EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Communications
Telecommunications Act 1997
Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016
Legislative authority
Paragraph 372K(1)(a) of the Telecommunications Act 1997 (the Act), together with paragraphs 372K(1)(c)-(f), allow the Minister to exempt, by legislative instrument, a specified real estate development project from the scope of sections 372E, 372F, 372G and 372H of the Act. Subsection 372K(4) of the Act provides that an exemption made under subsection 372K(3) may be unconditional, or subject to specified conditions.
Purpose
The purpose of the Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016 (the Instrument) is to exempt two specified real estate development projects from the requirements to install fibre-ready pit and pipe under Part 20A of the Act.
Background
Part 20A of the Act provides for the installation of fibre-ready facilities like pit and pipe in new developments. It applies across Australia. The provisions are intended to support the installation of optical fibre cabling where it is a cost-effective technological solution. Such pit and pipe can also be used for the installation of other fixed-line infrastructure, including copper cabling. In recognition that the pit and pipe requirements may not always be appropriate, Part 20A includes exemption mechanisms. The Minister may exempt developments from the requirement to install fibre-ready facilities like pit and pipe under section 372K of the Act.
Kiangatha Holdings Pty Limited (Kiangatha) has two development projects in Ganbenang, New South Wales, involving a seven lot rural subdivision. The developments are in the Lithgow Council’s local government area, but are situated over 50 kilometres south of Lithgow, and are relatively isolated.
Kiangatha is required to install fixed line telecommunications infrastructure as a condition of its development permits. Telstra has indicated that it will be most cost-effective to provide voice services to the developments using direct-buried cabling. As the developments fall outside NBN Co’s fixed line footprint, NBN Co will provide broadband services by fixed wireless or satellite. Given that direct-buried cable and wireless broadband do not need pit and pipe infrastructure, Kiangatha has requested the Minister grant exemptions from Part 20A, thereby reducing its development costs.
The Minister for Communications granted the exemptions because laying pit and pipe infrastructure in the Kiangatha developments would be very costly and it is unlikely to be required for the foreseeable future given the telecommunications solutions proposed and the location and nature of the developments.
Consultation
Comment on the draft exemption instrument was sought from NBN Co, Telstra, Kiangatha, the Australian Communications Consumer Action Network (ACCAN), the Communications Alliance and the Lithgow Council. Most stakeholders supported the exemptions.
Regulation Impact
The Office of Best Practice Regulation (OBPR) considers the Instrument is minor or machinery in nature and a Regulatory Impact Statement is not required. The OBPR reference number is 20703.
Details of the accompanying Instrument
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003. Details of the accompanying Declaration are set out in Attachment 1.
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 2.
ATTACHMENT 1
Details of the Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016
Part 1 – Preliminary
Section 1 – Name of Instrument
Section 1 provides that the title of the Instrument is the (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016.
Section 2 – Commencement
Section 2 provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Definitions
Section 3 provides definitions of key terms used in the Instrument.
The term, ‘Act’ refers to the Telecommunications Act 1997.
The term, ‘Kiangatha’ describes the developer, Kiangatha Holdings Pty Limited (ACN 136 533 741), a company incorporated in New South Wales.
The term, ‘Specified Kiangatha Project’ covers the two real estate development projects owned by Kiangatha as at 1 May 2016. They are listed in the table at Schedule 1 to this Instrument and obtain the benefit of the exemptions. The corresponding land area for the two developments is depicted in the maps at the annexures to Schedule 1.
To aid the reader, a note is inserted at the end of section 3 indicating that specified terms have the same meaning as in the Act. These terms include ‘project area’ and ‘real estate development project’. The term ‘project area’ is defined in section 7 of the Act as having the meaning given by section 372Q. This term means the area of land within a development project.
Section 4– Exempt real estate development projects
Section 4 specifies the two real estate development projects which are exempt from the requirements in subsections 372E, 372F, 372G and 372H.
Schedule 1 names the two exempt projects and notes the corresponding maps at Annexure A and B to Schedule 1.
The Instrument only exempts the existing two projects being undertaken by Kiangatha and which are identified by the development permit (DP) numbers in the table to Schedule 1. Further significant development of the land concerned, for example, to increase housing density, is not be captured by these exemptions. Such further development would involve new real estate development projects. Any such future projects would be subject to the requirements of Part 20A and any exemption requests for such projects would need to be considered on their merits. This ensures that the need for fibre-ready pit and pipe can be considered in relation to any further future development of the land concerned, including if it was to be used in future for higher density housing, a situation in which the installation of fibre-ready pit and pipe may be appropriate.
ATTACHMENT 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016
The Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016 (the Instrument) 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 declaration
The Instrument has been made by the Minister for Communications (the Minister) under paragraph 372K(1)(a), together with paragraphs 372K(1)(c)-(f), of the Telecommunications Act 1997 (the Act).
The Instrument exempts two specified real estate development projects from the requirements under Part 20A of the Act to install fibre-ready facilities like pit and pipe. The developments are located in Ganbenang in the local government area of Lithgow in New South Wales. The developer is Kiangatha Holdings Pty Limited (Kiangatha).
Pit and pipe facilities are not required for these projects because Telstra is prepared to service the developments using direct buried cable and NBN Co will provide broadband using satellite. This is unlikely to change in the foreseeable future given the two real estate development projects’ location, population density and general character. Requiring pit and pipe is not warranted in the circumstances. Not installing pit and pipe will reduce development costs. Occupants of the developments will have access to both voice and broadband services.
No human rights issues were raised during consultation on the proposed Instrument.
Human rights implications
This Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Instrument is compatible with human rights as it does not raise any human rights issues.