On 9 June 2017 the Australian Government released a consultation paper on proposed amendments to the regulation of telecommunications carrier powers and immunities. The consultation period will end on 21 July. As these proposals have been under consideration by the Government for some time, the telecommunications sector has urged the Government to move quickly to implementation following that consultation period. If the Government determines to proceed, there would be sufficient time to introduce the relevant legislation in Parliament, and make the changes to the associated regulation, before the end of the year.
What is the current law?
Under Schedule 3 of the Telecommunications Act 1997 (Cth) (Telco Act) telecommunications carriers are granted certain powers and immunities. Schedule 3 is supported by the Telecommunications (Low-impact Facilities) Determination 1997 (Cth) (LIFD) and the Telecommunications Code of Practice 1997 (Code). The industry has developed its own code, the Industry Code for Mobile Phone Base Station Deployment C564:2011, which applies for mobile base station installation. Under this regime, carriers are able to enter land (including public spaces in buildings) for inspection purposes and to install and maintain specified types of telecommunications network facilities. Carriers are also provided with immunities from certain State/Territory based planning laws and regulations. The intention of these provisions is to allow carriers to quickly, with the minimum of red tape, install and maintain equipment necessary for the provision of telecommunications services. Of course, the interests of carriers need to be balanced against the interests of land owners and occupiers, who are entitled to the enjoyment of property without unnecessary encroachment by third parties. The most common type of facilities installed under Schedule 3 are “low-impact facilities”, as detailed in the LIFD. Only activities which comply with the conditions set out in Schedule 3 and the Code (including to minimise damage and restore land) are permitted. Land owners and occupiers have rights to object to the proposed activities in some cases.
What is proposed to change?
Telecommunications industry research estimates that there would be economic and social productivity benefits of $50 million per annum and regulatory cost savings of $100 million if the proposed changes are adopted. The changes fall into the following categories:
- Clarification of existing powers and immunities: For example, the LIFD would be amended to clarify that low-impact facilities may be installed in an area or building subject to a local government heritage overlay or urban conservation map, which are instruments used by some local governments, provided the relevant area or building is itself not listed on a heritage register.
- Incorporation of additional facilities: Amongst other amendments, it is intended that radiocommunications lens antennas (which are used to transmit and receive radio signals) of up to 4 cubic metres would be added to the LIFD as a potential new type of low-impact facility and allowed in residential, commercial, industrial and rural areas. This change would particularly benefit NBN Co, which uses such equipment in its National Broadband Network fixed wireless rollout. To take another example, it is also proposed to add to the LIFD cabinets of not more than 3 metres high and with a base of not more than 2 square metres as a potential new type of low-impact facility, provided in each case the cabinet is sited near and used in conjunction with a designated radiocommunications facility (for example, a fixed wireless tower).
- Changes to specified facility types: For example, the permitted maximum size of radiocommunications and satellite dishes and radio terminal antennas located in rural and industrial areas and used for subscriber connection or for the relevant network more generally is proposed to be increased from 1.8 to 2.4 metres in diameter. Another example is a proposed amendment that would allow antennas and their mounts to protrude up to 5 metres above the building/structure to which they are attached, instead of only 3 metres as is currently the case.
- Streamlining land owner notification and objection rules: A key change is that the Code would be amended to provide that, where land owners/occupiers are able to make objections, this must be done within 5 business days of receipt of a notice that the relevant activities will be undertaken. Under the current regime, longer periods to object are permitted in some circumstances. Carriers will also be able to refer objections to the Telecommunications Industry Ombudsman of their own volition (rather than waiting for the relevant land owner or occupier to request this) to seek to resolve disputes more quickly.