Telecommunications (Exempt Activities) Regulations 1991 No. 356
EXPLANATORY STATEMENT
Statutory Rule 1991 No. 356
Telecommunications (Exempt Activities) Regulations
Issued by the Authority of the Minister for Transport and Communications
Section 406 of the Telecommunications Act 1991 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
Section 4 of the Acts Interpretation Act 1901 allows the making of regulations under an Act where an Act is expressed to confer power to make regulations and before that Act comes into operation. Section 116 of the Act has not been proclaimed but will commence on 1 January 1991.
Subsection 116(1) of the Act provides that regulations may provide that specified carriers may engage in specified exempt activities despite specified laws of a State or Territory.
The Telecommunications (Exempt Activities) Regulations (the Regulations) will enable carriers to engage in activities related to the development and maintenance of essential network infrastructure without being required to comply with certain State and Territory laws.
The Minister for Transport and Communications is to determine a National Code (the Code) under subsection 117(1) of the Act covering, inter alia, technical, design, safety, environmental or other standards with which carriers must comply in connection with specified exempt activities. An important feature of the Code is the Government's decision that, as a condition of the Code, the carriers will be required to advise and consult with relevant State, Territory and local authorities prior to undertaking any exempt activities.
Under subsection 118(2) of the Act, carriers are required, when carrying out an exempt activity, to comply with the Code where it provides for that exempt activity.
The Regulations provide the framework within which the Code will apply.
Regulation 1 provides for the citation of the Telecommunications (Exempt Activities) Regulations.
Regulation 2 provides that for the commencement of the Regulations on the day section 116 of the Act commences.
Regulation 3 provides that expressions in the Regulations have the meaning given in Regulation 3, unless the contrary intention appears.
Regulation 4 specifies those carriers to which regulation 5 shall apply. The carriers specified are those holding a general telecommunications licence or a public mobile licence issued under section 57 of the Telecommunications Act 1991. Accordingly, the Regulations apply to Telecom, OTC, AOTC and the second carrier, the latter two holding both general and public mobile licences. A third public mobile licence is planned to be issued at a later date.
Regulation 5 specifies those activities by carriers, relating to the construction, maintenance, repair, refurbishment, alteration or demolition, which shall be exempt from State and Territory laws. These exempt activities relate to the essential network infrastructure.
The regulation also lists specific types of apparatus, essentially the network hardware, that shall be exempt from State and Territory laws.
Regulation 6 specifies classes of State and Territory laws from which the specified carriers are to be exempt for the purposes of conduct of their exempt activities. This exemption from State and Territory laws is a considerable wind back of the blanket exemption that Telecom currently enjoys. The carriers are to be subject to State and Territory laws with regard to their other activities.
Regulation 7 provides an additional exemption to Telecom and OTC in relation to their exempt activities from the operation of State and Territory occupational health and safety laws.
The Regulations will commence on the day that section 116 of the Act commences.
Overview
The Telecommunications (Exempt Activities) Regulations 1991, enacted in 1991, were introduced to address the need for certain telecommunications carriers to engage in activities related to the development and maintenance of essential network infrastructure without being subjected to certain State and Territory laws. This was to streamline the process for carriers to perform their functions efficiently while still ensuring compliance with broader regulatory frameworks through a National Code. The regulations were issued by the Authority of the Minister for Transport and Communications, reflecting the policy objective of facilitating the telecommunications sector's operations under a harmonised regulatory approach that balances operational freedom with compliance to overarching safety and environmental standards. The Regulations were designed to provide a clear framework within which the National Code would apply, thereby allowing specified carriers to undertake exempt activities while maintaining consultation with relevant authorities.
Scope and Application
The Telecommunications (Exempt Activities) Regulations 1991 provide a framework for certain carriers to engage in specified activities related to the development and maintenance of essential network infrastructure without the necessity to comply with certain state and territory laws. These regulations apply to carriers holding a general telecommunications licence or a public mobile licence under the Telecommunications Act 1991, including entities such as Telecom, OTC, and AOTC. The exempt activities pertain to construction, maintenance, repair, refurbishment, alteration, or demolition of essential network infrastructure and specific types of network hardware. While these carriers are exempt from certain state and territory laws in relation to these specified activities, they remain subject to state and territory laws regarding their other activities. Additionally, Telecom and OTC receive an additional exemption from occupational health and safety laws concerning their exempt activities. The regulations provide a clear delineation of the scope and application of these exemptions, ensuring compliance with a National Code that encompasses technical, design, safety, environmental, and other standards, with a requirement for carriers to consult with relevant authorities prior to undertaking any exempt activities.
Key Provisions
The Telecommunications (Exempt Activities) Regulations 1991 (the Regulations) specify certain activities that are exempt from State and Territory laws for carriers holding a general telecommunications licence or a public mobile licence under the Telecommunications Act 1991 (the Act). Regulation 5 outlines the exempt activities, which include the construction, maintenance, repair, refurbishment, alteration, or demolition of essential network infrastructure, as well as the use of specific types of network hardware. This means that carriers such as Telecom, OTC, AOTC, and the second carrier (which holds both general and public mobile licences) can engage in these specified activities without needing to comply with certain State and Territory laws. However, it is important to note that these carriers will still need to adhere to State and Territory laws concerning their other activities.
Under Regulation 6, the specified carriers are exempt from a range of State and Territory laws, including those pertaining to land use, environmental protection, and building construction. This exemption is narrower than the blanket exemption that Telecom currently enjoys, as it is limited to the specified activities related to essential network infrastructure. Regulation 7 further provides an additional exemption for Telecom and OTC from State and Territory occupational health and safety laws in relation to their exempt activities.
The obligations imposed by the Regulations on the carriers include a requirement to comply with a National Code (the Code) that will be determined by the Minister for Transport and Communications. The Code will cover various standards, including technical, design, safety, and environmental standards, that the carriers must adhere to when conducting exempt activities. Under subsection 117(1) of the Act, the carriers are required to consult with relevant State, Territory, and local authorities before undertaking any exempt activities, as a condition of the Code. Additionally, carriers must ensure that their activities comply with the Code when carrying out exempt activities, as per subsection 118(2) of the Act.
Failure to comply with the Regulations or the Code may result in civil or criminal consequences. The Act does not specify the exact penalties for non-compliance, but it is likely that breaches of the Regulations or the Code could result in fines or other penalties under State and Territory laws, or even criminal charges in certain circumstances. The precise penalties would depend on the nature and severity of the breach, as well as the relevant laws of the State or Territory in which the breach occurred. It is therefore important for carriers to ensure that they are fully aware of their obligations under the Regulations and the Code, and to take all necessary steps to comply with those obligations.