Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 2018
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
Senator the Honourable Mitch Fifield)
TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 2018
OUTLINE
Overview
The Telecommunications Legislation Amendment Bill 2018 (the Bill) comprises the following
measures:
a new tower and site access regime to allow eligible persons such as emergency
service organisations to gain access to towers and related sites owned or operated by
NBN corporations.
changes to the carrier powers and immunities regime to enable temporary
telecommunications towers to be specified as low-impact facilities in certain
circumstances, along with several minor technical changes to the regime. These
changes were outlined in a consultation paper titled, Possible amendments to
telecommunications carrier powers and immunities - Consultation Paper
(June 2017).
NBN tower access regime
Schedule 1 to the Bill would amend the National Broadband Network Companies Act 2011
(the NBN Act) to require NBN corporations, such as NBN Co Limited (NBN Co), to provide
emergency service organisations (referred to in the Bill as 'eligible persons') with access in
certain circumstances to towers and associated sites and facilities. Eligible persons are
defined to include police, fire, ambulance and state or territory emergency services. They
currently gain access to carriers' towers for the purposes of internal communications, which
improves their operational efficiency. In recent times, several police services have requested
access to towers owned or operated by NBN corporations, however NBN corporations have
been unable to provide this access because of line of business restrictions in the NBN Act.
Under the proposed tower access regime, NBN corporations would be required to give access
to the tower and related sites, and (if requested) to supply non-communications goods or
services that are incidental to the giving of site or tower access. The Bill amends the existing
line of business restrictions applying to NBN corporations so that such access can be supplied
to eligible persons without breaching those restrictions. Access in general would include
enabling a person to install, maintain, operate or remove equipment.
An NBN corporation would be required to publish standard offers on its website detailing the
terms and conditions of supply, including price. The requirements to publish standard offers
ensure that persons have transparency of the terms and conditions under which access may be
sought. NBN corporations would have to provide access on the terms and conditions set out
in published offers and would generally not be able to discriminate between eligible persons
in supplying access on the terms and conditions in the standard offers.
The non-discrimination and transparency principles reflected in the Bill are consistent with
existing obligations on NBN corporations under the Competition and Consumer Act 2010
(CCA) and the NBN Act.
If there is another tower in the vicinity of the tower owned or operated by the NBN
corporation, the NBN corporation would need to be reasonably satisfied that it would not be
reasonable for an eligible person to access that other tower before providing tower access. It
2
is anticipated that an eligible person would need to provide sufficient evidence to the NBN
corporation to enable it to be reasonably satisfied.
Temporary telecommunications facilities
The carrier powers and immunities regime under Schedule 3 to the Telecommunications Act
1997 (Tel Act) minimises the regulatory burden on carriers so that they can quickly and cost-
effectively meet the community's need for affordable, fast and reliable telecommunications
services. They provide certain immunities, including from a range of state and territory laws
when carrying out those activities, such as laws relating to land use, planning, design,
construction, siting, tenancy, environmental assessments and protection.
Schedule 3 to the Tel Act does not currently permit towers other than replacement towers of a
particular height to be installed using carriers and immunities. Temporary towers require
local government planning approval in many Australian jurisdictions. Carriers are often
required to obtain development approval from local governments to temporarily install these
facilities, which increases costs and timeframes for deployment, and affects the business case
for their use. The inability to provide temporary facilities can mean there is insufficient
capacity for customers to connect to mobile networks during emergencies, maintenance,
major events and peak holiday periods.
Several of the amendments proposed by Schedule 2 to the Bill would allow towers to be
installed temporarily under certain conditions, provided they are, at the relevant time of
installation, specified in a ministerial determination as a low-impact facility.
Specifically, Schedule 2 to the Bill would amend Schedule 3 to the Tel Act to allow the
Minister for Communications to specify that a temporary telecommunications tower is a low-
impact facility when used to:
maintain coverage during the maintenance of an existing facility or the construction or
installation of a replacement facility;
provide additional coverage during an event (such as a concert, festival or sporting
event) or peak holiday period; or
provide services to an emergency services organisation (ESO) so that the ESO can
deal with an emergency or natural disaster.
A temporary tower would be limited to no more than 30 metres in height (measured from the
ground to the top of the tower), except when it is being installed to:
minimise disruption to the supply of a carriage service that might result from the
maintenance or replacement of another facility in a rural area, in which case it could
be the higher of 30 metres or the height of the tower being maintained; or
provide services to an ESO so that the ESO can deal with an emergency or natural
disaster, in which case there is no height restriction.
The changes would allow carriers to more efficiently provide sufficient network capacity
during these times. The changes would include conditions to ensure that the facilities are
removed within a set timeframe and that carriers restore the land.
3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
TELECOMMUNICATIONS LEGISLATION AMENDMENT BILL 2018
The Bill 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 Bill
The Telecommunications Legislation Amendment Bill 2018 (the Bill) would amend the
National Broadband Network Companies Act 2011 (the NBN Act) to require NBN
corporations, such as NBN Co Limited, to provide access in certain circumstances to towers,
and associated sites and facilities, to eligible persons who are neither carriers nor service
providers, such as emergency service organisations.
Currently under the NBN Act, NBN corporations can supply eligible services (such as access
to towers) only to carriers and carriage service providers, consistent with their wholesale-only
mandate. NBN corporations are also subject to other line of business restrictions under the
NBN Act, including that NBN corporations cannot supply non-communications goods or
services. If NBN corporations were to provide access to towers to entities that are not carriers
or service providers, they would breach these obligations.
The Bill will establish a new access regime specific to telecommunications towers owned or
operated by an NBN corporation. The Bill would enable NBN corporations to give 'eligible
persons' access to such towers (and related sites) in certain circumstances. An NBN
corporation would have a duty to provide access to its towers to an eligible person where the
access is given to enable the installation, maintenance or removal of equipment on the tower
and other conditions are met.
Eligible persons will include police services, ambulance services, fire services and State and
Territory emergency services. Such entities have requested access to towers owned or
operated by NBN corporations, but NBN corporations have been unable to provide such
access because of the line of business restrictions on NBN corporations in the NBN Act. The
Minister would also have the power to specify, by legislative instrument, additional classes of
persons who would be able to access towers owned or operated by an NBN corporation. The
Minister would be able to declare limitations or restrictions on tower access for classes of
persons that are determined to be eligible.
An NBN corporation would be required to publish a standard offer on its website detailing
the terms and conditions of supply, including price for the tower and site access. The
requirements to publish standard offers ensure that eligible persons have transparency of the
terms and conditions under which access may be sought.
Temporary telecommunications facilities
Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Tel 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 Tel Act allows the Minister to determine that specified facilities are low-
impact facilities for the purpose of clause 6 of Schedule 3.
4
Carrier powers and immunities are critical to the efficient construction and maintenance of
telecommunications networks. They minimise the regulatory burden on carriers so that they
can quickly and cost-effectively meet the community's need for access to affordable, fast and
reliable telecommunications services. They provide 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.
Schedule 2 to the Bill would amend Schedule 3 to the Tel Act to allow the Minister to specify
temporary telecommunications towers to be low-impact facilities when used to:
maintain coverage during the maintenance of an existing facility or the construction or
installation of a replacement facility;
provide additional coverage during an event (such as a concert, festival or sporting
event) or peak holiday period; or
provide services to an emergency services organisation (ESO) so that the ESO can
deal with an emergency or natural disaster.
A temporary tower would be limited to no more than 30 metres in height (measured from the
ground to the top of the tower), except when it is being installed to:
minimise disruption to the supply of a carriage service that might result from the
maintenance or replacement of another facility in a rural area, in which case it could
be the higher of 30 metres or the height of the tower being maintained; or
provide services to an ESO so that the ESO can deal with an emergency or natural
disaster, in which case there is no height restriction.
The changes would allow carriers to more efficiently provide sufficient network capacity
during these times to ensure consumers are not affected by a disrupted service. The changes
would include conditions to ensure that the facilities are removed within a set timeframe and
that carriers restore the land. Schedule 2 to the Bill would also make several consequential
changes and a substantive amendment to clause 7 of Schedule 3 to make clear the ability for
carriers to temporarily install facilities such as mobile exchanges on wheels as part of
Schedule 3 facility maintenance activities.
The proposed changes were outlined in a consultation paper titled, Possible amendments to
telecommunications carrier powers and immunities - Consultation Paper (June 2017) relating
to possible amendments to carrier powers and immunities. The paper invited submission from
the public, and no applicable human rights issues were raised during the public consultation.
Human rights implications
The Bill does not engage any of the applicable rights or freedoms.
Conclusion
The Bill 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.
5
FINANCIAL IMPACT STATEMENT
None of the measures in the Bill will have any financial impact on the Australian
Government Budget.
6
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACCC: Australian Competition and Consumer Commission
ACMA: Australian Communications and Media Authority
Bill: Telecommunications Legislation Amendment
Bill 2018
CCA: Competition and Consumer Act 2010
ESO Emergency Service Organisations
Minister: Minister for Communications
NBN: National Broadband Network
NBN Co: NBN Co Limited
NBN Act: National Broadband Network Companies Act 2011
Tel Act: Telecommunications Act 1997
7
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Telecommunications
Legislation Amendment Act 2018.
Clause 2 - Commencement
Clause 2 provides for the commencement of provisions in the Bill.
Item 1 of the table at subclause 2(1) provides that the whole of the Bill would commence on
the day after the Act receives the Royal Assent.
Subclause 2(2) provides that any information in column 3 of the table in Subclause 2(1) is not
a part of the Bill and that information may be inserted in this column, or may be edited, in
any published version of the Bill, when enacted.
Clause 3 - Schedules
Subclause 3(1) provides that legislation that is specified in a Schedule to the Bill is amended
or repealed as set out in the applicable items in that Schedule, and any other item in a
Schedule has effect according to its terms. There are two Schedules to this Bill.
8
Schedule 1-- Access to a telecommunications transmission tower
owned or operated by an NBN corporation etc.
The amendments set out in Schedule 1 to the Bill would require NBN corporations, including
NBN Co, to provide access to NBN telecommunications transmission towers and other
related facilities, and the sites on which those towers or facilities are located to eligible
persons who are neither carriers nor service providers.
National Broadband Network Companies Act 2011
Item 1 - Section 5
Item 1 of Schedule 1 to the Bill would insert a new term into section 5 of the NBN Act. The
new term, 'telecommunications transmission tower' would have the same meaning as in Part
5 of Schedule 1 to the Tel Act. Under that Part, telecommunications transmission tower
means any of the following things used to supply a carriage service by means of
radiocommunications:
a tower; or
a pole; or
a mast; or
a similar structure.
Item 2 - After Subdivision B of Division 2 of Part 2
Item 2 of Schedule 1 would insert a new subdivision into Division 2 of Part 2 of the NBN Act
constituting the new tower and site access regime. This new subdivision comprises ten new
provisions.
Proposed section 19A - Access to a telecommunications transmission tower
Proposed subsection 19A(1) would set out the primary access obligation in respect of
telecommunications transmission towers owned or operated by NBN corporations.
If an NBN corporation is requested, by an 'eligible person' (which would be defined in
proposed new section 19H), to provide access to a telecommunications transmission tower
owned or operated by the NBN corporation, then the NBN corporation must provide access
to the tower to that person subject to certain conditions being met.
All of the following conditions must be met in order to enliven the new access obligation:
the access must be for the sole purpose of enabling the eligible person to install
particular equipment on the first tower or to maintain, operate or remove particular
equipment installed by the eligible person on the first tower (paragraph (1)(a)); and
in a case where the access is for equipment installation:
o the NBN corporation must be satisfied that the installation of the equipment is
technically feasible (paragraph (1)(b)); and
o if there is another telecommunications transmission tower in the vicinity of the
NBN tower which is not owned or controlled by the NBN corporation, the
NBN corporation must be reasonably satisfied that it would not be reasonable
for the eligible person to install the equipment on the other tower (paragraph
(1)(c)).
9
Specific criteria are proposed for determining what is 'technically feasible' at proposed
subsection 19A(7).
The requirement for an NBN corporation to be reasonably satisfied that it would not be
reasonable for an eligible person to access another tower in the vicinity of the NBN
corporation's tower addresses potential competitive neutrality concerns. Other carriers, and
independent tower providers, also provide emergency service organisations with access to
towers and NBN corporations would be competing with them. In effect, paragraph 19A(1)(c)
establishes a requirement that eligible persons must approach those providers first and only
seek access from an NBN corporation where access to the other provider's tower would be
unreasonable or not feasible.
In reaching a decision on whether or not an NBN corporation is reasonably satisfied that the
eligible person seeking access to the NBN transmission tower does, or does not have, a
reasonable option to install equipment on another tower, an NBN corporation should make an
assessment based on the evidence provided to it, and this is intended to be based on
information reasonably available to the NBN corporation at the time of the considering the
request. The assessment process should not be burdensome or time-consuming for NBN
corporations or the eligible person. It is not intended that commercially sensitive information
provided to eligible persons must be provided to NBN corporations in order for NBN
corporations to reach a decision regarding reasonableness for these purposes.
The types of documentary or other form of evidence that NBN corporations could reasonably
rely upon to assess whether it is reasonable for the eligible person to install the equipment on
the other tower may include:
a statement from the eligible person that pricing at the alternative tower sites is not
reasonable or that the payment would be in excess of the NBN corporation's standard
offer;
a statement from the eligible person that there is insufficient space at alternative tower
sites, or that the space is not available at an appropriate height;
a statement that the eligible person would need to pay to extend or support the tower
in order to install equipment, and that this payment would be in excess of the NBN
corporation's standard offer;
any existing knowledge the NBN corporation possesses of alternative tower sites in
the vicinity of its towers.
The first note accompanying proposed subsection 19A(1) refers the reader to the definition of
'eligible person' in new section 19H.
The second note accompanying proposed subsection 19A(1) refers the reader to the definition
of 'equipment' in new section 19G, where a broad definition is proposed to encompass the
different types of equipment that persons may wish to install on NBN corporations' towers.
The third note accompanying proposed subsection 19A(1) refers the reader to new section
19C, which provides that the Minister may make a determination to clarify that certain types
of conditions may or may not be reasonable for the purposes of paragraph 19A(1)(c).
Under the NBN Act, an NBN corporation can only supply 'eligible services' to a carrier or a
service provider (section 9). Eligible services are defined in section 152AL of the CCA and
are either listed carriage services (within the meaning of the Tel Act) or services that
facilitate the supply of a listed carriage service. They therefore cover a broad range of
communications services, including wholesale carriage services and providing access to
network elements or facilities.
10
NBN corporations are subject to further line of business restrictions set out in Part 2 of
Division 2 of the NBN Act. These are intended to ensure that NBN corporations remain
limited to, and focused on, the wholesale provision of carriage services.
Under section 18 of the NBN Act, an NBN corporation must not supply a 'non-
communications service' to another person.
A 'non-communications service' is defined in section 5 of the NBN Act as a service that does
not include five classes of services; two of those being an 'eligible service' and a service that
is ancillary or incidental to the supply by an NBN corporation of an eligible service.
Under section 19 of the NBN Act, an NBN corporation cannot supply a good unless the
goods are for use in connection with the supply, or prospective supply, of an eligible service
by the NBN corporation.
Under the existing arrangements outlined above, if an NBN corporation were to provide
access to its towers and sites, and supply ancillary goods or services, to persons that are
neither carriers nor service providers, it would breach these obligations. For example, if it
proposed to supply tower access to such a person, generally speaking, it would be supplying
an eligible service to a person who is neither a carrier nor a service provider.
In some circumstances, the supply of tower access by an NBN corporation would not
necessarily be an eligible service. When a carrier supplies tower access to another carrier or
service provider this would usually be a service that facilitates the supply of a carriage
service, and therefore an 'eligible service' as defined in the CCA. If an NBN corporation
supplies tower access to an emergency service organisation such as a police service, for
example, that police service would not be supplying a carriage service and so the tower
access service would not be an 'eligible' service because no carriage service is being
facilitated.
In this circumstance, however, the NBN corporation would still be precluded from supplying
tower access to an emergency service organisation because doing so would potentially breach
of the proscription in section 18 of the NBN Act on supplying non-communications services.
Similarly, if NBN Co were to supply a good to an emergency service organisation it could
potentially breach section 19 of the NBN Act. An example would be the supply of a good
such as electricity, which may be required to allow equipment installed on a tower to operate.
When an NBN corporation supplies tower access to a carrier it may also supply electricity,
and in this case the supply is in connection with the supply of an eligible service and does not
breach the ban on supplying non-communications goods. However, if an NBN corporation
were to supply electricity to an emergency service organisation, it could breach section 19.
As outlined above, the NBN corporation would not, under the NBN Act, be supplying an
eligible service and therefore the supply of electricity would not be in connection with the
supply of an eligible service.
Proposed subsection 19A(2) is therefore an integral provision to the reform measure because
it operates to ensure that the prohibitions in sections 9, 18 and 19 of the NBN Act do not
apply to NBN corporation giving access to a tower in compliance with proposed
subsection 19A(1), or the supply to the eligible person of non-communications goods or
services that are part of the giving of that tower access.
Proposed subsection 19A(3) sets out reasonable limitations on the access obligations under
proposed subsection 19A(1). Specifically, an NBN corporation would not need to provide
access if giving such access would:
11
prevent an NBN corporation from reserving sufficient space on a tower for its
reasonably anticipated requirements (paragraph 19A(3)(a)); or
prevent another person who has already installed equipment on the NBN tower from
obtaining access to sufficient space on that tower to be able to meet the other person's
reasonably anticipated requirements in relation to the installation of equipment,
measured at the time when the request was made (paragraph 19A(3)(b)); or
deprive any person of a 'protected contractual right', defined under paragraph 19A(4))
to mean a right under a contract that was in force at the commencement of section
19A.
These limitations are consistent with those that apply to the Category B standard access
obligations under subsection 152AXB(3) of the CCA. The limitations in proposed subsection
19A(3) are intended to ensure that the duty to provide access is suitably limited and recognise
the commercial and physical constraints that may exist (or apply) in respect of a particular
tower. Where a tower is not yet full, but the available space will be required by the NBN
corporation to fulfil existing contractual obligations or reasonably anticipated requirements,
then the NBN corporation should not be required to grant subsequent access requests if this
would derogate from the existing requirements.
In addition to proposed subsection 19HA(3), proposed subsection 19A(5) in operation with
proposed subsection 19H(2), specifies a further limitation on the access right set out in
proposed subsection 19A(1). Proposed subsection 19A(2) provides that the Minister may, by
legislative instrument, specify one or more classes of persons to whom NBN corporations
must give tower access under subsection 19A(1). Proposed paragraph 19H(2)(b) provides that
the Minister may declare that one or more specified limitations or restrictions are applicable
to the class. For example, following consultation with the Minister for Home Affairs, the
Minister for Communications may specify that access for a particular class of persons must
only be for a specified purpose, or to install specified equipment.
Proposed subsection 19A(5) then clarifies that, if the Minister has specified a class of persons
and any applicable limitations or restrictions, the duty to provide tower access under 19A(1)
does not apply if giving that access would be inconsistent with a limitation or restriction that,
under paragraph 19H(2)(b), is applicable to the class.
As a future safeguard to deal with unforeseen circumstances, proposed subsection 19A(6)
would provide a mechanism for the Minister to determine, by legislative instrument, that the
access obligation in proposed subsection 19A(1) does not apply if certain conditions are met.
The power is not limited. Examples of the sort of condition that could be determined by the
Minister could be restrictions on the use of certain equipment, or requirements on eligible
persons to obtain specified approvals before installing equipment.
Proposed subsection 19A(7) establishes criteria that an NBN corporation must have regard to
in order to determine whether an installation is regarded as technically feasible for the
purposes of proposed paragraph 19A(1)(b). The criteria are based on, and are largely the
same as, those set out in the current criteria for determining what is 'technically feasible' in
subclause 33(4) of Schedule 1 of the Tel Act. They include considering whether the
installation of equipment is likely to result in significant difficulties of a technical or
engineering nature, and whether the installation is likely to result in a significant threat to the
health or safety of persons who operate, or work on, the tower. They also include potential
risk mitigation strategies such as changing the configuration or operating parameters of a
facility situated on the tower, or making alterations to the tower.
12
For the purposes of subsection 19A(7), the term 'facility' would have the same meaning as in
section 7 of the Tel Act (proposed subsection 19A(8)). This is a broad definition and covers
any part of the infrastructure of a telecommunications network; or any line, equipment,
apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used,
or for use, in or in connection with a telecommunications network.
Proposed section 19B - Access to the site of a telecommunications transmission tower
Proposed subsection 19B(1) would set out the primary access obligation in respect of access
to sites upon which an NBN telecommunications transmission towers are situated. The term,
'site' would be broadly defined in proposed section 19J as land; a building on land; or a
structure on land.
An NBN corporation would be required to give an eligible person access to the particular site
subject to certain preconditions being met.
Firstly, access to the related site must be given if access has been given to the tower (under
proposed subsection 19A(1)) for the purpose of enabling the eligible person to either install
particular equipment on the tower; or maintain, operate or remove particular equipment
installed by the eligible person on the tower. In this sense, the site access obligations flow
from the tower access obligation; when an NBN corporation gives tower access, it must also
give related access to the site for the same purpose.
Secondly, the site must be either owned, occupied or controlled by the NBN corporation, or
the NBN corporation must have a right (whether conditional or unconditional) to use the site.
'Controlled' is not defined in the Bill, but it is intended that the same broad meaning as given
in section 577N of the Tel Act would apply.
Thirdly, the access to the site must be for the sole purpose of enabling the eligible person to
install particular equipment on the first tower or maintain, operate or remove particular
equipment installed by the eligible person on the first tower.
Fourthly, in the case where the access is for equipment installation: the NBN corporation
must be reasonably satisfied that the installation of the equipment is technically feasible and
it would not be reasonable for the eligible person to install the equipment on another person's
tower that is in vicinity to the NBN tower.
The first note accompanying proposed subsection 19B(1) refers the reader to the definition of
'eligible person' in new section 19H.
The second note accompanying proposed subsection 19B(1) refers the reader to the definition
of 'site' in new section 19J.
The third note accompanying subsection 19B(1) refers the reader to new section 19G for the
meaning of 'equipment'.
Proposed subsection 19B(2) largely mirrors subsection 19A(2), however the line of business
restrictions under sections 9, 18 and 19 of the NBN Act apply in respect of the giving of site
access; or the supply to the eligible person of goods that are incidental to the giving of site
access. As with subsection 19A(2), subsection 19B(2) is critical as it establishes that the line
of business restrictions under the NBN Act do not apply where an eligible person requests
access and the giving of access meets the requirements set out in the proposed new
Subdivision.
Proposed subsection 19B(3) would provide a mechanism for the Minister to determine that
the access in subsection 19B(1) does not apply if certain conditions are met. As with
subsection 19A(5), this subsection allows the Minister to deal flexibly with unforeseen
13
circumstances by determining conditions on access to NBN tower sites. For instance, the
Minister could determine circumstances in which NBN corporations do not have a duty to
provide access to tower sites, such as if there are environmental or safety concerns. The
determination would be in writing and a legislative instrument for the purposes of the
Legislation Act 2003.
Proposed section 19C - Reasonableness--Ministerial determinations
Proposed subsection 19C(1) is intended to allow the Minister to determine, if necessary, the
conditions on which it is reasonable or not reasonable for an eligible person to access an
alternative tower site. It enables the Minister to determine specified conditions by legislative
instrument, and if those conditions are specified then:
for the purposes of paragraph 19A(1)(c), it is taken to be reasonable for an eligible
person to install equipment on a telecommunications transmission tower; or
for the purposes of paragraph 19A(1)(c), it is taken not to be reasonable for an eligible
person to install equipment on a telecommunications transmission tower.
This power provides flexibility to deal with possible unforeseen circumstances. As any
determination would be a legislative instrument, it would be subject to the consultation,
disallowance and registration requirements under the Legislation Act 2003.
The first note accompanying proposed subsection 19C(1) refers the reader to the definition of
'eligible person' in new section 19H.
Proposed subsection 19C(2) specifies that a determination under subsection 19C(1) must be
an instrument of a legislative character. This is included for the avoidance of doubt and
ensures that the determination deals with identified circumstances or classes of persons rather
than with specific persons. Proposed subsection 19C(2) is included for the avoidance of
doubt.
Proposed section 19D - Publication of access terms and conditions--towers
Proposed section 19D would impose an obligation upon NBN corporations to publish a
standard offer on their websites detailing the terms and conditions on which they will supply
tower access to eligible persons. Those supply terms and conditions must cover price and
non-price terms. The requirement to publish standard offers is intended to provide
transparency of the terms and conditions under which access may be sought. Such
transparency is essential for the proper operation of the non-discrimination obligations set out
in proposed section 19F.
Proposed section 19D also sets out that, if an NBN corporation has published standard offers
for the supply of tower access and incidental goods, the terms and conditions on which access
is given, or the goods are supplied, must be the same as the published terms. This ensures that
an eligible person requesting access can be guaranteed supply on the basis of the standard
terms.
Under proposed subsection 19D(1) an NBN corporation must publish on its website the price
and non-price terms and conditions on which it NBN corporation offers to give access to its
tower and the supply of incidental goods, in compliance with proposed subsection 19A(1),
for the purpose of enabling the eligible person to:
install equipment; or maintain, operate or remove equipment; and
supply to a person goods that are incidental to the giving of that access.
14
The note accompanying proposed subsection 19D(1) reminds readers that the term 'eligible
person' is defined in proposed section 19H.
Under proposed subsection 19D(2), if an NBN corporation is obliged to give access to a
tower (or to supply goods incidental to the supply of goods) in accordance with subsection
19A(1) and an eligible person requests an NBN corporation to enter into an agreement on the
same terms and conditions published as mentioned in paragraph 19D(1)(f) for:
access to telecommunications transmission tower either owned or operated by the
NBN corporation; and
the supply of the goods incidental to the tower access;
then the NBN corporation must comply with the request.
Under proposed subsection 19D(3), if an NBN corporation is obliged to give access to a
tower (or to supply incidental goods) in accordance with proposed subsection 19A(1) and the
access to the tower, or the supply of the goods, is not covered by an agreement between the
NBN corporation and the eligible person, the NBN corporation must supply the access and
goods on the terms and conditions that were published on the NBN corporation's website, in
accordance with proposed subsection 19D(1), at the time when the request was made.
Proposed section 19E - Publication of access terms and conditions--sites
Under proposed subsection 19E(1) an NBN corporation must publish on its website the price
and non-price terms and conditions on which the NBN corporation offers to give access to a
tower site, in compliance with proposed subsection 19A(1), for the purpose of enabling the
eligible person who is neither a carrier nor a service provider to:
install equipment; or
maintain, operate or remove equipment; and
supply to a person goods that are incidental to the giving of that access.
To enliven the publication obligations under proposed subsection 19E(1), the site must be
owned, occupied or controlled by the NBN corporation or the NBN corporation must have a
conditional or unconditional right to use the site.
Two notes accompany proposed subsection 19E(1) to remind readers that the term 'site' is
defined in proposed section 19J and that proposed section 19H defines 'eligible person'.
When an NBN corporation is obliged to give an eligible person access to a site (or to supply
incidental goods) in accordance with proposed subsection 19A(1), and the eligible person
requests an NBN corporation to enter into an agreement on the same terms and conditions
published as mentioned in proposed paragraph 19E(1)(f) the NBN corporation must comply
with the request (refer proposed subsection 19E(2).
Under proposed subsection 19E(3), if an NBN corporation is obliged to give access to a site
(or to supply incidental goods) in accordance with proposed subsection 19A(1), and the
purpose of the access is to install equipment on the tower, and the access to the site, or the
supply of the related site access goods, is not covered by an agreement between the NBN
corporation and the eligible person, the NBN corporation must supply access to the relevant
site (and any incidental goods to the supply of access access) on the terms and conditions that
were published on the NBN corporation's website, in accordance with proposed subsection
19E(2), at the time when the request was made.
15
Proposed section 19F - Terms and conditions of access to be on a non-discriminatory
basis
Proposed section 19F sets out non-discrimination obligations applying to the giving of access
under proposed sections 19A and 19B. Proposed subsection 19F(1) relates to the terms and
conditions of access to towers, and proposed subsection 19F(2) relates to the terms and
conditions of access to sites.
Proposed subsection 19F(1)provides that, in determining non-price and price or price-related
terms and conditions on which an NBN corporation:
gives an eligible person access to a tower in compliance with subsection 19A(1), to
install particular equipment or maintain, operate or remove particular equipment; and
supplies goods to an eligible person that are incidental to the giving of that access
the NBN corporation must not discriminate between eligible persons who seek or obtain
access in such circumstances.
As an aid to readers, a note accompanies proposed subsection 19F(2) to advise that 'eligible
person' is defined in section 19H.
Proposed subsection 19F(2) provides that, in determining non-price and price or price-related
terms and conditions on which an NBN corporation:
gives an eligible person access to a site in compliance with subsection 19B(1), to
install particular equipment or maintain, operate or remove particular equipment; and
supplies goods to an eligible person that are incidental to the giving of that access
the NBN corporation must not discriminate between eligible persons who seek or obtain
access in such circumstances.
The non-discrimination obligations ensure that all eligible persons will receive the same
terms and conditions of access when seeking access to a tower and the site on which that
tower is situated. They work with the requirement on NBN corporations to publish standard
offers to ensure that there is clear transparency of terms and conditions of access and a level
playing field for all eligible persons. The obligations are consistent with those applying
generally to NBN corporations when they supply eligible services to carriers or service
providers (see section 152AXC of the CCA).
Proposed 19G - Equipment
The concept of 'equipment' is central to the access provisions in new Subdivision 2B.
Proposed subsection 19G(1) would define 'equipment' to mean five types of things:
a facility (within the meaning of the Tel Act); or
an antenna; or
a measuring device; or
an apparatus; or
a thing that belongs to a class of things specified in a ministerial determination under
subsection 19G(2).
As noted above, 'facility' is defined broadly in the Tel Act and means any part of the
infrastructure of a telecommunications network and includes such items as lines, equipment,
masts or antennae. However, in section 7 of the Tel Act such facilities must be used, or for
16
use, in or in connection with a telecommunications network. While the majority of equipment
to be installed by emergency service organisations would be expected to fall under this
definition, it is possible that some equipment may not be intended to carry communications.
For example, it could include measuring devices. As a result, the definition in proposed
section 19G also captures equipment that may not be for use in or in connection with a
telecommunications network.
As the likely types of equipment that may need to be installed, and their uses, cannot be
predicted with certainty over the long term, proposed subsection 19G(2) would confer a
power on the Minister to specify, by legislative instrument, one or more classes of things as
'equipment'. This power could be used to capture new types of equipment that may be
developed but are not clearly captured by the specific classes of things included in the
definition in the amendment. As any Ministerial determination would be a legislative
instrument, that instrument would be subject to the consultation, disallowance and
publication requirements in the Legislation Act 2003.
Proposed subsection 19H - Eligible person
Proposed section 19H defines who is an eligible person for the purpose of the tower and site
access regime under new Part BA of Division 2 of Part 2 of the NBN Act, as would be
inserted by Schedule 1 to the Bill.
The term, 'eligible persons', would be defined as covering five classes of persons: a police
force or service (paragraph 19H(1)(a)), a fire service (paragraph (b)), an ambulance service
(paragraph (c)), or State or Territory emergency services(paragraph (d)); and any person
included in a class of persons specified in a ministerial instrument from time to time
(paragraph (e) and described in further detail below).
There is strong public interest in allowing the specific class of entities specified in paragraphs
19H(1)(a)-(d) to access towers and associated sites that are owned or operated by NBN
corporations as they can use the NBN towers to supporting more efficient and effective
internal communications especially in natural disaster or emergency situations. Installation of
equipment on towers owned by NBN corporations will allow these eligible persons to, for
instance, improve service radio networks and assist in emergency response situations. This
will help them reduce costs and operate efficiently.
Proposed subsection 19H(2) provides that the Minister may, by legislative instrument,
specify one or more classes of persons who can seek access to NBN corporations' towers
(paragraph 19H(2)(a)) and also declare specified limitations or restrictions that are applicable
to that class of persons (paragraph 19H(2)(b)). This power for the Minister to specify
additional classes of persons provides flexibility to expand the tower access regime, if
appropriate, in the future, if other classes of persons are identified who could access NBN
towers. Expanding access should only be considered where there is a clear benefit to the
public from doing so, and proposed subsection 19H(3) therefore provides that the Minister
must not make an instrument under subsection (2) unless the Minister is satisfied that it is in
the public interest to do so.
The power to specify limitations or restrictions is provided to allow the Minister to consider
the relevant circumstances in which access should be provided. For example, there may be
public interest reasons for a class of persons to obtain access, but there may need to be certain
restrictions for reasons of security, public safety or to promote competition. Those issues
would be considered at the relevant time.
NBN corporations, as carriers will be required, under subsection 313(1A) of the Tel Act
(which takes effect on 18 September 2018) to do their best to protect telecommunications
17
facilities they own, operate or use from unauthorised access that could compromise the
confidentiality of information or the availability and integrity of facilities. Given this
requirement, it is appropriate to ensure that the expansion of the class of eligible purposes
eligible to access NBN transmission towers is suitably constrained, therefore, before making
a legislative instrument under proposed subsection 19H(2), the Minister must consult with
the Minister who administers the Australian Federal Police Act 1979. It is expected that
potential concerns and issues can be identified through the consultation required under
proposed subsection 19H(4) and appropriate restrictions or limitations on access imposed in
respect of any persons proposed to be specified in an instrument under proposed subsection
19H(2)).
Proposed section 19J - Site
Proposed section 19J would define the term 'site' broadly as:
land;
a building on land; or
a structure on land.
This definition captures the locations on which towers, or associated facilities, may be
located and is consistent with the definition of 'site' in clause 31 of the Tel Act.
Proposed section 19K - Goods
Proposed section 19K sets out, for the avoidance of doubt, that goods include electricity.
Typically, electricity is required to power and operate the equipment installed on towers.
Section 4 of the CCA already defines electricity as a good.
Item 3 - Section 37
Item 3 makes a consequential amendment to section 37 of the NBN Co Act to include
references to new sections 19A, 19B, 19D, 19E and 19F. The effect of this change is that
compliance with the new access regime, and associated non-discrimination and publication
obligations will constitute carrier licence conditions.
Item 4 - Subsection 38(2)
Item 4 makes a consequential amendment to subsection 38(2) of the NBN Act to include
references to new sections 19A, 19B, 19D, 19E and 19F. The effect of this change is that if
an NBN corporation is a service provider, the NBN corporation must comply with any these
new provisions which are described in detail above.
Item 5 - Section 39
Item 5 makes a consequential amendment to section 39 of the NBN Act to include references
to new sections 19A, 19B, 19D, 19E and 19F. The effect of this change is to ensure that the
new provisions would not limit any carrier licence conditions that may be declared under
section 63 of the Tel Act. Section 63 of the Tel Act provides that the Minister may, by written
instrument, impose conditions applying to carrier licences.
18
Item 6 - Section 40
Item 6 makes a consequential amendment to section 40 of the NBN Act to include references
to new sections 19A, 19B, 19D, 19E and 19F. The effect of this change is that these new
sections would not limit the rules that may be set out under section 99 of the Tel Act.
Section 99 of the Tel Act allows the ACMA, after consulting the ACCC, to make a written
determination setting out rules that apply to service providers in relation to the supply of
specified carriage services or specified content services.
19
Schedule 2 - Temporary Facilities
The amendments set out in Schedule 2 to the Bill would amend Schedule 3 to the Tel Act to
enable temporary towers to be specified by the Minister for Communications as low-impact
facilities in certain circumstances.
The amendments would include specified conditions to ensure that the temporary towers are
removed within a set timeframe and that carriers restore the land on which the temporary
facilities were installed.
The proposed changes would allow carriers to install temporary telecommunications facilities
using carrier powers and immunities. These facilities would be used to assist ESOs in times
of emergencies and natural disasters, to minimise disruption to services during maintenance
or replacement of existing facilities, and to provide additional coverage during events (e.g.
sporting events and music festivals) and periods of peak holiday demand.
Item 1 - Clause 2 of Schedule 3
Item 1 of Schedule 2 to the Bill would insert two new definitions of terms that would be
included in operative provisions of Schedule 3 to the Tel Act.
The term high-demand holiday period would be defined to mean a school holiday period, or
a public holiday and the weekend either immediately before or after that public holiday in
any State or internal Territory. A holiday period would not be limited to the official holidays
in the State or Territory in which the facility is to be installed. This term is relevant to
proposed paragraph 6(5)(f) and new clause 8C.
The term public land would be defined to mean land that is the property of the
Commonwealth, a State or Territory, a local government body or an authority of a
Commonwealth, a State or Territory. The land must also be a public place, which is defined
in existing clause 2 of Schedule 3 to the Tel Act. 'Land' is already defined in Schedule 3 to
the Tel Act. The term, 'public land' would be relevant to proposed paragraphs 6(5)(b) to (f).
Item 2 - Paragraphs 6(5)(a) and (b) of Schedule 3
Part 1 of Schedule 3 to the Tel Act provides authority for carriers to inspect land, maintain
facilities, connect subscribers to an existing network or install low-impact facilities or
temporary defence facilities. State or Territory law regulates the installation of other
facilities.
Clause 37 of Schedule 3 provides certain immunities for telecommunications carriers
undertaking inspection, installation and maintenance activities, including from state and
territory laws relating to land use, planning, design and construction.
Subclause 6(1)(b) of Schedule 3 to the Tel Act allows for the installation of a low-impact
facility and subclause 6(3) allows the Minister to determine that specified facilities are low-
impact facilities for the purpose of clause 6 of Schedule 3 to the Tel Act.
Existing paragraphs 6(5)(a) and (b) allow for a tower to be a low-impact facility if that tower
is attached to a building and its height does not exceed 5 metres.
Item 2 of Schedule 2 to the Bill would repeal paragraphs 6(5)(a) and (b) of Schedule 3 and
insert seven replacement paragraphs. The existing tower requirement as set out in paragraph
6(5)(a) would be maintained (refer replacement paragraph 6(5)(a)). However, the additional
paragraphs to be inserted into subsection 6(5) would allow for temporary towers to be
specified by the Minister as low-impact facilities, provided the proposed facilities were used
for one of the following purposes:
20
minimise disruption to the supply of a carriage service during emergency or routine
maintenance of an existing facility: proposed paragraph 6(5)(b);
minimise disruption to the supply of a carriage service during the construction or
installation of a replacement facility: proposed paragraph 6(5)(c);
provide additional capacity to supply carriage services to persons attending an event
at a venue: proposed paragraph 6(5)(d);
provide additional capacity to supply carriage services to persons attending any or all
of two or more events at a venue, where the events are no more than 28 days apart;
proposed paragraph 6(5)(e);
provide additional capacity to supply carriage services to persons during a peak
holiday period: proposed paragraph 6(5)(f). This would ensure that a temporary
facility can be installed as a low-impact facility on public land in an area that
experiences high services demand during parts of the year, such as seaside towns and
ski lodges; or
provide capacity, either wholly or partly, to provide capacity to supply carriage
services to one or more ESO so that the ESO can deal with an emergency or natural
disaster: proposed paragraph 6(5)(g).
A temporary tower would be limited to no more than 30 metres in height (measured from the
ground to the top of the tower), except when it is being installed to:
minimise disruption to the supply of a carriage service that might result from the
maintenance or replacement of another facility in a rural area, in which case it could
be the higher of 30 metres or the height of the tower being maintained or replaced; or
provide capacity to an ESO so that it can deal with an emergency or natural disaster,
in which case there is no height restriction given the purpose of the installation and
need for prompt and effective deployments.
Item 2 includes requirements that there be a clear nexus with particular land for some
temporary tower installation--i.e. a temporary facility installed to minimise disruption during
maintenance of an existing facility or installation of a replacement facility; or installed to
provide additional capacity during an event or events.
In these circumstances, Item 2 provides a cascading list of scenarios that dictate where a
carrier can install the facility. Where it is practicable to achieve the permitted purpose for
which the temporary facility is intended to be installed (i.e. to minimise the disruption to the
supply of a carriage service or to provide additional capacity), the temporary tower must be
installed:
on the land on which the other facility is located;
where installation on the original land is not possible, the tower is to be installed on
public land, or
where installation on public land is not possible, the tower is to be installed in the
vicinity of the original facility or where the event is being held. The term 'vicinity' is
not defined and is intended to have its ordinary meaning.
21
Item 3 - After subclause 6(5) of Schedule 3
Item 3 of Schedule 2 to the Bill would insert three new subclauses after existing subclause
6(5) of Schedule 3 to the Tel Act. These new provisions are consequential to the change
proposed by Item 2.
Subclause 6(5A)
Proposed subclause 6(5)(b) would allow temporary telecommunications facilities not higher
than 30 metres to be specified by the Minister as low-impact facilities when used minimise
disruption to the supply of a carriage service during emergency or routine maintenance of an
existing facility. For the avoidance of doubt, proposed subclause 6(5A) would set out that for
the purposes of proposed paragraph 6(5)(b), the term 'maintenance' would have the same
meaning as in existing clause 7.
Subclause 6(5B)
For the purposes of proposed subclauses 6(5)(d) and (e), proposed subclause 6(5B) would
provide that a concert, festival or sporting event are examples of an event. These examples
would not constitute an exhaustive list of events. The term 'event' has not been defined and it
is intended that the term would have its ordinary meaning and given a broad interpretation.
For example, an event could include a major conference, exhibition or commemoration.
Subclause 6(5C)
Proposed subclause 6(5D) would specify that for the purposes of proposed subclauses 6(5)(b)
to (f), the height of a tower is to be determined as the distance between the top of the tower
and ground level. For example, if there is a temporary tower mounted on a trailer or other
platform, the height limitation for the tower will also encompass the trailer height.
Item 4 - After subclause 7(3) of Schedule 3
Item 4 of Schedule 2 to the Bill would insert a new subclause 7(3A) into Schedule 3 to the
Tel Act. This new provision would provide that a reference to maintenance in existing clause
7 includes a reference to the installation of a temporary facility (other than a tower within the
meaning of proposed subclause 6(5) of Schedule 3 to the Tel Act), provided that the facility
is installed to minimise disruption to the supply of a carriage service during maintenance of
an original facility.
The temporary facility would need to be installed on land in accordance with the cascading
list of scenarios described above under Item 2.
The change proposed by Item 4 removes any doubt about the ability for carriers to
temporarily install facilities, such as mobile exchanges on wheels, as part of maintenance
activities undertaken by a carrier in accordance with Division 4 of Part 1 of Schedule 3.
Item 5 - After clause 8 of Schedule 3
In exercising a power under Division 2, 3 or 4 of Part 1 of Schedule 3, existing clause 8
requires carriers to take all reasonable steps to ensure that the carrier causes as little detriment
and inconvenience, and does as little damage, as is practicable.
Item 5 would insert three new clauses (clauses 8A, 8B and 8C) in Schedule 3 to the Tel Act
to ensure that temporary facilities installed under clause 6 of Schedule 3 are removed within a
set timeframe. These new requirements would be in addition to the existing requirements
under clause 8.
22
Clause 8A - Carrier to remove temporary facilities
Proposed subclause 8A(1) would provide that if a carrier installs a low-impact facility under
Division 3 on land and the installation is covered by paragraph 6(5)(b), the carrier must
remove the facility within 28 days after the completion of the maintenance. This requirement
applies to a temporary facility installed to minimise disruption during maintenance of an
existing facility.
Proposed subclause 8A(2) substantially mirrors proposed subclause 8A(1), however applies
in respect of facilities covered by new paragraph 6(5)(c), being facilities installed to minimise
disruption to the supply of a carriage service that might result from the carrying out of the
replacement of another facility. In such a case, the carrier must remove the facility within 28
days after the completion of the replacement works.
Proposed subclause 8A(3) substantially mirrors proposed subclause 8A(1), however applies
in respect of facilities covered by new paragraph 6(5)(d), being facilities installed to provide
additional capacity to supply carriage services to person who are attending an event at a
venue. In such a case, the carrier must remove the facility within 28 days after the end of the
event.
Proposed subclause 8A(4) substantially mirrors proposed subclause 8A(1), however applies
in respect of facilities covered by new paragraph 6(5)(e), being facilities installed to provide
additional capacity to supply carriage services to person who are attending any or all of two
or more events at a venue. In such a case, the carrier must remove the facility within 28
business days after the end of the last of the events.
Proposed subclause 8A(5) substantially mirrors proposed subclause 8A(1), however applies
in respect of facilities covered by new paragraph 6(5)(g), being facilities installed to provide
additional capacity to supply carriage services to one or more ESO so that the ESO can deal
with an emergency or natural disaster. The carrier would be required to remove the facility
within 28 days after the facility ceases to be needed by the ESO.
Proposed subclause 8A(6) substantially mirrors subclause 8A(1), however applies in respect
of a temporary facility installed under proposed paragraph 7(3A) of Schedule 3 to the Tel
Act, being facilities installed as part of a maintenance activity. The carrier would be required
to remove the facility within 28 days after the maintenance is completed.
Proposed subclause 8A(7) is included to avoid doubt, and would specify that the term 'low-
impact facility' as used in the new clause 8A has the same meaning as in existing clause 6.
The 28 calendar days' timeframe to remove a temporary tower should provide carriers with a
sufficient period of time to arrange for the dismantling and removal of the temporary facility
once it is no longer required.
Clause 8B - Low-impact facility installed at a venue--annual limit
Proposed subclause 8B(1) would provide that a carrier installs one or more low impact
facilities at a particular place under Division 3 and the installations are covered by paragraph
6(5)(d) or (e) (i.e. a temporary facility installed to provide additional capacity during an event
or events), the carrier must ensure that the total number of days in a calendar year on which
those facilities remain at that place does not exceed 183. This requirement applies to
temporary facility installed to service one or more events.
Proposed subclause 8B(2) is included to avoid doubt, and would specify that the term 'low-
impact facility' as used in the new clause 8B has the same meaning as in existing clause 6.
23
Clause 8C - Facility installed to provide additional capacity during a high-demand holiday
period--annual limit
Proposed subclause 8C(1) would provide that a temporary facility installed under proposed
paragraph 6(5)(f) of Schedule 3 to the Tel Act (i.e. a temporary facility installed during a
peak holiday period) would not be permitted to be installed for more than 90 days in a
calendar year in that place. The 90 calendar days' timeframe should provide an adequate
amount of time for the required seasonal coverage while balancing the interests of the
impacted local community. For example, a temporary tower could be installed on public land
at a ski resort during New South Wales winter school holidays to provide additional coverage
during this busy period, but not be allowed to remain for more than 90 days as a low-impact
facility. Should a carrier wish for the tower to be a permanent facility, it would need to reach
agreement with a landowner and comply with New South Wales planning requirements.
24
Item 6 - Clause 9 (heading) of Schedule 3
Existing clause 9 of Schedule 3 to the Tel Act provides that if a carrier engages in an activity
under Division 2, 3 or 4 in relation to any land, the carrier must take all reasonable steps to
ensure that the land is restored to a condition that is similar to its condition before the activity
began.
Item 6 would make a minor consequential change to the heading at clause 9 of Schedule 3 by
replacing the heading with, 'Carrier to restore land--general'. This change recognises that the
updated clause 9 would also cover restoration requirements in the proposed clause 9A (see
item 7 of Schedule 2 to the Bill).
Item 7 - After clause 9 of Schedule 3
Item 7 of Schedule 2 to the Bill would insert clause 9A into Schedule 3 to the Tel Act,
comprising six new subclauses.
Proposed subclause 9A(1) would provide that if a carrier installs a low-impact facility under
Division 3 on particular land and the installation is covered by paragraphs 6(5)(b) to (g),
when removing the facility, the carrier must take all reasonable steps to ensure that the land is
restored to a condition that is similar to its condition before the installation began. This
requirement applies to a temporary facility installed to minimise disruption during
maintenance of an existing facility or installation of a replacement facility; or installed to
provide additional capacity during an event or events, or during a peak holiday period; or to
provide capacity to an ESO so that the ESO can deal with a natural disaster or emergency.
Proposed subclause 9A(2) substantially mirrors proposed subclause 9A(1), yet applies in
respect of facilities covered by new subclause 7(3A), in general terms being facilities
installed to minimise disruption to the supply of a carriage service that might result from the
maintenance of another facility.
Proposed subclauses 9A(3) and (4) would require a carrier to take all reasonable steps to
commence the restoration within 10 business days after the removal of the facility.
Proposed subclause 9A(5) dis-applies the 10 business day removal timeframe set out in
proposed subclauses 9A(3) and (4) in cases where the carrier reaches agreement with the
owner or occupier of the land. In such cases, the carrier would need to complete land
restoration activities within the timeframe agreed with the owner or occupier.
Proposed subclause 9A(6) is included to avoid doubt, and would specify that the term 'low-
impact facility' as used in the new clause 9A has the same meaning as in existing clause 6.
Item 8 - At the end of clause 17 of Schedule 3
Item 8 of Schedule 2 to the Bill would insert subclause 17(8) into Schedule 3 to the Tel Act
so that a temporary tower installed under proposed paragraph 6(5)(g) (i.e. a temporary tower
installed to provide capacity to an ESO so that the ESO can deal with an emergency or
natural disaster) does not need to comply with the notification requirements in subclause
17(1) of Schedule 3 to the Tel Act.
Item 8 of Schedule 2 to the Bill would insert subclause 17(9) into Schedule 3 to the Tel Act
to make clear that 'low-impact facility' has the same meaning as in clause 6 of Schedule 3 to
the Tel Act.
25