Carrier powers and immunities
Schedule 3 of the Telecommunications Act 1997 provides carriers with powers to enter land to inspect land, maintain facilities and install certain types of facilities, and immunity from some state and territory laws, including planning laws, when carrying out those activities.
The regime facilitates the expeditious and efficient rollout of infrastructure by enabling it to be done nationally under a uniform streamlined process, rather than multiple state, territory and local government requirements. This assists carriers meeting consumer demands for services while reducing the administrative burden on these tiers of government and carriers.
The Commonwealth regime primarily covers the installation of low-impact facilities. The regime also applies to temporary facilities for use by a defence organisation and facilities for which the Australian Communications and Media Authority (ACMA) has granted a Facility Installation Permit (FIP). The Act does not provide land entry rights or immunity from state and territory law if a facility does not belong to one of these classes. If this is the case, carriers will need to comply with state and territory laws and planning regulations.
Although only limited types of facilities may be installed under these powers and immunities, the Commonwealth regime provides carriers land access powers for the inspection of land and the maintenance of telecommunications infrastructure generally.
Low-impact facilities
Low-impact facilities are designated by the Minister for Broadband, Communications and the Digital Economy in the Telecommunications (Low-Impact Facilities) Determination 1997. They include some radiocommunications facilities, underground and above-ground housing, underground and some aerial cables, public payphones, emergency and co-located facilities.
The types of facilities that are listed as low-impact are those considered to be essential to the effective and efficient operation of telecommunications networks in providing services to the public, but are considered to be of low visual impact and unlikely to cause significant disruption to the community during installation or operation.
This approach to the specification of low-impact facilities encourages carriers to roll out networks using components that fall within strict type, size, colour and location limitations, thereby minimising the impact of telecommunications infrastructure on the community generally while expediting the supply of services.
Facilities to be installed in areas of environmental significance—including those listed under Commonwealth, state or territory heritage registers—cannot be low-impact facilities and would be subject to usual Commonwealth, state or territory approval processes. Facilities remain subject to other Commonwealth laws which would ordinarily apply, such as the Environment Protection and Biodiversity Conservation Act 1999 or the broader telecommunications regime, including the Radiocommunications Act 1992.
On 23 November 2012, a minor amendment was made to the Determination to clarify that ancillary facilities needed to support the operation of a low-impact facility are also low-impact facilities for the purposes of the Schedule 3. The amendment follows a public consultation process.
The 
Telecommunications (Low-impact Facilities) Determination 1997 (Amendment No. 1 of 2012) and the associated Explanatory Statement are on the ComLaw website.
Obligations on carriers
The Act imposes a number of conditions on the exercise of carrier powers and immunities, including a requirement to provide landowners and occupiers with notice before entering land. In addition to the conditions in the Act, the minister issues a Code of Practice (the Telecommunications Code of Practice 1997) which sets out further obligations on carriers. For example, under the code carrier’s must comply with good engineering practice and consider noise limits, the environment and obstruction of essential services when installing or maintaining facilities. Obligations on carriers under the Telecommunications Act and code also apply to contractors acting on behalf of carriers.
Notification and objection
In general, carriers must notify landowners or occupiers in writing at least 10 business days before undertaking any activities upon their land. Exceptions to this notification period are set out in the Telecommunications Act and include, for example, cases where a land owner or occupier has waived the rights to notification or emergency situations. Alternative arrangements exist for situations where the carrier cannot locate the land owner.
If an owner or occupier receives a notice from a carrier regarding its intention to undertake an activity upon the land, the owner or occupier may object to the activity in writing at least five business days before the carrier proposes to commence activity.
If a valid objection is lodged, the carrier must not engage in the proposed activity until the objection is either resolved satisfactorily between the carrier and the objector, or referred to the Telecommunications Industry Ombudsman (TIO).
Compensation
The Telecommunications Act provides for carriers to pay compensation for financial loss or damage that occurs as a result of the use of powers and immunities. This includes damage of a temporary or permanent nature. If an appropriate amount of compensation cannot be agreed between the parties the Act provides for compensation arrangements to be determined by the courts.
Enforcement
Compliance with the Telecommunications Act and the Telecommunications Code of Practice is a licence condition. As the regulator, the ACMA may enforce licence conditions through a range of mechanisms, from issuing directions to carriers to initiating court action in serious cases
Obligations on landholders and occupiers
Under the Telecommunications Act, infrastructure which is installed by a telecommunications carrier, including cabling, remains the property of that carrier. This means that property owners have certain responsibilities and a duty of care to carriers under common law. If a carrier is able to demonstrate that a property owner had deliberately or negligently caused damage to a cable, the carrier may be able to seek damages from the property owner in a court of law. Criminal offences may also apply for intentional damage to a carriers property.
Providing services to multi-dwelling units
Carriers supplying telecommunications services to multi-dwelling units often need to install termination boxes and other equipment within the building. Some of these in-building facilities are designated as low-impact facilities. This equipment is generally unobtrusive and allows occupants of multi-dwelling units to access telecommunications services.
The Communications Alliance (formerly the Australian Communications Industry Forum) worked closely with carriers to find technical solutions to access issues relating to in-building subscriber equipment. These are set out in the industry guideline on building access operations and installation.
ACIF Code G571:2002 Building access operations and installation (PDF, 890 KB) - Communications Alliance website
Regulatory measures to facilitate the rollout of superfast broadband
Amendments to the powers and immunities to facilitate the rollout of the National Broadband Network and other next-generation broadband networks came into effect in December 2011. The changes will allow NBN Co Limited and other comparable carriers to more readily deploy fibre in streets, connect premises and locate equipment in multi-unit buildings.
These amendments were made to the Telecommunications Regulations 2001 and the Telecommunications (Low-impact Facilities) Determination 1997 following a public consultation process.
Further details about the changes, including the public consultation process, are available at the following page:
Putting cables underground
The Telecommunications Act 1997 required the government to undertake a review into putting aerial cables underground by 1 July 1998. The report, ‘Putting Cables Underground’, is provided here for reference:
Contact the TIO or the ACMA
The TIO provides a free service to people unable to resolve a complaint directly with a carrier. Contact the TIO:
PO Box 276
Collins Street West
Melbourne Vic 8007
Tel: 1800 062 058 or 03 8600 8700
TTY: 1800 675 692.
Further information is at www.tio.com.au.
The ACMA is the Australian regulator of telecommunications carriers. Further information is available at www.acma.gov.au.
