep and maintain the following records where a temporary tower or temporary facility is installed for one or more events:

the start time and date of the applicable event or events;
the end time and date of the particular event or events; and
the name and location of the particular venue where the event or events will be held.

These record keeping requirements apply to temporary towers or facilities installed under proposed items 6-8 of Part 6A of the Schedule to the LIFD.

Item 13 Heading to Section 4.16

This item removes a reference to the defunct title of ‘Nature Conservation Director’ and replaces it with a reference to the current title of ‘Director of National Parks’.

Item 14 Note after the heading to Division 2 to Part 5, Chapter 4

This item substitutes the note after the heading to Division 2 to Part 5, Chapter 4 to clarify that several sections in that Division are provided for information only.

Item 15 After subsection 4.23A(3)

This item inserts subsection 4.23A(3A) and sets out specific notification requirements that carriers must comply with when installing temporary towers and temporary facilities as low-impact facilities. The specific notification requirements include:

the purpose for which the temporary tower or temporary facility was installed.
if the facility includes temporary tower – the height of the tower;
the physical address at which the temporary tower or temporary facility will be installed; and
the day on which the temporary tower or temporary facility is planned to be installed and removed.

If a temporary tower or temporary facility is installed as a low-impact facility for one or more events, carriers must provide the following additional information in the notification:

the name of the each event and venue;
the physical address of each venue;
the days on which each event will take place, including the scheduled start and end time.

Where a temporary tower or temporary facility is installed as a low-impact facility for more than one event at a venue, the carrier may provide one notification to the landowner or occupier that includes all events at the venue for which the facility is being installed for, or more than one low-impact facility installed at the location for the same or different purpose, or both. An example could be where a carrier wishes to provide additional coverage service during a high-demand holiday period through a temporary tower and temporary facility. In such circumstances, the carrier would issue one notification to the landowner or occupier in respect of any of the following low-impact facilities:

a temporary facility – Item 8, Part 6A of the Schedule to the LIFD;
a temporary tower – Item 7, Part 6A of the Schedule to the LIFD;
if the facility included a satellite dish – Item 5 or 6, Part 1 of the Schedule to the LIFD; and
any ancillary equipment – Section 3.1(4) of the LIFD.

It is reasonable to expect that carriers should engage with landowners or occupiers to confirm the details of proposed deployments, such as the location of the temporary facility at the site or venue, as early as possible without relying on the landowner or occupier exercising their right to object to the proposed activity.

Item 16 Section 4.23(5)

This item amends the existing subclause numbering by replacing (7) with (8).

Item 17 Section 5.7 (after Note 2)

This item inserts a third note to section 5.7 to indicate that copies of ACMA recognised standards are available at https://www.acma.gov.au/register-telco-industry-codes-and-standards.

Under section 136, Part 6 of the Act, the ACMA is required to maintain a register of industry codes and standards. Section 5.7 of the Code requires carriers to comply with industry standards or codes recognised by the ACMA when deploying temporary defence facilities.

Item 18 At the end of Section 6.2

This item inserts two notes at the end of section 6.2.

Note 1 provides that the term ‘maintenance’ is defined in the Dictionary. The Dictionary is contained in the Code of Practice.

Note 2 acknowledges that carriers utilising their maintenance powers can deploy a temporary facility that does not incorporate a tower.

Item 19 After Section 6.3

This item includes new subsection 6.3A setting out a condition for carriers to remove temporary facilities within 28 days.

Under subclause 7(3A) of Schedule 3 to the Act, carriers can only deploy temporary facilities (excluding a temporary facility that includes a tower) when utilising their maintenance powers. Carriers can, however, utilise their installation powers to deploy temporary facilities that include a tower for maintenance and replacement of another facility.

Subsection 6.3A applies when a carrier engages in a maintenance activity and installs a temporary facility that does not include a tower to minimise disruption to the supply of a carriage service that might result from the maintenance or carrying out the replacement of another facility.

An installation for this purpose must be removed within 28 days after the completion of the maintenance activity. Where the maintenance or replacement of another facility has been completed and the temporary facility is awaiting removal, the temporary facility must not be operational.

Item 20 Section 6.4 (after ‘Carrier to restore land’, insert ‘-general’)

This item helps distinguish differences between the existing requirement to restore land after a carrier undertakes maintenance activities (clauses 6.4) with the new requirement inserted by item 21 to restore land after the deployment of temporary facilities while undertaking a maintenance activity (clause 6.4A).

Item 21 After section 6.4

This item inserts new section 6.4A, which provides that if a carrier utilises their maintenance powers to install a temporary facility, they must take all reasonable steps to ensure that:

the land is restored to a condition that is similar to its condition before the installation began; and
the restoration begins within 10 business days after the removal of the facility.

Subclause 6.4A(2) provides that where there is an agreement between the landowner and occupier with the carrier to commence land restoration activities at a time after the end of the period of 10 business days, the timeframe (within 10 business days) does not apply.

This clause applies to temporary facilities installed under item 8, Part 6A of the Schedule to the LIFD.

Item 22 Section 6.7 (after Note 2, insert Note 3)

This item inserts a third note to section 6.7 to indicate that copies of ACMA recognised standards are available at https://www.acma.gov.au/register-telco-industry-codes-and-standards.

Under section 136, Part 6 of the Act, the ACMA is required to maintain a register of industry codes and standards. Clause 6.7 of the Code requires carriers, when undertaking a maintenance activity, to comply with industry standards or codes recognised by the ACMA.

Item 23 Subsection 6.10(2)

This item inserts references to two new subsections outlined in item 24.

Item 24 At the end of section 6.10 (insert subsections 6(4) and (5))

This item inserts subsections 6.10(4) and (5), which set out specific record keeping requirements for temporary facilities installed under a carrier’s maintenance powers provided by clause 7(3A) of Schedule 3 to the Act.

It is useful to note that existing subclause 7(3A) of Schedule 3 to the Act allows carriers to install a temporary facility (other than a temporary tower), that is required to minimise the disruption to the supply of a carriage service that might result from the maintenance of the original facility without reference to the LIFD, however, the statutory requirements under the Act and all relevant provisions under the Code continue to apply.

The record rules in new subsection 6.10(4) and (5) are an example of the conditions that apply to temporary facilities installed either in reliance on the maintenance power in subclause 7(3A) of or under clause 6 of Schedule 3 to the Act (as a low-impact facility).

Carriers installing temporary facilities to undertake maintenance of another facility must retain the records outlined in subsections 6.10(4). Where a carrier installs a temporary facility to undertake replacement of another facility, the carrier must retain records outlined in 6.10(5).

Broadly, a carrier must retain the following records:

the kind of temporary facility and height;
the location where the temporary facility was installed;
the day on which each temporary facility was installed;
the purpose for which the temporary facility was installed; and
the day on which each temporary facility was removed.

Item 25 Heading to Division 1, Part 4 of Chapter 6

Item 25 removes the heading as the section it outlines is repealed in item 26.

Item 26 Section 6.14

This item repeals section 6.14 of the Code.

This amendment implements a recommendation made by SSCRO in its ‘Delegated Monitor 4 of 2018’. SSCRO recommended removing this clause within the Code, as it set requirements to comply with clause 55 of Schedule 3 to the Act. Clause 55 of Schedule 3 to the Act was repealed in 2014 by the Omnibus Repeal Day (Autumn 2014) Act 2014.

Item 27 Glossary

This item inserts definitions for the terms ‘high-demand holiday period’, ‘LIFD’, and ‘public land’.

Item 28 Definition of low-impact facility in the Glossary (Schedule)

This item removes the current note about the interpretation of specification by class and substitutes it with a new note referring to subsection 13(3) of the Legislation Act 2003.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications Code of Practice (Temporary Facilities) Amendment Determination 2020

The Telecommunications Code of Practice 2018 (the Code of Practice) 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 Code

The Code of Practice sets out conditions with which carriers must comply when using powers and immunities under Schedule 3 of the Telecommunications Act 1997 (the Act) to engage in certain activities. This primarily relates to the requirements for carriers to notify affected land owners and occupiers of their intended activities, and give them the opportunity to object.

Low-impact facilities are the most common type of facilities installed under Schedule 3 to the Act. Low-impact facilities are determined in the Telecommunications (Low-impact Facilities) Determination 2018 (LIFD). Installation of low-impact facilities is regulated under Chapter 4 of the Code of Practice.

The Telecommunications Code of Practice (Temporary Facilities) Amendment Determination 2020 (the Determination) amends the Code of Practice to reflect the concurrent changes made to the LIFD by the Telecommunications (Low-impact Facilities) (Temporary Facilities)Amendment Determination 2020.

The amendments under the instrument includes new requirements and conditions pertaining to the removal of temporary facilities, the restoration of land after the removal of temporary facilities, recordkeeping, and providing notice to affected land owners and occupiers.

The amendments proposed to the Code of Practice by the Determination are operational in nature and do not invoke any of the human rights or freedoms as set out in the seven core international human rights treaties to which Australia is a party.

Human rights implications

The Code of Practice does not engage any of the applicable rights or freedoms.

Conclusion

The Code of Practice is compatible with human rights as it does not raise any applicable human rights issues.

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

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