TELECOMMUNICATIONS ACT 1997 - SCHEDULE 3 Carriers' powers and immunities
TELECOMMUNICATIONS ACT 1997 - SCHEDULE 3
Carriers' powers and immunitiesNote: See section 484.
Division 1 -- Simplified outline and definitions
The following is a simplified outline of this Part:
• A carrier may enter on land and exercise any of the following powers:
(a) the power to inspect the land to determine whether the land is suitable for the carrier's purposes;
(b) the power to install a facility on the land;
(c) the power to maintain a facility that is situated on the land.
• The power to install a facility may only be exercised if:
(a) the carrier holds a facility installation permit; or
(b) the facility is a low - impact facility; or
(c) the facility is a temporary facility for use by, or on behalf of, a defence organisation for defence purposes; or
(d) the installation is carried out before 1 July 2000 for the sole purpose of connecting a building to a network that was in existence on 30 June 1997.
• A facility installation permit will only be issued in relation to a facility if:
(a) the carrier has made reasonable efforts to negotiate in good faith with the relevant proprietors and administrative authorities; and
(b) in a case where the facility is a designated overhead line--each relevant administrative authority has approved the installation of the line; and
(c) the telecommunications network to which the facility relates is or will be of national significance; and
(d) the facility is an important part of the telecommunications network to which the facility relates; and
(e) either the greater part of the infrastructure of the telecommunications network to which the facility relates has already been installed or relevant administrative authorities are reasonably likely to approve the installation of the greater part of the infrastructure of the telecommunications network to which the facility relates; and
(f) the advantages that are likely to be derived from the operation of the facility in the context of the telecommunications network to which the facility relates outweigh any form of degradation of the environment that is likely to result from the installation of the facility.
• In exercising powers under this Part, a carrier must comply with certain conditions, including:
(a) doing as little damage as practicable;
(b) acting in accordance with good engineering practice;
(c) complying with recognised industry standards;
(d) complying with conditions specified in the regulations;
(e) complying with conditions specified in a Ministerial Code of Practice;
(f) complying with conditions specified in a facility installation permit;
(g) giving notice to the owner of land.
In this Part:
"Aboriginal person" means a person of the Aboriginal race of Australia.
"defence organisation" means:
(a) the Defence Department; or
(b) the Australian Defence Force; or
(c) an organisation of a foreign country, so far as the organisation:
(i) has functions corresponding to functions of, or of a part of, the Defence Department or the Australian Defence Force; and
(ii) is authorised by the Commonwealth to operate or train in Australia or an external Territory; or
(d) a part of such an organisation or body.
"designated overhead line" has the meaning given by clause 3.
"ecological community" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"ecosystem" means a dynamic complex of plant, animal and micro - organism communities and their non - living environment interacting as a functional unit.
"enter on land" includes enter on a public place.
"environment" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"Environment Secretary" means the Secretary of the Department responsible for the administration of the Environment Protection and Biodiversity Conservation Act 1999 .
"facility installation permit" means a permit issued under clause 25.
"high-demand holiday period" means:
(a) a period of a single day; or
(b) a period of 2 or more consecutive days;
where that day, or each of those days, as the case may be, is:
(c) a public holiday, or a public school holiday, in any State or internal Territory; or
(d) a Saturday or a Sunday of a weekend immediately preceding a Monday that is a public holiday, or public school holiday, in any State or internal Territory; or
(e) a Saturday or a Sunday of a weekend next following a Friday that is a public holiday, or public school holiday, in any State or internal Territory.
"installation" , in relation to a facility, includes:
(a) the construction of the facility on, over or under any land; and
(b) the attachment of the facility to any building or other structure; and
(c) any activity that is ancillary or incidental to the installation of the facility (for this purpose, installation includes an activity covered by paragraph (a) or (b)).
"international agreement" means:
(a) a convention to which Australia is a party; or
(b) an agreement or arrangement between Australia and a foreign country;
and includes, for example, an agreement, arrangement or understanding between a Minister and an official or authority of a foreign country.
"land" includes submerged land (but does not include submerged land that is beneath Australian waters within the meaning of Schedule 3A).
"listed international agreement" means an international agreement specified in the regulations.
"public inquiry" , in relation to a facility installation permit, means a public inquiry under Part 25 about whether the permit should be issued and, if so, the conditions (if any) that should be specified in the permit.
"public land" means land that:
(a) is the property of:
(i) the Commonwealth, a State or a Territory; or
(ii) a local government body; or
(iii) an authority of the Commonwealth or of a State or Territory; and
(b) is a public place.
"public place" includes a place to which members of the public have ready access.
"public utility" means a body that provides to the public:
(a) reticulated products or services, such as electricity, gas, water, sewerage or drainage; or
(b) carriage services (other than carriage services supplied by a carriage service provider); or
(c) transport services; or
(d) a product or service of a kind that is similar to a product or service covered by paragraph (a), (b) or (c).
"threatened ecological community" means an ecological community that is included in the list of threatened ecological communities kept under Division 1 of Part 13 of the Environment Protection and Biodiversity Conservation Act 1999 .
"threatened species" means a species that is included in one of the following categories of the list of threatened species kept under Division 1 of Part 13 of the Environment Protection and Biodiversity Conservation Act 1999 :
(a) extinct in the wild;
(b) critically endangered;
(c) endangered;
(d) vulnerable.
"Torres Strait Islander" means a descendant of an indigenous inhabitant of the Torres Strait Islands.
A reference in this Part to a designated overhead line is a reference to a line:
(a) that is suspended above the surface of:
(i) land (other than submerged land); or
(ii) a river, lake, tidal inlet, bay, estuary, harbour or other body of water; and
(b) the maximum external cross - section of any part of which exceeds:
(i) 13 mm; or
(ii) if another distance is specified in the regulations--that other distance.
4 Extension to a tower to be treated as the installation of a facility
(1) For the purposes of the application of this Part to the installation of facilities, if:
(a) a tower is a facility; and
(b) the tower is, or is to be, extended;
then:
(c) the carrying out of the extension is to be treated as the carrying out of the installation of the facility; and
(d) the extension is to be treated as a facility in its own right.
(2) To avoid doubt, a reference in this clause to a tower does not include a reference to an antenna.
(3) In this clause:
"tower" means a tower, pole or mast.
Division 2 -- Inspection of land
(1) A carrier may, for the purposes of determining whether any land is suitable for its purposes:
(a) enter on, and inspect, the land; and
(b) do anything on the land that is necessary or desirable for that purpose, including, for example:
(i) making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii) closing, diverting or narrowing a road or bridge; and
(iv) installing a facility in, over or under a road or bridge; and
(v) altering the position of a water, sewerage or gas main or pipe; and
(vi) altering the position of an electricity cable or wire.
(2) A carrier may, for the purpose of surveying or obtaining information in relation to any land that, in the carrier's opinion, is or may be suitable for its purposes:
(a) enter on any land; and
(b) do anything on the entered land that is necessary or desirable for that purpose, including, for example:
(i) making surveys and taking levels; and
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii) closing, diverting or narrowing a road or bridge; and
(iv) installing a facility in, over or under a road or bridge; and
(v) altering the position of a water, sewerage or gas main or pipe; and
(vi) altering the position of an electricity cable or wire.
(3) A reference in this Part to engaging in activities under this Division includes a reference to exercising powers under this Division.
Division 3 -- Installation of facilities
(1) A carrier may, for purposes connected with the supply of a carriage service, carry out the installation of a facility if:
(a) the carrier is authorised to do so by a facility installation permit; or
(b) the facility is a low - impact facility (as defined by subclause (3)); or
(c) the facility is a temporary facility for use by, or on behalf of, a defence organisation for defence purposes.
Note: If the installation of a facility is not authorised by this clause, the installation may require the approval of an administrative authority under a law of a State or Territory.
(2) If subclause (1) authorises a carrier to carry out a particular activity, the carrier may, for purposes in connection with the carrying out of that activity:
(a) enter on, and occupy, any land; and
(b) on, over or under the land, do anything necessary or desirable for those purposes, including, for example:
(i) constructing, erecting and placing any plant, machinery, equipment and goods; and
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth; and
(iii) making cuttings and excavations; and
(iv) restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material; and
(v) erecting temporary workshops, sheds and other buildings; and
(vi) levelling the surface of the land and making roads.
(3) The Minister may, by legislative instrument, determine that a specified facility is a low - impact facility for the purposes of this clause. The determination has effect accordingly.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .
(4) A designated overhead line must not be specified in an instrument under subclause (3).
(4A) A submarine cable (within the meaning of Schedule 3A) must not be specified in an instrument under subclause (3).
(5) A tower must not be specified in an instrument under subclause (3) unless:
(a) both:
(i) the tower is attached to a building; and
(ii) the height of the tower does not exceed 5 metres; or
(b) the following conditions are satisfied:
(i) the tower is a temporary facility that is installed to minimise disruption to the supply of a carriage service that might result from the maintenance of another facility;
(ii) in a case where the tower is installed in a rural area (within the meaning of the instrument)--the height of the tower does not exceed 30 meters or the height of the other facility, whichever is the higher;
(iii) in a case where the tower is not installed in a rural area (within the meaning of the instrument)--the height of the tower does not exceed 30 metres;
(iv) in a case where it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on the land on which the other facility is located--the tower is installed on that land;
(v) in a case where subparagraph (iv) does not apply, but it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on public land--the tower is installed on public land;
(vi) in a case where neither subparagraph (iv) nor (v) applies--the tower is installed in the vicinity of the other facility; or
(c) the following conditions are satisfied:
(i) the tower is a temporary facility that is installed to minimise disruption to the supply of a carriage service that might result from carrying out the replacement of another facility;
(ii) in a case where the tower is installed in a rural area (within the meaning of the instrument)--the height of the tower does not exceed 30 meters or the height of the other facility, whichever is the higher;
(iii) in a case where the tower is not installed in a rural area (within the meaning of the instrument)--the height of the tower does not exceed 30 metres;
(iv) in a case where it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on the land on which the other facility is located--the tower is installed on that land;
(v) in a case where subparagraph (iv) does not apply, but it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on public land--the tower is installed on public land;
(vi) in a case where neither subparagraph (iv) nor (v) applies--the tower is installed in the vicinity of the other facility; or
(d) the following conditions are satisfied:
(i) the tower is a temporary facility that is installed to provide additional capacity to supply carriage services to persons who are attending an event at a venue;
(ii) the height of the tower does not exceed 30 metres;
(iii) in a case where it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on the land on which the venue is located--the tower is installed on that land;
(iv) in a case where subparagraph (iii) does not apply, but it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on public land--the tower is installed on public land;
(v) in a case where neither subparagraph (iii) nor (iv) applies--the tower is installed in the vicinity of the venue; or
(e) the following conditions are satisfied:
(i) the tower is a temporary facility that is installed to provide additional capacity to supply carriage services to persons who are attending any or all of 2 or more events at a venue;
(ii) the intervals between those events are not longer than 28 days;
(iii) the height of the tower does not exceed 30 metres;
(iv) in a case where it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on the land on which the venue is located--the tower is installed on that land;
(v) in a case where subparagraph (iv) does not apply, but it is practicable to achieve the purpose mentioned in subparagraph (i) by installing the tower on public land--the tower is installed on public land;
(vi) in a case where neither subparagraph (iv) nor (v) applies--the tower is installed in the vicinity of the venue; or
(f) the following conditions are satisfied:
(i) the tower is a temporary facility installed to provide additional capacity to supply carriage services to persons who are physically present in a particular area during a high - demand holiday period;
(ii) the height of the tower does not exceed 30 metres;
(iii) the tower is installed on public land; or
(g) the tower is a temporary facility that is installed wholly or partly to provide capacity to supply carriage services to one or more emergency services organisations (within the meaning of the instrument) so that those organisations can deal with an emergency or natural disaster.
(5A) For the purposes of paragraph (5)(b), maintenance has the same meaning as in clause 7.
(5B) For the purposes of paragraphs (5)(d) and (e), each of the following is an example of an event:
(a) a sporting event;
(b) a musical event;
(c) a cultural event.
(5C) For the purposes of paragraphs (5)(b), (c), (d), (e) and (f), the height of a tower or facility is the distance between:
(a) the top of the tower or facility; and
(b) ground level.
(6) To avoid doubt, a reference in subclause (5) to a tower does not include a reference to an antenna.
(7) An extension to a tower must not be specified in an instrument under subclause (3) unless:
(a) the height of the extension does not exceed 5 metres; and
(b) there have been no previous extensions to the tower.
For this purpose, tower has the same meaning as in clause 4.
(8) Paragraphs (1)(a) and (c) do not, by implication, limit subclause (3).
(9) A reference in this Part to engaging in activities under this Division includes a reference to exercising powers under this Division.
Division 4 -- Maintenance of facilities
(1) A carrier may, at any time, maintain a facility.
(2) A carrier may do anything necessary or desirable for the purpose of exercising powers under subclause (1), including (but not limited to):
(a) entering on, and occupying, land; and
(b) removing, or erecting a gate in, any fence.
(3) A reference in this clause to the maintenance of a facility (the original facility ) includes a reference to:
(a) the alteration, removal or repair of the original facility; and
(b) the provisioning of the original facility with material or with information (whether in electronic form or otherwise); and
(c) ensuring the proper functioning of the original facility; and
(d) the replacement of the whole or a part of the original facility in its original location, where the conditions specified in subclause (5) are satisfied; and
(e) the installation of an additional facility in the same location as the original facility, where the conditions specified in subclause (6) are satisfied; and
(f) in a case where any tree, undergrowth or vegetation obstructs, or is likely to obstruct, the operation of the original facility--the cutting down or lopping of the tree, or the clearing or removal of the undergrowth or vegetation, as the case requires.
(3A) A reference in this clause to the maintenance of a facility (the original facility ) includes a reference to the installation of a temporary facility (other than a tower within the meaning of subclause 6(5)), where the following conditions are satisfied:
(a) the temporary facility is installed to minimise disruption to the supply of a carriage service that might result from the maintenance of the original facility;
(b) in a case where it is practicable to achieve the purpose mentioned in paragraph (a) by installing the temporary facility on the land on which the original facility is located--the temporary facility is installed on that land;
(c) in a case where paragraph (b) does not apply, but it is practicable to achieve the purpose mentioned in paragraph (a) by installing the temporary facility on public land--the temporary facility is installed on public land;
(d) in a case where neither paragraph (b) nor (c) applies--the temporary facility is installed in the vicinity of the original facility.
(4) A reference in this clause to the maintenance of a facility does not include a reference to the extension of a tower. For this purpose, tower has the same meaning as in clause 4.
(5) For the purposes of paragraph (3)(d), the following conditions are specified:
(a) the levels of noise that are likely to result from the operation of the replacement facility are less than or equal to the levels of noise that resulted from the operation of the original facility;
(b) in a case where the original facility is a tower:
(i) the height of the replacement facility does not exceed the height of the original facility; and
(ii) the volume of the replacement facility does not exceed the volume of the original facility;
(c) in a case where the facility is not a tower:
(i) the volume of the replacement facility does not exceed the volume of the original facility; or
(ii) the replacement facility is located inside a fully - enclosed building, the original facility was located inside the building and the building is not modified externally as a result of the replacement of the original facility; or
(iii) the replacement facility is located inside a duct, pit, hole, tunnel or underground conduit;
(d) such other conditions (if any) as are specified in the regulations.
(6) For the purposes of paragraph (3)(e), the following conditions are specified:
(a) the combined levels of noise that are likely to result from the operation of the additional facility and the original facility are less than or equal to the levels of noise that resulted from the operation of the original facility;
(b) either:
(i) the additional facility is located inside a fully - enclosed building, the original facility is located inside the building and the building is not modified externally as a result of the installation of the additional facility; or
(ii) the additional facility is located inside a duct, pit, hole, tunnel or underground conduit;
(c) such other conditions (if any) as are specified in the regulations.
(7) For the purposes of paragraphs (5)(a), (b) and (c) and (6)(a), (b) and (c), trivial variations are to be disregarded.
(8) For the purposes of subclauses (5) and (6):
(a) the measurement of the height of a tower is not to include any antenna extending from the top of the tower; and
(b) the volume of a facility is the apparent volume of the materials that:
(i) constitute the facility; and
(ii) are visible from a point outside the facility; and
(c) a structure that makes a facility inside the structure unable to be seen from any point outside the structure is to be treated as if it were a fully - enclosed building.
(9) A reference in this Part to engaging in activities under this Division includes a reference to exercising powers under this Division.
(10) In this clause (other than subclause (4)):
"tower" means a tower, pole or mast.
Division 5 -- Conditions relating to the carrying out of authorised activities
8 Carrier to do as little damage as practicable
In engaging in an activity under Division 2, 3 or 4, a carrier must take all reasonable steps to ensure that the carrier causes as little detriment and inconvenience, and does as little damage, as is practicable.
8A Carrier to remove temporary facilities
(1) If:
(a) a carrier installs a low - impact facility under Division 3; and
(b) the installation is covered by paragraph 6(5)(b);
the carrier must remove the facility within 28 days after the completion of the maintenance mentioned in that paragraph.
(2) If:
(a) a carrier installs a low - impact facility under Division 3; and
(b) the installation is covered by paragraph 6(5)(c);
the carrier must remove the facility within 28 days after the completion of the replacement mentioned in that paragraph.
(3) If:
(a) a carrier installs a low - impact facility under Division 3; and
(b) the installation is covered by paragraph 6(5)(d);
the carrier must remove the facility within 28 days after the end of the event mentioned in that paragraph.
(4) If:
(a) a carrier installs a low - impact facility under Division 3; and
(b) the installation is covered by paragraph 6(5)(e);
the carrier must remove the facility within 28 days after the end of the last of the events mentioned in that paragraph.
(5) If:
(a) a carrier installs a low - impact facility under Division 3; and
(b) the installation is covered by paragraph 6(5)(g);
the carrier must remove the facility within 28 days after the facility ceases to be needed to provide capacity to supply carriage services to one or more emergency services organisations (within the meaning of that paragraph) so that those organisations can deal with an emergency or natural disaster.
(6) If:
(a) a carrier installs a facility under Division 4; and
(b) the installation is covered by subclause 7(3A);
the carrier must remove the facility within 28 days after the completion of the maintenance mentioned in paragraph 7(3A)(a).
(7) For the purposes of this clause, low - impact facility has the same meaning as in clause 6.
8B Low - impact facility installed at or near a venue--annual limit
(1) If:
(a) a carrier installs one or more low - impact facilities at a particular place under Division 3; and
(b) those installations are covered by paragraph 6(5)(d) or (e);
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.
(2) For the purposes of this clause, low - impact facilities has the same meaning as in clause 6.
(1) If:
(a) a carrier installs one or more low - impact facilities at a particular place under Division 3; and
(b) the installation is covered by paragraph 6(5)(f);
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 90.
(2) For the purposes of this clause, low - impact facilities has the same meaning as in clause 6.
9 Carrier to restore land--general
(1) 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.
(2) The carrier must take all reasonable steps to ensure that the restoration begins within 10 business days after the completion of the first - mentioned activity.
(3) The rule in subclause (2) does not apply if the carrier agrees with:
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner--the occupier;
to commence restoration at a time after the end of that period of 10 business days.
9A Carrier to restore land--removal of temporary facilities
(1) If:
(a) a carrier installs a low - impact facility under Division 3 on particular land; and
(b) the installation of the facility is covered by paragraph 6(5)(b), (c), (d), (e), (f) or (g); and
(c) the carrier removes 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.
(2) If:
(a) a carrier installs a facility under Division 4 on particular land; and
(b) the installation of the facility is covered by subclause 7(3A); and
(c) the carrier removes 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.
(3) If the installation of the facility is covered by paragraph 6(5)(b), (c), (d), (e), (f) or (g), the carrier must take all reasonable steps to ensure that the restoration begins within 10 business days after the removal of the facility.
(4) If the installation of the facility is covered by subclause 7(3A), the carrier must take all reasonable steps to ensure that the restoration begins within 10 business days after the removal of the facility.
(5) The rule in subclause (3) or (4) does not apply if the carrier agrees with:
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner--the occupier;
to commence restoration at a time after the end of that period of 10 business days.
(6) For the purposes of this clause, low - impact facility has the same meaning as in clause 6.
A carrier must, in connection with carrying out an activity covered by Division 2, 3 or 4, take all reasonable steps:
(a) to act in accordance with good engineering practice; and
(b) to protect the safety of persons and property; and
(c) to ensure that the activity interferes as little as practicable with:
(i) the operations of a public utility; and
(ii) public roads and paths; and
(iii) the movement of traffic; and
(iv) the use of land; and
(d) to protect the environment.
11 Agreements with public utilities
(1) A carrier must make reasonable efforts to enter into an agreement with a public utility that makes provision for the manner in which the carrier will engage in an activity that is:
(a) covered by Division 2, 3 or 4; and
(b) likely to affect the operations of the utility.
(2) A carrier must comply with an agreement in force under subclause (1).
12 Compliance with industry standards
If a carrier engages in an activity covered by Division 2, 3 or 4, the carrier must do so in accordance with any standard that:
(a) relates to the activity; and
(b) is recognised by the ACMA as a standard for use in that industry; and
(c) is likely to reduce a risk to the safety of the public if the carrier complies with the standard.
13 Compliance with international agreements
If a carrier engages in an activity covered by Division 2, 3 or 4, the carrier must do so in a manner that is consistent with Australia's obligations under a listed international agreement that is relevant to the activity.
14 Conditions specified in the regulations
If a carrier engages, or proposes to engage, in an activity covered by Division 2, 3 or 4, the carrier must comply with any conditions that are specified in the regulations.
15 Conditions specified in a Ministerial Code of Practice
(1) The Minister may, by legislative instrument, make a Code of Practice setting out conditions that are to be complied with by carriers in relation to any or all of the activities covered by Division 2, 3 or 4 (other than activities covered by a facility installation permit) or by Part 3 of Schedule 3A.
(2) A carrier must comply with the Code of Practice.
(3) The following are examples of conditions that may be set out in the Code of Practice:
(a) a condition requiring carriers to undertake assessments, or further assessments, of the environmental impact of the activity concerned;
(b) a condition requiring carriers to consult a particular person or body in relation to the activity concerned;
(c) a condition requiring carriers to obtain the approval of a particular person or body in relation to the activity concerned.
(4) This clause does not, by implication, limit a power conferred by or under this Act to make an instrument.
(5) This clause does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.
(6) Subclauses (4) and (5) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901 .
16 Conditions to which a facility installation permit is subject
If:
(a) a carrier engages, or proposes to engage, in an activity covered by Division 3; and
(b) that activity is or will be authorised by a facility installation permit; and
(c) the facility installation permit is subject to one or more conditions;
the carrier must comply with those conditions.
17 Notice to owner of land--general
(1) Before engaging in an activity under Division 2, 3 or 4 in relation to any land, a carrier must give written notice of its intention to do so to:
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner--the occupier.
(2) The notice must specify the purpose for which the carrier intends to engage in the activity.
(3) The notice under subclause (1) must contain a statement to the effect that, if a person suffers financial loss or damage in relation to property because of anything done by a carrier in engaging in the activity, compensation may be payable under clause 42.
(4) The notice must be given at least 10 business days before the carrier begins to engage in the activity.
(4A) Despite subclause (4), the notice need be given only 2 business days before the carrier begins to engage in an activity authorised by Division 2 (which deals with inspection) that:
(a) is not inconsistent with Australia's obligations under a listed international agreement; and
(b) could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and
(c) will not have an adverse effect on a streetscape or other landscape; and
(d) will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.
(5) A person may waive the person's right to be given a notice under subclause (1).
(6) Subclause (1) does not apply if:
(a) the carrier intends to engage in activities under Division 2 (which deals with inspection of land), 3 (which deals with installation of facilities) or 4 (which deals with maintenance); and
(b) those activities need to be carried out without delay in order to protect:
(i) the integrity of a telecommunications network or a facility; or
(ii) the health or safety of persons; or
(iii) the environment; or
(iv) property; or
(v) the maintenance of an adequate level of service.
(6A) Subclause (1) does not apply if:
(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and
(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.
(6B) For the purposes of this clause, a temporary defence facility is a facility of the kind that is mentioned in paragraph 6(1)(c) of this Schedule.
(7) Subclause (1) does not apply if the carrier intends to engage in an activity under Division 2 (which deals with inspection) in relation to land that is a public place and the activity:
(a) is not inconsistent with Australia's obligations under a listed international agreement; and
(b) could not have an effect described in one or more of subparagraphs 27(7)(a)(ii) to (xii) (inclusive) of this Schedule; and
(c) will not have an adverse effect on a streetscape or other landscape; and
(d) will not have an impact on a place, area or thing described in paragraph 27(7)(c) or (d) of this Schedule.
(8) Subclause (1) does not apply if:
(a) the carrier intends to install a low - impact facility under Division 3; and
(b) the installation of the facility is covered by paragraph 6(5)(g).
(9) For the purposes of this clause, low - impact facility has the same meaning as in clause 6.
18 Notice to owner of land--lopping of trees etc.
(1) At least 10 business days before engaging in any of the following activities under Division 2, 3 or 4:
(a) cutting down or lopping a tree on private land;
(b) clearing or removing undergrowth or vegetation on private land;
a carrier must give:
(c) the owner of the land; and
(d) if the land is occupied by a person other than the owner--the occupier;
a written notice requesting that the tree be cut down or lopped, or that the undergrowth or vegetation be cleared, as the case may be, in the manner, and within the period, specified in the notice.
(2) The carrier may only engage in those activities if the request is not complied with.
(3) A person may waive the person's right to be given a notice under subclause (1).
(3A) Subclauses (1) and (2) do not apply if:
(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and
(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.
(3B) For the purposes of this clause, a temporary defence facility is a facility of the kind mentioned in paragraph 6(1)(c) of this Schedule.
(4) Subclauses (1) and (2) do not apply if:
(a) the carrier intends to engage in activities under Division 2 (which deals with inspection of land), 3 (which deals with installation of facilities) or 4 (which deals with maintenance); and
(b) those activities need to be carried out without delay in order to protect:
(i) the integrity of a telecommunications network or a facility; or
(ii) the health or safety of persons; or
(iii) the environment; or
(iv) property; or
(v) the maintenance of an adequate level of service.
19 Notice to roads authorities, utilities etc.
(1) At least 10 business days before engaging in any of the following activities under Division 3 or 4:
(a) closing, diverting or narrowing a road or bridge;
(b) installing a facility on, over or under a road or bridge;
(c) altering the position of a water, sewerage or gas main or pipe;
(d) altering the position of an electricity cable or wire;
a carrier must give written notice of its intention to do so to the person or authority responsible for the care and management of the road, bridge, main, pipe, cable or wire.
(2) A person or authority may waive the person's or authority's right to be given a notice under subclause (1).
(2A) Subclause (1) does not apply if:
(a) the carrier intends to engage in an activity under Division 2, 3 or 4 in relation to the installation, proposed installation or maintenance of a temporary defence facility; and
(b) the carrier considers that compliance with subclause (1) is impracticable in the circumstances.
(2B) For the purposes of this clause, a temporary defence facility is a facility of the kind mentioned in paragraph 6(1)(c) of this Schedule.
(3) Subclause (1) does not apply if:
(a) the carrier intends to engage in activities under Division 2 (which deals with inspection of land), 3 (which deals with installation of facilities) or 4 (which deals with maintenance); and
(b) those activities need to be carried out without delay in order to protect:
(i) the integrity of a telecommunications network or a facility; or
(ii) the health or safety of persons; or
(iii) the environment; or
(iv) property; or
(v) the maintenance of an adequate level of service.
20 Roads etc. to remain open for passage
If a carrier engages in an activity covered by Division 3, the carrier must ensure that a facility installed over a road, bridge, path or navigable water is installed in a way that will allow reasonable passage by persons, vehicles and vessels.
Division 6 -- Facility installation permits
21 Application for facility installation permit
(1) A carrier may apply to the ACMA for a permit authorising the carrier to carry out the installation of one or more facilities.
(2) The permit is called a facility installation permit .
An application must be:
(a) in writing; and
(b) in accordance with the form approved in writing by the ACMA.
23 Application to be accompanied by charge
An application for a facility installation permit must be accompanied by the charge (if any) fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005 in relation to so much of the ACMA's expenses in connection with dealing with the application as do not relate to the conduct of a public inquiry in relation to the permit.
This Division does not prevent the withdrawal of an application and the submission of a fresh application.
25 Issue of facility installation permit
(1) After considering the application, the ACMA may issue a facility installation permit authorising the applicant to carry out the installation of any or all of the facilities specified in the application.
(2) The ACMA must not issue a facility installation permit unless the ACMA has held a public inquiry in relation to the permit.
(3) The ACMA may decide to refuse to issue a facility installation permit without holding a public inquiry in relation to the permit.
Note: An example of the operation of this subclause would be a case where the application does not disclose grounds on which the ACMA could issue the permit.
(4) If the ACMA decides to refuse to issue a facility installation permit, it must give the applicant a written notice setting out the decision.
(5) Clause 23 does not prevent a charge from being fixed by a determination under section 60 of the Australian Communications and Media Authority Act 2005 in relation to the holding of a public inquiry in relation to a permit.
26 Deemed refusal of facility installation permit
(1) If:
(a) the ACMA receives an application for a facility installation permit; and
(b) 10 business days pass and the ACMA has neither:
(i) notified the applicant in writing that the ACMA has decided to refuse to issue the permit; nor
(ii) notified the applicant in writing that the ACMA has decided to hold a public inquiry in relation to the permit;
the ACMA is taken, at the end of that period of 10 business days, to have decided to refuse to issue the permit.
(2) If:
(a) the ACMA receives an application for a facility installation permit; and
(b) 65 business days pass and the ACMA has neither:
(i) notified the applicant in writing that the ACMA has decided to refuse to issue the permit; nor
(ii) notified the applicant in writing that the ACMA has decided to issue the permit;
the ACMA is taken, at the end of that period of 65 business days, to have decided to refuse to issue the permit.
(3) The ACMA may, by written instrument, determine that subclause (2) has effect, in relation to a specified application for a facility installation permit, as if a reference in that subclause to 65 business days were a reference to such greater number of business days, not exceeding 85 business days, as is specified in the determination. The determination has effect accordingly.
(4) In determining the validity of any action taken by the ACMA under Part 25 in relation to the holding of a public inquiry in relation to in a permit, regard must be had to the ACMA's need to act with sufficient speed to meet the time limit imposed by subclause (2).
27 Criteria for issue of facility installation permit
Criteria
(1) The ACMA must not issue a facility installation permit that authorises a carrier to carry out the installation of one or more facilities unless the ACMA is satisfied that:
(a) the telecommunications network to which the facilities relate is, or is likely to be, of national significance; and
(b) the facilities are, or are likely to be, an important part of the telecommunications network to which the facilities relate; and
(c) any of the following conditions is satisfied:
(i) the greater part of the infrastructure of the telecommunications network to which the facilities relate has already been installed;
(ii) the greater part of the infrastructure of the telecommunications network to which the facilities relate has not been installed but each administrative authority whose approval was required or would, apart from Division 3, be required, for the installation of the greater part of the infrastructure of the network has given, or is reasonably likely to give, such approval;
(iii) no part of the infrastructure of the telecommunications network to which the facilities relate has been installed, but each administrative authority whose approval was required or would, apart from Division 3, be required, for the installation of the greater part of the infrastructure of the network has given, or is reasonably likely to give, such an approval; and
(d) the advantages that are likely to be derived from the operation of the facilities in the context of the telecommunications network to which the facilities relate outweigh any form of degradation of the environment that is likely to result from the installation of the facilities; and
(e) in a case where none of the facilities consists of a designated overhead line--the conditions set out in subclause (2) are satisfied; and
(f) in a case where any of the facilities consists of a designated overhead line--all the conditions set out in subclause (2A) are satisfied; and
(g) where the facility is proposed to be located near a community sensitive site, including residential areas, childcare centres, schools, aged care centres, hospitals, playgrounds and regional icons:
(i) the community has been fully consulted, and wherever possible, has agreed to the facility; and
(ii) alternative less sensitive sites have been considered; and
(iv) efforts have been made to minimise electromagnetic radiation exposure to the public.
Conditions relating to facilities other than designated overhead lines
(2) For the purposes of paragraph (1)(e), the following conditions are specified:
(a) the carrier has made reasonable efforts to negotiate in good faith with:
(i) each proprietor whose approval is required, or would, apart from Division 3, be required, for carrying out the installation; and
(ii) each administrative authority whose approval is required, or would, apart from Division 3, be required, for carrying out the installation; and
(b) one of the following subparagraphs applies:
(i) at least one approval that is referred to in subparagraph (a)(i) has not been obtained within 20 business days after the beginning of the negotiations concerned;
(ii) at least one approval that is referred to in subparagraph (a)(ii) has not been obtained within 6 months after the beginning of the negotiations concerned;
(iii) at least one approval that is referred to in paragraph (a) has been refused.
Conditions relating to facilities consisting of designated overhead lines
(2A) For the purposes of paragraph (1)(f), the following conditions are specified:
(a) the carrier has made reasonable efforts to negotiate in good faith with each proprietor whose approval is required, or would, apart from Division 3, be required, for carrying out the installation; and
(b) at least one of those approvals has not been obtained within 20 business days after the beginning of the negotiations concerned; and
(c) each administrative authority whose approval is required, or would, apart from Division 3, be required, for the installation of the line has given such an approval.
Networks of national significance
(3) In determining the matter set out in paragraph (1)(a), the ACMA must have regard to the following:
(a) the geographical reach of the network;
(b) the number of customers connected, or likely to be connected, to the network;
(c) the importance of the network to the national economy;
(d) such other matters (if any) as the ACMA considers relevant.
When facilities are an important part of a network
(4) In determining the matter set out in paragraph (1)(b), the ACMA must have regard to at least one of the following:
(a) the technical importance of the facilities in the context of the telecommunications network to which the facilities relate;
(b) the economic importance of the facilities in the context of the telecommunications network to which the facilities relate;
(c) the social importance of the facilities in the context of the telecommunications network to which the facilities relate.
When advantages of facilities outweigh degradation of the environment
(5) In determining the matter set out in paragraph (1)(d), the ACMA must have regard to the following:
(a) the extent to which the installation of the facilities is likely to promote the long - term interests of end - users of carriage services or of services supplied by means of carriage services;
(b) the impact of the installation, maintenance or operation of the facilities on the environment;
(c) the objective of facilitating the timely supply of efficient, modern and cost - effective carriage services to the public;
(d) any relevant technical and/or economic aspects of the installation, maintenance or operation of the facilities in the context of the telecommunications network to which the facilities relate;
(e) whether the installation of the facilities contributes to:
(i) the fulfilment by the applicant of the universal service obligation; or
(ii) the compliance by the applicant with the obligations under a contract entered into under section 14 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 for a purpose relating to the achievement of a policy objective set out in paragraph 13(1)(a) or (b) of that Act; or
(iii) the compliance by the applicant with the terms and conditions of a grant made under section 14 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 for a purpose relating to the achievement of a policy objective set out in paragraph 13(1)(a) or (b) of that Act;
(f) whether the installation of the facilities involves co - location with one or more other facilities;
(g) whether the installation of the facilities facilitates co - location, or future co - location, with one or more other facilities;
(h) such other matters (if any) as the ACMA considers relevant.
Long - term interests of end - users
(6) For the purposes of this clause, the question whether a particular thing promotes the long - term interests of end - users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as that question is determined for the purposes of Part XIC of the Competition and Consumer Act 2010 .
Environmental impact
(7) In determining the matter set out in paragraph (5)(b), the ACMA must have regard to the following:
(a) whether the installation, maintenance or operation of the facilities:
(i) is inconsistent with Australia's obligations under a listed international agreement; or
(ii) could threaten with extinction, or significantly impede the recovery of, a threatened species; or
(iii) could put a species of flora or fauna at risk of becoming a threatened species; or
(iv) could have an adverse effect on a threatened species of flora or fauna; or
(v) could damage the whole or a part of a habitat of a threatened species of flora or fauna; or
(vi) could damage the whole or a part of a place, or an ecological community, that is essential to the continuing existence of a threatened species of flora or fauna; or
(vii) could threaten with extinction, or significantly impede the recovery of, a threatened ecological community; or
(viii) could have an adverse effect on a threatened ecological community; or
(ix) could damage the whole or a part of the habitat of a threatened ecological community; or
(x) could have an adverse effect on a listed migratory species (as defined in the Environment Protection and Biodiversity Conservation Act 1999 ); or
(xi) will have or is likely to have a significant impact on the environment in a Commonwealth marine area (as defined in the Environment Protection and Biodiversity Conservation Act 1999 ); or
(xii) will have or is likely to have a significant impact on the environment on Commonwealth land (as defined in the Environment Protection and Biodiversity Conservation Act 1999 );
(b) the visual effect of the facilities on streetscapes and other landscapes;
(c) whether the facilities are to be installed at any of the following places:
(i) a declared World Heritage property (as defined in the Environment Protection and Biodiversity Conservation Act 1999 );
(ia) a declared Ramsar wetland (as defined in the Environment Protection and Biodiversity Conservation Act 1999 );
(ii) a place that Australia is required to protect by the terms of a listed international agreement;
(iii) an area that, under a law of the Commonwealth, a State or a Territory, is reserved wholly or principally for nature conservation purposes (however described);
(iv) an area that, under a law of the Commonwealth, a State or a Territory, is protected from significant environmental disturbance;
(d) whether the facilities are to be installed at or near an area or thing that is:
(i) included in the National Heritage List or Commonwealth Heritage List, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 ; or
(iii) registered under a law of a State or Territory relating to heritage conservation; or
(iv) of particular significance to Aboriginal persons, or Torres Strait Islanders, in accordance with their traditions;
(e) such other matters (if any) as the ACMA considers relevant.
Deemed approvals by administrative authorities
(8) The ACMA may, by written instrument, determine that this clause has the effect it would have if it were assumed that a specified administrative authority had given a specified approval for the installation of one or more specified facilities. The determination has effect accordingly.
Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901 .
(9) In this clause:
"administrative authority" means:
(a) the holder of an office; or
(b) an authority of a State or a Territory; or
(c) a local government body;
performing administrative functions under a law of a State or a Territory.
"approval" means an approval or permission (however described).
"negotiations" includes:
(a) the submission of an application for approval; and
(b) pursuing an application for approval.
"proprietor" means an owner or occupier of land.
"review" , in relation to a refusal to give an approval, means a review on the merits (in other words, a review that is not based on the grounds that the refusal is contrary to law).
"telecommunications network" includes a proposed telecommunications network.
28 Special provisions relating to environmental matters
(1) Chapters 2 and 4 and Divisions 1 to 4 (inclusive) of Part 13 of the Environment Protection and Biodiversity Conservation Act 1999 do not apply to:
(a) the performance of a function, or the exercise of a power, conferred on the ACMA by this Division; or
(b) an action (as defined in that Act) authorised by a facility installation permit.
(2) Before issuing a facility installation permit, the ACMA must consult the Environment Secretary.
(5) In this clause:
"this Division" includes:
(a) Part 25, to the extent that that Part relates to the holding of a public inquiry in relation to a permit; and
(b) Part 29, to the extent that that Part relates to this Division.
Before making a decision to issue, or to refuse to issue, a facility installation permit, the ACMA must consult the ACCC.
30 Facility installation permit has effect subject to this Act
(1) A facility installation permit has effect subject to this Act.
(2) In this clause:
"this Act" includes the Telecommunications (Consumer Protection and Service Standards) Act 1999 and regulations under that Act.
31 Duration of facility installation permit
(1) A facility installation permit comes into force when it is issued and remains in force until the end of the period specified in the permit.
(2) However, the ACMA may, by written notice given to the holder of a facility installation permit, extend the period specified in the permit if the ACMA is satisfied that the extension is warranted because of special circumstances.
32 Conditions of facility installation permit
(1) A facility installation permit is subject to such conditions as are specified in the permit.
(2) A condition of a facility installation permit may restrict, limit or prevent the carrying out of, an activity under Division 3. This subclause does not, by implication, limit subclause (1).
(3) The following are examples of conditions to which a facility installation permit may be subject:
(a) a condition requiring the holder to undertake an assessment, or a further assessment, of the environmental impact of the installation of the facility concerned;
(b) a condition requiring the holder to consult a particular person or body in relation to the installation of the facility concerned;
(c) a condition requiring the holder to obtain the approval of a particular person or body in relation to the installation of the facility concerned.
33 Surrender of facility installation permit
The holder of a facility installation permit may, at any time, surrender the permit by written notice given to the ACMA.
34 Cancellation of facility installation permit
(1) The ACMA may, by written notice given to the holder of a facility installation permit, cancel the permit.
(2) In deciding whether to cancel the permit, the ACMA may have regard to:
(a) any contravention of Division 5; and
(b) any matter which the ACMA was entitled to have regard in deciding whether to issue a permit.
(3) Subclause (2) does not, by implication, limit the matters to which the ACMA may have regard.
35 Review of decisions by Administrative Appeals Tribunal
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the ACMA under clause 25 or 26 to refuse to issue a facility installation permit if the ACMA has not held a public inquiry in relation to the permit.
(2) If the ACMA:
(a) makes a decision of a kind covered by subclause (1); and
(b) gives to the person or persons whose interests are affected by the decision written notice of the making of the decision;
that notice is to include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Administrative Appeals Tribunal for review of the decision.
(3) A failure to comply with subclause (2) does not affect the validity of a decision.
(4) In this clause:
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975 .
Division 7 -- Exemptions from State and Territory laws
36 Activities not generally exempt from State and Territory laws
(1) Divisions 2, 3 and 4 do not operate so as to authorise an activity to the extent that the carrying out of the activity would be inconsistent with the provisions of a law of a State or Territory.
(2) The rule set out in subclause (1) has effect subject to any exemptions that are applicable under clause 37.
37 Exemption from State and Territory laws
(1) This clause applies to an activity carried on by a carrier if the activity is authorised by Division 2, 3 or 4.
(2) The carrier may engage in the activity despite a law of a State or Territory about:
(a) the assessment of the environmental effects of engaging in the activity; or
(b) the protection of places or items of significance to Australia's natural or cultural heritage; or
(c) town planning; or
(d) the planning, design, siting, construction, alteration or removal of a structure; or
(e) the powers and functions of a local government body; or
(f) the use of land; or
(g) tenancy; or
(h) the supply of fuel or power, including the supply and distribution of extra - low voltage power systems; or
(i) a matter specified in the regulations.
(3) Paragraph (2)(b) does not apply to a law in so far as the law provides for the protection of places or items of significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders.
(4) Paragraph (2)(h) does not apply to a law in so far as the law deals with the supply of electricity at a voltage that exceeds that used for ordinary commercial or domestic requirements.
38 Concurrent operation of State and Territory laws
It is the intention of the Parliament that, if clause 37 entitles a carrier to engage in activities despite particular laws of a State or Territory, nothing in this Division is to affect the operation of any other law of a State or Territory, so far as that other law is capable of operating concurrently with this Act.
39 Liability to taxation not affected
This Division does not affect the liability of a carrier to taxation under a law of a State or Territory.
(1) In performing a function, or exercising a power, conferred on the ACMA by this Part, the ACMA must have regard to:
(a) any guidelines in force under subclause (2); and
(b) such other matters as the ACMA considers relevant.
(2) The ACMA may, by written instrument, formulate guidelines for the purposes of subclause (1).
(1) If a person suffers financial loss or damage because of anything done by a carrier under Division 2, 3 or 4 in relation to:
(a) any property owned by the person; or
(b) any property in which the person has an interest;
there is payable to the person by the carrier such reasonable amount of compensation:
(c) as is agreed between them; or
(d) failing agreement--as is determined by a court of competent jurisdiction.
(2) Compensation payable under subclause (1) includes, without limitation, compensation in relation to:
(a) damage of a temporary character as well as of a permanent character; and
(b) the taking of sand, soil, stone, gravel, timber, water and other things.
(3) In this clause:
"court of competent jurisdiction" , in relation to property, means:
(a) the Federal Court; or
(b) the Supreme Court of the State or Territory in which the property is situated or was situated at the time of the relevant loss or damage; or
(c) an inferior court that has jurisdiction:
(i) for the recovery of debts up to an amount not less than the amount of compensation claimed by the person; and
(ii) in relation to the locality in which the property, or part of the property, is situated or was situated at the time of the relevant loss or damage.
"inferior court" means:
(a) a County Court, District Court or local Court of a State or Territory; or
(b) a court of summary jurisdiction exercising civil jurisdiction.
43 Power extends to carrier's employees etc.
If, under a provision of Division 2, 3 or 4, a carrier is empowered to:
(a) enter on land; or
(b) inspect land; or
(c) occupy land; or
(d) do anything else on, over or under land;
the provision also empowers:
(e) an employee of the carrier; or
(f) a person acting for the carrier under a contract; or
(g) an employee of a person referred to in paragraph (f);
to do that thing.
44 State and Territory laws that discriminate against carriers and users of carriage services
(1) The following provisions have effect:
(a) a law of a State or Territory has no effect to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally;
(b) without limiting paragraph (a), a person is not entitled to a right, privilege, immunity or benefit, and must not exercise a power, under a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally;
(c) without limiting paragraph (a), a person is not required to comply with a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular carrier, against a particular class of carriers, or against carriers generally.
(2) The following provisions have effect:
(a) a law of a State or Territory has no effect to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular eligible user, against a particular class of eligible users, or against eligible users generally;
(b) without limiting paragraph (a), a person is not entitled to a right, privilege, immunity or benefit, and must not exercise a power, under a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular eligible user, against a particular class of eligible users, or against eligible users generally;
(c) without limiting paragraph (a), a person is not required to comply with a law of a State or Territory to the extent to which the law discriminates, or would have the effect (whether direct or indirect) of discriminating, against a particular eligible user, against a particular class of eligible users, or against eligible users generally.
(3) For the purposes of this clause, if a carriage service is, or is proposed to be, supplied to a person by means of a controlled network, or a controlled facility, of a carrier, the person is an eligible user .
(4) The Minister may, by legislative instrument, exempt a specified law of a State or Territory from subclause (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .
(5) The Minister may, by legislative instrument, exempt a specified law of a State or Territory from subclause (2).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .
(6) An exemption under subclause (4) or (5) may be unconditional or subject to such conditions (if any) as are specified in the exemption.
Note: The following are examples of a law of a State or Territory:
(a) a provision of a State or Territory Act;
(b) a provision of a legislative instrument made under a State or Territory Act.
45 State and Territory laws may confer powers and immunities on carriers
It is the intention of the Parliament that this Part is not to be construed as preventing a law of a State or Territory from conferring powers or immunities on carriers, so long as that law is capable of operating concurrently with this Act.
46 ACMA may limit tort liability in relation to the supply of certain carriage services
(1) The ACMA may, by legislative instrument, impose limits on amounts recoverable in tort in relation to acts done, or omissions made, in relation to the supply of specified carriage services.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003 .
(2) An instrument under subclause (1) has effect accordingly.
(3) A limit imposed by an instrument under subclause (1) may be expressed to apply in relation to:
(a) the total of the amounts that can be recovered in relation to a single event; or
(b) the total of the amounts that can be recovered by a particular plaintiff in relation to a single event.
(4) An instrument under subclause (1) may impose a limit expressed as:
(a) a dollar amount; or
(b) a method of calculating an amount.
(5) Subclauses (3) and (4) do not, by implication, limit subclause (1).
(6) This clause does not apply to a cause of action under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with the customer service guarantee).
(7) This clause does not apply to a cause of action under clause 42 (which deals with compensation for loss or damage resulting from a carrier's activities under Division 2, 3 or 4).
Unless the circumstances indicate otherwise, a facility, or a part of a facility, that is supplied, installed, maintained or operated by a carrier remains the property of its owner:
(a) in any case--whether or not it has become (either in whole or in part), a fixture; and
(b) in the case of a network unit--whether or not a nominated carrier declaration is in force in relation to the network unit.
(1) The ACMA may inform members of the public about the kinds and location of:
(a) designated overhead lines; and
(b) telecommunications transmission towers; and
(c) underground facilities.
(2) In performing the function conferred on the ACMA by subclause (1), the ACMA must have regard to the following matters:
(a) if:
(i) the ACMA is satisfied that a body or association represents carriers; and
(ii) the body or association has given the ACMA a written statement setting out the body's or association's views about how the ACMA should perform that function;
the views set out in the statement;
(b) the legitimate business interests of carriers;
(c) the objective of safeguarding national security;
(d) the privacy of end - users of carriage services supplied by means of the lines, towers or facilities concerned.
(3) Subclause (2) does not, by implication, limit the matters to which the ACMA may have regard.
(4) Clauses 40 and 41 do not apply to the function conferred on the ACMA by subclause (1).
(5) In this clause:
"telecommunications transmission tower" means:
(a) a tower; or
(b) a pole; or
(c) a mast; or
(d) a similar structure;
used to supply a carriage service by means of radiocommunications.
50 Monitoring of progress in relation to placing facilities underground
The ACMA is to monitor, and report to the Minister on, progress in relation to the implementation of efforts to place facilities underground.
51 Removal of certain overhead lines
(1) If:
(a) an overhead line (the eligible overhead line ) is attached to a pole (the first pole ); and
(b) the eligible overhead line, or a portion of the eligible overhead line, is suspended between the first pole and another pole (the second pole ); and
(c) the installation of the eligible overhead line was or is authorised by:
(i) this Act; or
(ii) section 116 of the Telecommunications Act 1991 ; or
(iii) Division 3 of Part 7 of the Telecommunications Act 1991 ; or
(iv) a repealed law of the Commonwealth; and
(d) there is also attached to the first pole one or more other overhead cables, where at least one of the other overhead cables is a non - communications cable; and
(e) each of the non - communications cables is permanently removed (either simultaneously or over a period) and is not replaced;
the owner of the eligible overhead line must, within 6 months after the completion of the last of the removals referred to in paragraph (e), permanently remove so much of the eligible overhead line as is suspended between the first pole and the second pole.
(2) If:
(a) there is a local government body for the area in which the first pole is situated; and
(b) there is no prescribed administrative authority for the State or Territory in which the first pole is situated;
the local government body may, by writing:
(c) exempt the owner of the eligible overhead line from compliance with subclause (1) in relation to the first pole; or
(d) extend the period of 6 months mentioned in subclause (1) for the purposes of the application of subclause (1) to the owner of the eligible overhead line and to the first pole.
(3) If there is a prescribed administrative authority for the State or Territory in which the first pole is situated, the prescribed administrative authority may, by writing:
(a) exempt the owner of the eligible overhead line from compliance with subclause (1) in relation to the first pole; or
(b) extend the period of 6 months mentioned in subclause (1) for the purposes of the application of subclause (1) to the owner of the eligible overhead line and to the first pole.
(4) If:
(a) there is no local government body for the area in which the first pole is situated; and
(b) there is no prescribed administrative authority for the State or Territory in which the first pole is situated;
the regulations may make provision for and in relation to:
(c) the exemption of the owner of the eligible overhead line from compliance with subclause (1) in relation to the first pole; and
(d) the extension of the period of 6 months mentioned in subclause (1) for the purposes of the application of subclause (1) to the owner of the eligible overhead line and to the first pole.
(5) Regulations made for the purposes of subclause (4) may make provision with respect to a matter by conferring a power on the ACMA.
(6) This clause does not prevent 2 or more instruments under subclause (2) or (3) from being combined in the same document.
(7) In this clause:
"administrative authority" means:
(a) the holder of an office; or
(b) an authority of a State or a Territory;
that performs administrative functions under a law of a State or a Territory.
"line" includes a disused line.
"non-communications cable" means an overhead cable (other than a line).
"overhead cable" means a wire or cable that is suspended above the surface of:
(a) land (other than submerged land); or
(b) a river, lake, tidal inlet, bay, estuary, harbour or other body of water.
"overhead line" means a line that is suspended above the surface of:
(a) land (other than submerged land); or
(b) a river, lake, tidal inlet, bay, estuary, harbour or other body of water.
"prescribed administrative authority" , in relation to a State or a Territory, means an administrative authority that:
(a) performs administrative functions under a law of the State or the Territory; and
(b) is specified in the regulations.
52 Commonwealth laws not displaced
Divisions 2, 3 and 4 do not authorise a carrier to engage in an activity contrary to the requirements of another law of the Commonwealth.
53 Subdivider to pay for necessary alterations
If:
(a) it becomes necessary, in the opinion of a carrier, because of the subdivision of any land, to remove, or alter the position of, a facility on, over or under the land; and
(b) the carrier incurs costs in connection with anything reasonably done in connection with the removal or alteration;
the person who subdivided the land is liable to pay to the carrier so much of those costs as is reasonable, and that amount may be recovered in a court of competent jurisdiction as a debt due to the carrier.
(1) If:
(a) a carrier is unable, after diligent inquiry, to find out who owns particular land; or
(b) a carrier is unable to serve a notice under this Part on the owner of land either personally or by post;
the carrier may serve a notice under this Part on the owner of the land by publishing a copy of the notice in a newspaper circulating in a district in which the land is situated and:
(c) if the land is occupied--serving a copy of the notice on the occupier; or
(d) if the land is not occupied--attaching, if practicable, a copy of the notice to a conspicuous part of the land.
(2) If a carrier is unable, after diligent inquiry, to find out:
(a) whether particular land is occupied; or
(b) who occupies particular land;
the carrier may treat the land as unoccupied land.
(3) If a carrier is unable to serve a notice under this Part on the occupier of land either personally or by post, the carrier may serve a notice under this Part on the occupier by:
(a) publishing a copy of the notice in a newspaper circulating in a district in which the land is situated; and
(b) attaching, if practicable, a copy of the notice to a conspicuous part of the land.
(4) This clause does not affect the operation of any other law of the Commonwealth, or of any law of a State or Territory, that authorises the service of a document otherwise than as provided in this clause.
Part 2 -- Transitional provisions
60 Existing buildings, structures and facilities--application of State and Territory laws
A law of a State or Territory that relates to:
(a) the standards applicable to:
(i) the design; or
(ii) the manner of the construction;
of a building, structure or facility; or
(b) the approval of the construction of a building, structure or facility; or
(c) the occupancy, or use, of a building, structure or facility; or
(d) the alteration or demolition of a building, structure or facility;
does not apply to a building, structure or facility that is owned or operated by a carrier to the extent that the construction, alteration or demolition of the building, structure or facility was or is authorised by:
(e) section 116 of the Telecommunications Act 1991 ; or
(f) Division 3 of Part 7 of the Telecommunications Act 1991 ; or
(g) a repealed law of the Commonwealth.
61 Existing buildings, structures and facilities--application of the common law
A rule of the common law that relates to trespass does not apply to the continued existence of a building, structure or facility that is owned or operated by a carrier to the extent that the construction or alteration of the building, structure or facility was or is authorised by:
(a) section 116 of the Telecommunications Act 1991 ; or
(b) Division 3 of Part 7 of the Telecommunications Act 1991 ; or
(c) a repealed law of the Commonwealth.
Part 3 -- Compensation for acquisition of property
62 Compensation for acquisition of property
(1) If:
(a) either of the following would result in an acquisition of property from a person:
(i) anything done by a carrier under, or because of, this Schedule;
(ii) the existence of rights conferred on a carrier under, or because of, this Schedule in relation to a building, structure or facility owned or operated by the carrier; and
(b) the acquisition of property would not be valid, apart from this clause, because a particular person had not been compensated;
the carrier must pay that person:
(c) a reasonable amount of compensation agreed on between the person and the carrier; or
(d) failing agreement--a reasonable amount of compensation determined by a court of competent jurisdiction.
(2) In assessing compensation payable under this clause arising out of an event, the following must be taken into account:
(a) any compensation obtained by the person as a result of an agreement between the person and the carrier otherwise than under this clause but arising out of the same event;
(b) any damages or compensation recovered by the person from the carrier, or other remedy given, in a proceeding begun otherwise than under this clause but arising out of the same event.
(3) This clause does not limit the operation of clause 42.
(4) In this clause:
"acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.
This Part applies in relation to:
(a) anything done by a carrier under, or because of, this Schedule after the commencement of Schedule 2 to the Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005 ; and
(b) the existence of rights:
(i) in relation to a building, structure or facility owned or operated by a carrier; and
(ii) that are conferred on a carrier under, or because of,
this Schedule on or after the commencement of Schedule 2 to the
Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005
.