Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No.1 of 2018)

Administered by Department of Communications and the Arts

Legislation au F2018L00180 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Telecommunications Act 1997

Acts Interpretation Act 1901

Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No. 1 of 2018)

Issued by the Authority of the Minister for Communications

Authority

Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Act) provides authority for telecommunications carriers to inspect land, maintain facilities, connect subscribers to an existing network or install low-impact facilities or temporary defence facilities. 

Subclause 6(3) of Schedule 3 to the Act allows the Minister to determine that specified facilities are low-impact facilities for the purpose of clause 6 of Schedule 3 to the Act.  This specification power includes the power to determine particular classes of facilities to be low-impact facilities.  Subsection 33(3) of the Acts Interpretation Act 1901 allows the Minister to amend the Principal Determination.

On 20 February 2018 the Minister for Communications and the Arts made the Telecommunications (Low-impact Facilities) Determination 2018 (the Principal Determination), which remade the Telecommunications (Low-impact Facilities) Determination 1997 (1997 Determination).

The Telecommunications (Low-Impact Facilities) Determination 2018 (Amendment No. 1 of 2018) (the Amending Determination) amends the Schedule to the Principal Determination to correct two typographical errors. 

Purpose and operation

Schedule 3 to the Act provides telecommunications carriers with powers to enter land for inspection, and to install and maintain certain types of facilities.  It also provides certain immunities, including from a range of state and territory laws when carrying out those activities, such as those laws relating to land use, planning, design, construction, siting, tenancy, environmental assessments and protection.

The Principal Determination contains a list of low-impact telecommunications facilities that can be installed under carrier powers and immunities.  The low-impact list does not include free-standing towers.  The installation of these facilities is governed by State and Territory laws.

The Principal Determination has three Parts and one Schedule:

  • Part 1 is introductory, containing matters such as commencement, definitions and principal designated use (for the purposes of clarifying the zoning category).
  • Part 2 identifies the areas in which a facility may be installed, by reference to zoning arrangements under State and Territory planning laws.
  • Part 3 and the Schedule identify the circumstances under which named facilities are to be taken to be low-impact.

The Principal Determination has two typographical errors in Part 8 of the Schedule, which relate to co-location requirements.  In remaking the Principal Determination, some of the Part numbers in the Schedule were updated:

  • Part 4A (Above ground facilities (for fixed-line networks)) became Part 5;
  • Part 5 (Public payphones) became Part 6;
  • Part 6 (Emergency services) became Part 7; and
  • Part 7 (Co-located facilities) became Part 8.  

Items 1 and 2 in Part 8 of the Schedule to the Principal Determination erroneously refer to Parts 5 and 6 - those references should be to Parts 6 and 7, to reflect the numbering changes.  The Amending Determination corrects these references.

Consultation

No consultation has been undertaken on this Amending Determination as the two changes are minor and constitute technical corrections.

Regulatory Impact

The Office of Best Practice Regulation (OBPR) has advised that a Regulation Impact Statement is not required for the changes consulted on in 2017 as they will not have a more than minor regulatory impact (OBPR references 20695 and 23118).  The changes in the Amending Determination were intended to be reflected in the Principal Determination.  The changes ensure that the Principal Determination is consistent with the 1997 Determination in regards the co-location requirements, which was the Government’s intention when making the Principal Determination.

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 on the Telecommunications (Low-impact Facilities)                   Determination 2018 (Amendment No.1 of 2018)

Detailed notes on the Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No. 1 of 2018)

Section 1 Name of Determination

This section provides that the Amending Determination may be referred to as the Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No. 1 of 2018).

Section 2 Commencement

The Amending Determination commences on the day it is registered on the Federal Register of Legislation.

Section 3 Authority

This section provides that the Amending Determination is made under subclause 6(3) of Schedule 3 to the Act and subsection 33(3) of the Acts Interpretation Act 1901.

Section 4 Variation

This provides that the Telecommunications (Low-impact Facilities) Determination 2018 is amended as set out in the Amending Determination

SCHEDULE – Amendments

Items 1 and 2 – Items 1 and 2, Part 8 of the Schedule

Items 1 and 2 in the Amending Determination correct two typographical errors in the Schedule to the Principal Determination.  These items amend paragraph (a) in items 1 and 2 of Part 8 of the Schedule so that they correctly reference Part 6 (Public payphones) and Part 7 (Emergency facilities), in addition to Part 1 (Radio facilities).


Attachment B

 

Statement of Compatibility with Human Rights 

 

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

 

Telecommunications (Low-Impact Facilities) Determination 2018 (Amendment No. 1 of 2018)

 

The Telecommunications (Low-Impact Facilities) Determination 2018 (Amendment No. 1 of 2018) (the Amending Determination) 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 Determination

Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Act) provides authority for carriers to inspect land, maintain facilities, connect subscribers to an existing network or install any declared low-impact facilities or temporary defence facilities.  Subclause 6(3) of Schedule 3 to the Act allows the Minister to determine that specified facilities are low-impact facilities for the purpose of clause 6 of Schedule 3 to the Act.

Schedule 3 to the Act provides telecommunications carriers with powers to enter land for inspection, and to install and maintain certain types of facilities.  It also provides certain immunities, including from a range of state and territory laws when carrying out those activities, such as those laws relating to land use, planning, design, construction, siting, tenancy, environmental assessments and protection.  These powers and immunities are critical to the efficient construction and maintenance of telecommunications networks. 

Following public consultation on possible amendments to carrier powers and immunities in 2017, the Telecommunications (Low-Impact Facilities) Determination 2018 (the Principal Determination) remade the Telecommunications (Low-Impact Facilities) Determination 1997, including seven of the possible amendments.  No applicable human rights issues were raised during the public consultation.

The Principal Determination has two typographical errors in items 1 and 2 of Part 8 of the Schedule, which relate to co-location requirements.  In remaking the Principal Determination, some of the Part numbers in the Schedule were updated - Part 4A became Part 5, Part 5 became Part 6, etc.  Items 1 and 2 in Part 8 of the Principal Determination erroneously refer to Parts 5 and 6 - they should refer to Parts 6 and 7 to reflect the numbering changes.  The Amending Determination corrects the references.

The Principal Determination itself is technical and operational in nature and does not invoke any of the human rights or freedoms recognised or declared in the treaties listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 

Human rights implications

The Amending Determination does not engage any of the applicable rights or freedoms. 

Conclusion

The Amending Determination is compatible with human rights as it does not raise any applicable human rights issues.

Overview

The Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No. 1 of 2018) was issued by the Minister for Communications under the authority of the Telecommunications Act 1997 and the Acts Interpretation Act 1901. This amending determination rectifies two typographical errors in the Principal Determination of 2018, which remade the 1997 determination to streamline and update the telecommunications regulations. The errors pertained to incorrect references in co-location requirements, a technical oversight arising from the renumbering of certain parts within the schedule of the Principal Determination. The Amending Determination ensures the consistency and accuracy of the Principal Determination in line with its original intent. The Telecommunications Act 1997, along with its associated determinations, provides telecommunications carriers with specific powers and immunities necessary for the efficient deployment and maintenance of telecommunications infrastructure. These powers include the ability to inspect land, maintain facilities, and install low-impact facilities, thereby granting certain immunities from state and territory laws. The Principal Determination aimed to update the list of low-impact facilities while excluding free-standing towers, which are governed by state and territory laws. The Amending Determination addresses minor technical corrections, ensuring that the Principal Determination aligns with the original 1997 determination in terms of co-location requirements. The changes do not require consultation or a Regulation Impact Statement as they are deemed to have a minor regulatory impact.

Scope and Application

The Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No. 1 of 2018) amends the Telecommunications (Low-impact Facilities) Determination 2018, which specifies certain facilities that can be installed under carrier powers without requiring separate state or territory approval. The Amending Determination addresses two typographical errors in the Principal Determination, correcting references to parts of the Schedule that were incorrectly updated when the Principal Determination was remade. The Principal Determination itself provides telecommunications carriers with the authority to inspect land, maintain facilities, and install certain low-impact facilities, while offering immunities from various state and territory laws, such as those relating to land use, planning, and environmental assessments. This amendment ensures the Principal Determination is consistent with its intended purpose and the 1997 Determination in terms of co-location requirements. The Amending Determination applies to telecommunications carriers operating in Australia and is designed to correct technical errors without introducing any new regulatory impacts or human rights issues.

Key Provisions

The Telecommunications (Low-impact Facilities) Determination 2018 (Amendment No. 1 of 2018) amends the Principal Determination to correct two typographical errors. This amendment is crucial for ensuring the accuracy and consistency of the regulations concerning low-impact facilities. Specifically, under the Telecommunications Act 1997, Schedule 3 grants telecommunications carriers certain powers and immunities, allowing them to inspect land, maintain facilities, and connect subscribers to an existing network (Part 1). Section 6(3) of Schedule 3 enables the Minister to designate certain facilities as low-impact, thereby providing additional powers and immunities to carriers when installing these facilities. The Principal Determination outlines the types of low-impact facilities that can be installed under these powers and immunities. However, there were errors in the Principal Determination that needed correction. Items 1 and 2 in Part 8 of the Schedule erroneously referenced Parts 5 and 6 instead of Parts 6 and 7, which resulted from the renumbering of Parts in the Principal Determination. The Amending Determination rectifies these references to ensure the Principal Determination accurately reflects the updated part numbers. Telecommunications carriers, who are governed by the Act and the Principal Determination, must ensure their activities comply with the corrected references in the Schedule. This means that when installing low-impact facilities, carriers must adhere to the correct zoning and co-location requirements as outlined in the amended Schedule. Failure to comply with these corrected specifications may result in non-compliance with the Act and could potentially lead to legal consequences. Under the Act, there are potential civil and criminal consequences for non-compliance with the provisions of the Principal Determination and the Amending Determination. For instance, if a carrier fails to comply with the requirements concerning low-impact facilities, they could face legal actions under state and territory laws, which could include fines or other penalties. While the specific penalties are not detailed in the Amending Determination, the Act generally provides for enforcement mechanisms to ensure compliance, which may include fines, injunctions, or other remedies. It is important for carriers to remain vigilant and ensure their practices align with the corrected regulations to avoid any legal repercussions.

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