Telecommunications (Fibre-ready facilities- Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016

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

Legislation au F2016L00780 In force Legislative Instrument

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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.

Overview

The Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016 was enacted to provide a legislative framework for exempting certain real estate development projects from the requirement to install fibre-ready pit and pipe under Part 20A of the Telecommunications Act 1997. The instrument was introduced to address a specific issue where the installation of such infrastructure was deemed unnecessary and economically unviable for two specified projects in Ganbenang, New South Wales, undertaken by Kiangatha Holdings Pty Limited. The enacting body was the Minister for Communications, who granted the exemptions based on the advice that direct-buried cabling and satellite broadband services would be more cost-effective solutions for the area's needs. The policy objective of the instrument was to reduce unnecessary development costs while ensuring that telecommunications services remain accessible to the residents of these developments.

Scope and Application

The Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016 applies to two specific real estate development projects undertaken by Kiangatha Holdings Pty Limited in Ganbenang, New South Wales, within the local government area of Lithgow. This legislation exempts these projects from the requirements to install fibre-ready pit and pipe under Part 20A of the Telecommunications Act 1997. The exemption was granted considering the high cost of installing pit and pipe infrastructure in these relatively isolated developments and the telecommunications solutions proposed by Telstra and NBN Co that do not necessitate such infrastructure. This exemption is limited to the two projects identified and does not extend to any future significant development of the land, which would need to be assessed on its own merits. The exemption applies across Australia and is subject to the terms and conditions set out in the Instrument. The exemptions do not engage any human rights issues and are compatible with the human rights recognised or declared in the international instruments under the Human Rights (Parliamentary Scrutiny) Act 2011.

Key Provisions

The Telecommunications (Fibre-ready facilities - Exempt Kiangatha Real Estate Development Projects) Instrument No.1 of 2016 (the Instrument) primarily operates by exempting two specified real estate development projects from the requirements to install fibre-ready pit and pipe under Part 20A of the Telecommunications Act 1997. This is achieved through Section 4 of the Instrument, which identifies the two exempt projects, and is further detailed in Schedule 1 (section 4). The exemption applies only to the existing two projects being undertaken by Kiangatha, as indicated by the development permit numbers in the Schedule. It does not cover any future significant development of the land concerned that would involve new real estate development projects, which would need to be considered separately for potential exemptions (section 4). Under this Instrument, Kiangatha Holdings Pty Limited is relieved from the obligation to install fibre-ready facilities like pit and pipe for its two real estate development projects located in Ganbenang, New South Wales. This obligation is replaced with a requirement for Telstra to provide voice services using direct-buried cabling and NBN Co to provide broadband services via fixed wireless or satellite, which do not necessitate pit and pipe infrastructure (section 4). The Instrument outlines that any further significant development of the land, such as increasing housing density, would not be captured by these exemptions and would be subject to the requirements of Part 20A, with any exemption requests needing to be considered on their merits (section 4). The Instrument imposes no specific obligations on Kiangatha beyond those outlined in the exemption itself. However, Kiangatha must ensure that any future development complies with the requirements of Part 20A unless another exemption is granted. The Instrument also does not introduce any new offences or penalties. Instead, it operates within the existing framework of the Telecommunications Act 1997, which means that any breaches of the Act not covered by the exemption would still attract the usual penalties as prescribed under the Act. These penalties can include fines and, in certain cases, imprisonment, depending on the nature and severity of the breach.

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Area of Law
Telecommunications Law
Instrument
Instrument
Concepts
Definitions & Interpretation
Exemptions & Exclusions
Regulatory Standards

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