EXPLANATORY STATEMENT
Issued by the Authority of the Minister for Communications
Telecommunications Act 1997
Telecommunications (Fibre-ready facilities – Exempt Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project) Instrument 2022
Legislative authority
This instrument is made under paragraphs 372K(1)(a), (c), (d), (e) and (f) of the Telecommunications Act 1997 (the Act).
Purpose
The purpose of the Telecommunications (Fibre-ready facilities - Exempt Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project) Instrument 2022 (the Instrument) is to exempt a specified real estate development project from the requirements to install fibre-ready facilities 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, because some projects may be located in areas where fixed-line networks are unlikely to be installed, Part 20A includes exemption mechanisms. Under section 372K of the Act, the Minister may exempt real estate development projects from the requirement to install fibre-ready facilities. Such exemptions are legislative instruments. Two such instruments provide class exemptions for certain types of real estate development projects, and the Minister also may exempt specific projects.
The Lockhart River Aboriginal Shire Council (the Council) is the developer of a 25-lot social housing subdivision at Lockhart River in Queensland, on the east coast of Cape York Peninsula, approximately 800 km north of Cairns. The subdivision is named in the Instrument as the Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Project (the Project).
The Council requested an exemption from Part 20A requirements from the Minister. The Project is located in NBN Co’s satellite footprint and NBN Co and Telstra have both advised they would not install fixed-line networks to the Project in the foreseeable future. Telstra advised that it would meet requests for voice services under the universal service obligation using wireless local loop services provided over its mobile network. NBN Co advised it would meet requests for broadband under the statutory infrastructure provider regime using its satellite network.
While acknowledging that the retrofitting of pit and pipe can be more costly than installing them during the construction phase, both NBN Co and Telstra have advised they will not be servicing the development with fixed line infrastructure for the foreseeable future. Moreover, savings now from not laying pit and pipe that may never be used can be directed to providing better housing. In addition, a decision on the exemption is required as the development needs to proceed. Having weighed up these factors, the Minister has decided to grant the exemption as requested.
Under subsection 372K(2), an exemption may be unconditional or subject to such conditions (if any) as are specified in the exemption. A condition has been included to require the Council, where there is no fixed-line infrastructure in respect of the Project, to give notice in writing to all residents, including prospective residents, about this, and advise that telecommunications services will be available over wireless or satellite platforms. This is to provide transparency to residents about their telecommunications services.
There was consultation during 2021-22 on possible changes to the class exemptions that have been made under section 372K of the Act, noting that the criteria currently contained in it may need to be adjusted for some situations, such as where small centres are served by fixed wireless or satellite and the provision of fixed lines is unlikely for the foreseeable future.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Consultation
The Department of Infrastructure, Transport, Regional Development and Communications consulted NBN Co, as the default statutory infrastructure provider, Telstra, as the primary universal service provider, Lockhart River Aboriginal Shire Council and its consultant engineering firm for the Project, Black and More, and the Australian Communications Consumer Action Network. No objections were raised to the exemption proceeding.
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 OBPR22-02103.
Details of the accompanying Instrument
Details of the accompanying Declaration are set out at 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 Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project) Instrument 2022
Part 1 – Preliminary
Section 1 – Name of Instrument
Section 1 provides that the name of the instrument is the Telecommunications (Fibre-Ready Facilities – Exempt Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project) Instrument 2022 (the Instrument).
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 – Authority
Section 3 provides that the Instrument is made under paragraphs 372K(1)(a), (c), (d), (e) and (f) of the Telecommunications Act 1997 (the Act).
Section 4 – Definitions
Section 4 provides definitions of key terms used in the Instrument. A note is included for the assistance of the reader to advise that some expressions used in the Instrument are defined in section 7 of the Act, including ‘building unit’ and ‘real estate development project’.
The term, ‘Act’ refers to the Telecommunications Act 1997.
The term, ‘Lockhart River Aboriginal Shire Council’ (the Council) means the local government entity, the Corporation of the Lockhart River Aboriginal Shire Council (ABN 55 631 460 952).
The term, ‘Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project’ (the Project) means the real estate development project owned by Lockhart River Aboriginal Shire Council located as described in column 1, and within the geographical coordinates set out in column 2, of Schedule 1 to the Instrument.
Section 5 – Exemption
Subsection 5(1) specifies the Project is exempt from the requirements in sections 372E, 372F, 372G, and 372H of the Act.
Sections 372E and 372F of the Act provide that a person must not install a fixed-line facility in the project area of a real estate development project unless the facility is a fibre-ready facility and any conditions specified in a legislative instrument are satisfied. Noting the exemption does not require fixed-line facilities to be installed and none are expected to be installed voluntarily in the foreseeable future, this supports the exemption in relation to sections 372G and 372H of the Act. Sections 372G and 372H apply civil penalties to the sale or lease of a building lot or building unit if a fibre-ready facility has not been installed in proximity to the building lot or building unit.
Subsection 5(2) specifies a condition of the exemption. In accordance with the condition, the Council must give notice in writing to all residents, including prospective residents, of a building unit situated on the land comprising the Project, that there is an absence of fixed-line telecommunications infrastructure in respect of the Project, and that telecommunications services will be delivered to the building units in the Project through wireless or satellite networks, as the case may be. This condition has been included to provide transparency for residents as to the telecommunications available to them. The condition applies if there is no fixed-line telecommunications infrastructure in respect of the Project. Should fixed-line infrastructure be installed at some time in the future, then the condition would no longer apply.
The Note to section 5 reminds the reader that subsection 372K(2) of the Act provides that an exemption may be unconditional or subject to such conditions (if any) as are specified in the exemption.
Schedule 1 – Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project
Schedule 1, item 1, identifies the specific location of the Project.
The Instrument exempts the 25-lot subdivision, located as described in column 1, and within the geographic coordinates specified in column 2 of Schedule 1. The Project is located in Lot 6 of WMT54 (6/WMT54) on Piiramo Street, Lockhart River, 4892, in the local government area of the Aboriginal Shire of Lockhart River, in the State of Queensland. The location of the Project in relation to the existing community of Lockhart River is shown in Map 1 below.
The geographic coordinates specify the location of the Project. A Note advises the reader that the coordinates have been calculated using the Geocentric Datum of Australia 1994 coordinate system. This system is commonly used in Australian legislation and regulation for specifying the geographic locations of areas of land within Australia.
Map 1. Location of the Project in relation to wider Lockhart River community
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 Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project) Instrument 2022
The Telecommunications (Fibre-Ready Facilities – Exempt Lockhart River Aboriginal Shire Council Piiramo Street Subdivision Real Estate Development Project) Instrument 2022 (the Instrument) exempts a project at Lockhart River, in the Cape York Peninsula in Queensland, from requirements under Part 20A of the Telecommunications Act 1997 to install fibre-ready facilities like pit and pipe in proximity to building lots or building units before they are sold or leased.
The project is in an area that currently does not receive fixed-line services from NBN Co Limited (NBN Co). NBN Co and Telstra have advised they will not deploy fixed-line infrastructure to the project, but will supply telecommunications services using their respective satellite and wireless platforms. Given this, if pit and pipe were to be installed, there is little likelihood of it being used in the foreseeable future. Furthermore, the funds needed to install the pit and pipe could instead be directed to building housing. This Instrument therefore provides an exemption from the requirements in Part 20A.
The Instrument places a condition on the developer of the project to provide, where applicable, written notice to residents (including prospective residents) that no fixed-line infrastructure is available and telecommunications services will be supplied through wireless or satellite platforms. This provides transparency for occupants.
No human rights issues were raised during consultation on the proposed Instrument. Residents of premises constructed as part of the project will still be able to access voice and broadband services, which are important for social, economic, political and cultural activity.
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.