TELECOMMUNICATIONS ACT 1997 - SCHEDULE 3A Protection of submarine cables
TELECOMMUNICATIONS ACT 1997 - SCHEDULE 3A
Protection of submarine cablesNote: See section 484A.
The following is a simplified outline of this Schedule:
• This Schedule regulates the installation of certain submarine cables that are connected to places in Australia.
• The ACMA may declare protection zones in relation to submarine cables. In a protection zone, certain activities are prohibited and restrictions may be imposed on other activities.
• Carriers who intend to install certain submarine cables in certain Australian waters must apply for a permit to do so from the ACMA.
(1) In this Schedule, unless the contrary intention appears:
"Aboriginal person" means a person of the Aboriginal race of Australia.
"Attorney-General's Department" means the Department administered by the Attorney - General.
"Australia" , when used in a geographical sense, includes all of the external Territories.
Note: Australia has a different meaning in this Schedule from the meaning it has elsewhere in this Act.
"Australian national" means:
(a) an Australian citizen; or
(b) a body corporate established by, or under, a law of:
(i) the Commonwealth; or
(ii) a State; or
(iii) a Territory; or
(c) the Commonwealth; or
(d) a State; or
(e) a Territory.
"Australian ship" means a ship other than a foreign ship.
"Australian waters" means:
(a) the waters of the territorial sea of Australia; and
(b) the waters of the exclusive economic zone of Australia; and
(c) the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone.
Note: Australia , when used in this definition, includes all of the external territories.
"business day" means a day on which the ACMA is open for business in both:
(a) Victoria; and
(b) the Australian Capital Territory.
"cetacean" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"coastal waters" :
(a) of a State, means that part of the sea that is included in the coastal waters of the State within the meaning of the Coastal Waters (State Powers) Act 1980 ; and
(b) of the Northern Territory, means that part of the sea that is included in the coastal waters of the Territory within the meaning of the Coastal Waters (Northern Territory Powers) Act 1980 .
"Commonwealth marine area" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"Commonwealth regulatory approval" , in relation to the installation of a submarine cable or cables, means an approval (however described) that:
(a) relates to the installation of the cable or cables; and
(b) is required under:
(i) the Environment Protection and Biodiversity Conservation Act 1999 ; or
(ii) any other law of the Commonwealth (other than this Schedule).
"conduct" means an act, an omission to perform an act or a state of affairs.
"declared Ramsar wetland" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"declared World Heritage property" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"domestic submarine cable" means that part of a line link (within the meaning of section 30):
(a) that is laid on or beneath the seabed that lies beneath Australian waters; and
(b) that is laid for purposes that include connecting a place in Australia with another place in Australia (whether or not the cable is laid via a place outside Australia); and
(c) that is connected to a place in Australia;
and includes any device attached to that part of the line link, if the device is used in or in connection with the line link, but does not include an international submarine cable.
Note 1: Any part of a line link that is laid elsewhere than on or beneath the Australian seabed, and any device attached to such part of a line link, is not a domestic submarine cable for the purposes of this Schedule.
Note 2: See also subclause (3).
"ecological character" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"ecological community" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"engage in conduct" means to do an act or omit to do an act.
"environment" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"Environment Secretary" means the Secretary of the Department administered by the Minister who is for the time being responsible for administering the Environment Protection and Biodiversity Conservation Act 1999 .
"foreign national" means a person who is not an Australian national.
"foreign ship" has the same meaning as in the Customs Act 1901 .
"installation" , in relation to a submarine cable, includes:
(a) the laying of the cable on or beneath the seabed; and
(b) the attachment of the cable to any other cable or thing; and
(c) any activity that is ancillary or incidental to the installation of the cable (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.
"international submarine cable" means that part of a line link (within the meaning of section 30):
(a) that is laid on or beneath the seabed that lies beneath Australian waters; and
(b) that is laid for purposes that include connecting a place in Australia with a place outside Australia (whether or not the cable is laid via another place in Australia); and
(c) that is connected to a place in Australia;
and includes any device attached to that part of the line link, if the device is used in or in connection with the line link.
Note 1: Any part of a line link that is laid elsewhere than on or beneath the Australian seabed, and any device attached to such part of a line link, is not an international submarine cable for the purposes of this Schedule.
Note 2: See also subclause (4).
"listed international agreement" means any of the following:
(a) an agreement that is a listed international agreement for the purposes of Schedule 3;
(b) an international agreement specified in regulations made for the purposes of this definition.
"listed marine species" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"listed migratory species" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"listed threatened species" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"National Heritage List" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"National Heritage value" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
"non-protection zone installation permit" means a permit under Division 3 of Part 3 of this Schedule.
"protection zone" means a protection zone declared by the ACMA under clause 4.
"protection zone installation permit" means a permit under Division 2 of Part 3 of this Schedule.
"security" has the same meaning as in the Australian Security Intelligence Organisation Act 1979 .
"ship" means any kind of vessel used in navigation by water, however propelled or moved.
"submarine cable" means:
(a) a domestic submarine cable; or
(b) an international submarine cable.
Note: See also subclause (5).
"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.
"world heritage values" has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999 .
(2) A reference in this Schedule to the location of a submarine cable includes, in relation to a submarine cable that is not yet installed, a reference to the proposed location of the submarine cable.
(3) A reference in this Schedule to a domestic submarine cable includes a reference to a part of a domestic submarine cable.
(4) A reference in this Schedule to an international submarine cable includes a reference to a part of an international submarine cable.
(5) A reference in this Schedule to a submarine cable includes a reference to a part of a submarine cable.
2A Extension to offshore areas
Section 11 has effect, in relation to this Schedule, as if the reference in paragraph (1)(b) of that section to each of the eligible Territories were a reference to each of the external Territories.
2AA Operation in Greater Sunrise special regime area
Subsection 13AB(1) of the Seas and Submerged Lands Act 1973 does not affect the application of a provision of this Schedule.
Note: Subsection 13AB(1) of the Seas and Submerged Lands Act 1973 provides that a law of the Commonwealth does not apply in relation to an act, omission, matter or thing directly or indirectly connected with the exploration of, or exploitation of the natural resources of, the continental shelf in the Greater Sunrise special regime area.
2B Submarine cable installed in a protection zone
For the purposes of this Schedule, in determining whether a submarine cable is in, or is installed in, a protection zone, it is immaterial whether the cable is the cable, or any of the cables, in relation to which the protection zone was declared.
Division 1 -- Simplified outline
The following is a simplified outline of this Part:
• The ACMA may declare a protection zone in relation to a submarine cable installed in Australian waters.
• The ACMA must consult with the Environment Secretary and with the public before it declares a protection zone.
• Certain activities are prohibited in the zone and restrictions may be imposed on other activities in the zone.
• It is an offence for a person to damage a submarine cable in a protection zone, to engage in an activity that is prohibited in a protection zone, or to contravene any restrictions imposed on an activity in a protection zone.
Division 2 -- Declaration of protection zones
4 ACMA may declare a protection zone
(1) The ACMA may, by legislative instrument, declare a protection zone in relation to one or more submarine cables, or one or more submarine cables that are proposed to be installed, in Australian waters.
(1A) The ACMA must not declare a protection zone in relation to one or more domestic submarine cables, or one or more domestic submarine cables that are proposed to be installed, unless:
(a) the cable or cables are specified in the regulations; or
(b) the route or routes of the proposed cable or cables are specified in the regulations.
(2) Before the ACMA declares a protection zone, the ACMA must comply with Subdivision B.
Note: Subdivision B requires the ACMA to develop a proposal for the protection zone and to consult about the proposal, and to satisfy other prerequisites.
5 Declaration on ACMA's initiative or in response to request
A declaration of a protection zone may be made:
(a) on the ACMA's own initiative; or
(b) at the request of a person.
6 Response to a request to declare a protection zone
ACMA decides to develop a proposal
(1) If:
(a) a person requests the ACMA to declare a protection zone; and
(b) the ACMA decides to develop a proposal for a protection zone in response to the request;
the ACMA must give the person a copy of its proposal.
ACMA decides not to develop a proposal
(2) If:
(a) a person requests the ACMA to declare a protection zone; and
(b) the ACMA decides not to develop a proposal for a protection zone in response to the request;
the ACMA must notify the person in writing of the ACMA's decision and the reasons for the decision.
7 Decision not to declare a requested protection zone or to declare a different protection zone
No declaration
(1) If:
(a) a person requests the ACMA to declare a protection zone; and
(b) the ACMA develops a proposal for the protection zone in response to the request; and
(c) the ACMA decides not to declare the protection zone;
the ACMA must notify the person in writing of the ACMA's decision and the reasons for the decision.
Declaration different from request
(2) If:
(a) a person requests the ACMA to declare a protection zone; and
(b) the ACMA develops a proposal for the protection zone in response to the request; and
(c) the ACMA declares a protection zone that is different from the requested protection zone;
the ACMA must give the person a copy of the declaration, together with a written statement setting out the ACMA's reasons for declaring a protection zone that is different from the requested protection zone.
8 Location of submarine cable to be specified in declaration
(1) A declaration of a protection zone:
(a) must specify a nominal location for the cable or cables in all Australian waters in which the cable is installed; and
(b) must not specify a location for the cable or cables outside Australian waters.
(2) The location must be expressed in geographic coordinates and must include the geodetic datum to which the coordinates refer.
Area is as set out in this clause unless declaration specifies otherwise
(1) Unless the ACMA specifies otherwise in the declaration of a protection zone, the protection zone in relation to:
(a) one submarine cable--is the area set out in subclause (2); and
(b) more than one submarine cable--is the area set out in subclause (4).
Protection zone in relation to only one submarine cable
(2) The protection zone in relation to one submarine cable:
(a) consists of so much of the following as is Australian waters:
(i) the area within 1,852 metres either side of the points on the surface of the sea above the nominal location of the cable; and
(ii) the waters beneath that area; and
(b) the seabed and subsoil beneath that area.
Note: If a cable leaves one area of Australian waters and subsequently enters another area of Australian waters, subclause (2) has the effect that the protection zone in relation to that cable covers both areas of Australian waters.
(3) A declaration of a protection zone in relation to one submarine cable has no effect to the extent that it covers an area outside the area described in subclause (2).
Protection zone in relation to more than one submarine cable
(4) The protection zone in relation to more than one submarine cable:
(a) consists of so much of the following as is Australian waters:
(i) the area between the nominal location of the cables; and
(ii) the area within 1,852 metres from the outside edge of the points on the surface of the sea above the nominal location of each of the two outermost cables; and
(iii) the waters beneath those areas; and
(b) the seabed and subsoil beneath those areas.
Note: If a cable leaves one area of Australian waters and subsequently enters another area of Australian waters, subclause (4) has the effect that the protection zone in relation to that cable covers both areas of Australian waters.
(5) A declaration of a protection zone in relation to more than one submarine cable has no effect to the extent that it covers an area outside the area described in subclause (4).
Nominal location
(6) In this clause:
"nominal location" , of a submarine cable or cables, means the nominal location specified in the declaration of the protection zone in relation to the cable or cables.
(1) A declaration of a protection zone may specify activities that are prohibited in the protection zone.
(2) If a declaration of a protection zone does not specify activities that are prohibited in the protection zone, the activities specified in subclause (4) are prohibited.
(3) An activity which is specified in a declaration of a protection zone must be an activity that is covered by subclause (4).
(4) This subclause covers the following activities:
(a) the use of:
(i) trawl gear that is designed to work on or near the seabed (for example, a demersal trawl); or
(ii) a net anchored to the seabed and kept upright by floats (for example, a demersal gillnet); or
(iii) a fishing line that is designed to catch fish at or near the seabed (for example, a demersal line); or
(iv) a dredge; or
(v) a pot or trap; or
(vi) a squid jig; or
(vii) a seine; or
(viii) a structure moored to the seabed with the primary function of attracting fish for capture (for example, a fish aggregating device);
(b) towing, operating, or suspending from a ship:
(i) any item mentioned in paragraph (a); or
(ii) a net, line, rope, chain or any other thing used in connection with fishing operations;
(c) lowering, raising or suspending an anchor from a ship;
(d) sand mining;
(e) exploring for or exploiting resources (other than marine species);
(f) mining or the use of mining techniques;
(g) any activity that involves a serious risk that an object will connect with the seabed, if a connection between the object and a submarine cable would be capable of damaging the cable;
(h) an activity specified in the regulations, being an activity that, if done near a submarine cable, would involve a serious risk of damaging the cable.
(5) However, subclause (4) does not cover an activity if:
(a) the activity is carried on by, or on behalf of, a person who owns or operates a submarine cable in the protection zone; and
(b) the activity consists of the maintenance or repair of the submarine cable.
(1) A declaration of a protection zone may specify restrictions that are imposed in the protection zone on activities in the protection zone.
(2) An activity on which restrictions are imposed must be an activity that is covered by subclause (3).
(3) This subclause covers the following activities:
(a) the use of:
(i) a net that is above the seabed at all times; or
(ii) lures or baits attached to a line towed behind a ship;
(b) towing, operating, or suspending from a ship:
(i) any item mentioned in paragraph (a); or
(ii) a net, line, rope, chain or any other thing used in connection with fishing operations;
(c) fishing using a line;
(d) installing, maintaining or removing an electricity cable, an oil or gas pipeline, any like cables or pipelines and any associated equipment;
(e) constructing, maintaining or removing an installation for the use of ships;
(f) constructing or maintaining navigational aids;
(g) any activity that involves a risk that an object will connect with the seabed, if a connection between the object and a submarine cable would be capable of damaging the cable;
(h) an activity specified in the regulations, being an activity that, if done near a submarine cable, could involve a risk of damaging the cable.
(4) However, subclause (3) does not cover an activity if:
(a) the activity is carried on by, or on behalf of, a person who owns or operates a submarine cable in the protection zone; and
(b) the activity consists of the maintenance or repair of the submarine cable.
(1) A declaration of a protection zone may be subject to any conditions that the ACMA considers appropriate.
(2) Those conditions must be specified in the declaration.
13 When a declaration takes effect
(1) A declaration of a protection zone takes effect at the time specified by the ACMA.
(2) If a declaration relates only to a submarine cable or cables that are not yet installed, the ACMA must not specify a time before the time that the ACMA is satisfied that installation of the cable or cables will begin.
(1) A declaration of a protection zone continues in effect until the ACMA revokes it.
(2) To avoid doubt, a declaration continues in effect even if the submarine cable or cables in the protection zone have ceased to operate.
Subdivision B -- Prerequisites to declaration of a protection zone
15 ACMA to develop a proposal for a protection zone
(1) Before the ACMA declares a protection zone in relation to one or more submarine cables, or one or more submarine cables that are proposed to be installed, the ACMA must develop a proposal for the protection zone.
(2) The proposal must include:
(a) the nominal location of the submarine cable or cables in Australian waters; and
(b) if the area of the proposed protection zone is different from the area under clause 9--details of the location and dimensions of the proposed protection zone; and
(c) details of the activities to be prohibited in the proposed protection zone; and
(d) details of the restrictions that are to be imposed on activities in the proposed protection zone.
(3) A proposal developed under subsection (1) is not a legislative instrument.
17 ACMA to publish proposal etc.
Scope
(1) This clause applies to a proposal developed under clause 15.
Publication
(2) The ACMA must:
(a) publish the proposal on the ACMA's website; and
(b) invite public submissions on the proposal.
Provision of copy of proposal
(3) If a person requests the ACMA to give the person a copy of the proposal, the ACMA must give the person a copy of the proposal within 2 business days after the day on which the ACMA received the request.
(4) However, subclause (3) does not apply if the ACMA has:
(a) declared the protection zone to which the proposal relates; or
(b) decided not to declare the protection zone to which the proposal relates.
(5) If the person requests that a copy of the proposal be given in electronic form, the ACMA may give the copy in electronic form.
(6) The ACMA is not entitled to impose a charge for giving the person a copy of the proposal.
17A ACMA to publish summary of proposal
Scope
(1) This clause applies to a proposal developed under clause 15.
Publication
(2) The ACMA must:
(a) prepare a summary of the proposal; and
(b) publish the summary:
(i) in the Gazette ; and
(ii) on the ACMA's website; and
(iii) in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory; and
(iv) if an external Territory is affected by the proposal--in a newspaper circulating generally in the external Territory.
(3) The summary of the proposal must include information about how people can:
(a) access the proposal on the ACMA's website; and
(b) request a copy of the proposal under subclause 17(3).
18 Cable must be a submarine cable of national significance
(1) The ACMA must not declare a protection zone in relation to one or more submarine cables unless the ACMA is satisfied that the cable, or each cable, is or will be a cable of national significance.
(2) For the purposes of subclause (1) if:
(a) a cable is specified in regulations made for the purposes of subclause 4(1A); or
(b) a route of a cable is specified in regulations made for the purposes of subclause 4(1A);
the cable is taken to be of national significance.
19 Consultation with Environment Secretary
(1) The ACMA must not declare a protection zone in relation to one or more submarine cables unless the ACMA has consulted with the Environment Secretary in relation to the proposal for the protection zone.
(2) The ACMA must have regard to any advice or recommendations provided by the Environment Secretary in relation to the proposal.
20 Matters the ACMA must have regard to
In deciding whether to declare a protection zone in relation to one or more submarine cables, the ACMA must have regard to:
(b) any submissions received from the public about the proposal for the protection zone; and
(c) the objective of facilitating the supply of efficient, modern and cost - effective carriage services to the public; and
(d) if the proposed protection zone relates to a submarine cable that is not yet installed--the impact of the installation on the environment; and
(e) if the proposed protection zone relates to a submarine cable that is not yet installed--any relevant technical and economic aspects of the installation; and
(f) if the proposed protection zone relates to a submarine cable that is not yet installed--whether the submarine cable is to be co - located with an existing submarine cable or cables; and
(g) if the proposed protection zone relates to a submarine cable that is not yet installed--the economic and social benefits that are likely to result from the installation of the cable; and
(h) any other matters that the ACMA considers relevant.
21 Environment and heritage considerations
For the purposes of paragraph 20(d) of this Schedule, the ACMA must have regard to:
(a) whether the installation, maintenance or operation of the submarine cable:
(i) is inconsistent with Australia's obligations under a listed international agreement; or
(ii) could have an adverse effect on a listed threatened species or threatened ecological community, or impede the recovery of a listed threatened species or threatened ecological community; or
(iii) could have an adverse effect on a listed marine species; or
(iv) could have an adverse effect on the environment, including the environment within a Commonwealth marine area; or
(v) could have an adverse effect on cetaceans; or
(vi) could have an adverse effect on a listed migratory species; or
(vii) could have an adverse effect on the National Heritage values of a place included in the National Heritage List; or
(viii) could have an adverse effect on the ecological character of a declared Ramsar wetland; or
(ix) could have an adverse effect on the world heritage values of a declared World Heritage property; or
(x) could have an adverse effect on a place that Australia is required to protect by the terms of a listed international agreement; or
(xi) could have an adverse effect on an area that, under the law of the Commonwealth, a State or a Territory, is reserved wholly or principally for marine conservation purposes (however described); or
(xii) could have an adverse effect on an area that, under a law of the Commonwealth, a State or a Territory, is protected from significant environmental disturbance; and
(b) whether the submarine cable is to be installed at or near an area or thing that is of particular significance to Aboriginal persons, or Torres Strait Islanders, in accordance with their traditions; and
(c) such other matters (if any) as the ACMA considers relevant.
22 Deadline for final decision about protection zone
If the ACMA publishes a proposal for a protection zone under clause 17, the ACMA's decision whether or not to declare the protection zone must be made as soon as practicable, and in any event within 12 months, after the day on which the proposal was published.
Division 3 -- Varying or revoking a declaration of a protection zone
Subdivision A -- Variation or revocation
23 ACMA may vary or revoke a declaration of a protection zone
(1) The ACMA may, by legislative instrument, vary or revoke a declaration of a protection zone.
Note: Clause 48 requires a carrier to notify the ACMA if a submarine cable ceases to be used.
(2) Before the ACMA varies or revokes a declaration of a protection zone, the ACMA must comply with Subdivision B.
Note: Subdivision B requires the ACMA to develop a variation or revocation proposal and to consult about the proposal.
24 Variation or revocation on ACMA's initiative or in response to request
A variation or revocation of a declaration of a protection zone may be made:
(a) on the ACMA's own initiative; or
(b) at the request of a person.
25 ACMA to notify affected carrier of request to vary or revoke a declaration
If a person requests the ACMA to vary or revoke a declaration of a protection zone, the ACMA must, as soon as practicable, give details of the request to each carrier who is responsible for a submarine cable or cables in the protection zone.
26 Response to a request to vary or revoke a declaration
ACMA decides to develop a variation or revocation proposal
(1) If:
(a) a person requests the ACMA to vary or revoke a declaration of a protection zone; and
(b) the ACMA decides to develop a variation or revocation proposal in response to the request;
the ACMA must:
(c) give the person a copy of its proposal; and
(d) if the proposal differs from what the person requested--notify the person in writing of the reasons for the difference.
ACMA decides not to develop a variation or revocation proposal
(2) If:
(a) a person requests the ACMA to vary or revoke a declaration of a protection zone; and
(b) the ACMA decides not to develop a proposal to vary or revoke a declaration of a protection zone in response to the request;
the ACMA must notify the person in writing of the ACMA's decision and the reasons for the decision.
27 Decision not to vary or revoke a declaration after a request to do so
If, after developing a proposal to vary or revoke a declaration of a protection zone in response to a request by a person, the ACMA:
(a) decides not to vary or revoke the declaration; or
(b) decides to vary the declaration in a way different from that requested; or
(c) decides to vary the declaration when revocation was requested; or
(d) decides to revoke the declaration when variation was requested;
the ACMA must notify the person in writing of the ACMA's decision and the reasons for the decision.
28 When a variation or revocation takes effect
A variation or revocation of a declaration of a protection zone takes effect at the time specified by the ACMA.
29 Protection zone as varied must not exceed permitted area
Subclauses 9(3) and (5) (about the area of a protection zone) continue to apply in relation to a declaration of a protection zone that is varied under this Division.
Subdivision B -- Prerequisites to variation or revocation of declaration
30 ACMA to develop a variation or revocation proposal
(1) Before the ACMA varies or revokes a declaration of a protection zone, the ACMA must develop a proposal to vary or revoke the declaration.
(2) A proposal developed under subsection (1) is not a legislative instrument.
32 ACMA to publish proposal etc.
Scope
(1) This clause applies to a proposal developed under clause 30.
Publication
(2) The ACMA must:
(a) publish the proposal on the ACMA's website; and
(b) invite public submissions on the proposal.
Provision of copy of proposal
(3) If a person requests the ACMA to give the person a copy of the proposal, the ACMA must give the person a copy of the proposal within 2 business days after the day on which the ACMA received the request.
(4) However, subclause (3) does not apply if the ACMA has:
(a) made the variation or revocation to which the proposal relates; or
(b) decided not to make the variation or revocation to which the proposal relates.
(5) If the person requests that a copy of the proposal be given in electronic form, the ACMA may give the copy in electronic form.
(6) The ACMA is not entitled to impose a charge for giving the person a copy of the proposal.
32A ACMA to publish summary of proposal
Scope
(1) This clause applies to a proposal developed under clause 30.
Summary
(2) The ACMA must:
(a) prepare a summary of the proposal; and
(b) publish the summary:
(i) in the Gazette ; and
(ii) on the ACMA's website; and
(iii) in a newspaper circulating generally in each State, the Australian Capital Territory and the Northern Territory; and
(iv) if an external Territory is affected by the proposal--in a newspaper circulating generally in the external Territory.
(3) If the summary under subclause (2) relates to a proposal to vary a declaration of a protection zone, the summary must include:
(a) the name of the protection zone; and
(b) details of the location and dimensions of the protection zone as proposed to be varied; and
(c) details of the location and dimensions of the protection zone as it exists before the variation; and
(d) an outline of the reasons for the variation; and
(e) information about how people can:
(i) access the proposal on the ACMA's website; and
(ii) request a copy of the proposal under subclause 32(3).
(4) If the summary under subclause (2) relates to a proposal to revoke a declaration of a protected zone, the summary must include:
(a) the name of the protection zone; and
(b) details of the location and dimensions of the protection zone; and
(c) an outline of the reasons for the revocation; and
(d) information about how people can:
(i) access the proposal on the ACMA's website; and
(ii) request a copy of the proposal under subclause 32(3).
33 Consultation with Environment Secretary
(1) The ACMA must not vary or revoke a declaration of a protection zone unless the ACMA has consulted with the Environment Secretary in relation to the proposal to vary or revoke the declaration.
(2) The ACMA must have regard to any advice or recommendations provided by the Environment Secretary in relation to the proposal.
34 Matters the ACMA must have regard to
In deciding whether to vary or revoke a declaration of a protection zone, the ACMA must have regard to:
(b) any submissions received from the public about the variation or revocation proposal; and
(c) the legitimate commercial interests of:
(i) the owner of each submarine cable in the protection zone; and
(ii) if the carrier responsible for a cable in the protection zone is not the owner of the cable--that carrier; and
(d) any other matters that the ACMA considers relevant.
35 Deadline for final decision about varying or revoking a protection zone
If the ACMA publishes a proposal to vary or revoke a declaration of a protection zone under clause 32, the ACMA must decide whether to vary or revoke the declaration within 180 days after the day on which the proposal was published.
Division 4 -- Offences in relation to a protection zone
Subdivision A -- Damaging a submarine cable
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to a submarine cable; and
(c) the cable is in a protection zone.
Penalty: Imprisonment for 10 years or 600 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code .
37 Negligently damaging a submarine cable
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to a submarine cable; and
(c) the person is negligent as to the fact that the conduct results in that damage; and
(d) the cable is in a protection zone.
Penalty: Imprisonment for 3 years or 180 penalty units, or both.
(2) Strict liability applies to paragraph (1)(d).
Note: For strict liability, see section 6.1 of the Criminal Code .
38 Defence to offences of damaging a submarine cable
Subclauses 36(1) and 37(1) do not apply if:
(a) the conduct that resulted in damage to the submarine cable was necessary to save a life or a ship; or
(b) the conduct that resulted in damage to the submarine cable was necessary to prevent pollution; or
(c) the defendant took all reasonable steps to avoid causing damage to the submarine cable; or
(d) the defendant is the carrier who owns or operates the submarine cable; or
(e) when the conduct occurred, the defendant was acting on behalf of the carrier who owns or operates the submarine cable.
Note: The defendant bears an evidential burden in relation to the matters in this clause. See subsection 13.3(3) of the Criminal Code .
39 Master or owner of ship used in offence of damaging a submarine cable
(1) A person (the first person ) commits an offence if:
(a) the first person is the owner or master of a ship; and
(b) the first person permits another person to use the ship; and
(c) the other person commits an offence against clause 36; and
(d) the ship is used in the commission of the offence and the first person is reckless as to that fact.
Penalty: Imprisonment for 10 years or 600 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code .
Subdivision B -- Engaging in prohibited or restricted activities
40 Engaging in prohibited or restricted activities
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct occurs in a protection zone; and
(c) the conduct:
(i) is prohibited in the protection zone; or
(ii) contravenes a restriction imposed on an activity in the protection zone; and
(d) the conduct is not engaged in by the carrier who owns or operates the cable, or a person acting on behalf of such a carrier, for the purpose of maintaining or repairing a submarine cable for which the carrier is responsible; and
(e) the conduct is not engaged in by a carrier who holds a protection zone installation permit, or a person acting on such a carrier's behalf, in, or in the course of, the installation of a submarine cable in accordance with the permit.
Penalty: Imprisonment for 5 years or 300 penalty units, or both.
41 Aggravated offence of engaging in prohibited or restricted activities
A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct occurs in a protection zone; and
(c) the conduct:
(i) is prohibited in the protection zone; or
(ii) contravenes a restriction imposed on an activity in the protection zone; and
(d) the person engages in the conduct with the intention of making a commercial gain; and
(e) the conduct is not engaged in by the carrier who owns or operates the cable, or a person acting on behalf of such a carrier, for the purpose of maintaining or repairing a submarine cable for which the carrier is responsible; and
(f) the conduct is not engaged in by a carrier who holds a protection zone installation permit, or a person acting on such a carrier's behalf, in, or in the course of, the installation of a submarine cable in accordance with the permit.
Penalty: Imprisonment for 7 years or 420 penalty units, or both.
42 Defences to offences of engaging in prohibited or restricted activities
Clauses 40 and 41 do not apply if:
(a) the conduct was necessary to save a life or ship; or
(b) the conduct was necessary to prevent pollution; or
(c) the defendant took all reasonable steps to avoid engaging in the conduct.
Note: The defendant bears an evidential burden in relation to the matters in this clause. See subsection 13.3(3) of the Criminal Code .
43 Alternative verdict if aggravated offence not proven
If, on a trial for an offence against clause 41:
(a) the arbiter of fact is not satisfied that the defendant engaged in the activity with the intention of making a commercial gain; and
(b) the arbiter of fact is otherwise satisfied that the defendant has committed an offence against clause 40;
the arbiter may find the defendant not guilty of the offence against clause 41 but guilty of an offence against clause 40, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
44 Master or owner of ship used in offence of engaging in prohibited or restricted activities
(1) A person (the first person ) commits an offence if:
(a) the first person is the owner or master of a ship; and
(b) the first person permits another person to use the ship; and
(c) the other person commits an offence against clause 40 or 41; and
(d) the ship is used in the commission of the offence and the first person is reckless as to that fact.
(a) if the other person committed an offence against clause 40--imprisonment for 5 years or 300 penalty units, or both; or
(b) if the other person committed an offence against clause 41--imprisonment for 7 years or 420 penalty units, or both.
(2) Strict liability applies to paragraph (1)(c).
Note: For strict liability, see section 6.1 of the Criminal Code .
Subdivision C -- Foreign nationals and foreign ships
44A Foreign nationals and foreign ships
Foreign nationals--no involvement of ship
(1) This Division does not apply to anything done, or omitted to be done, if:
(a) the thing is done, or omitted to be done, by a foreign national; and
(b) the thing is done, or omitted to be done in, on, or beneath the seabed that lies beneath, either or both of the following:
(i) the waters of the exclusive economic zone of Australia;
(ii) the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and
(c) the thing done, or omitted to be done, does not involve a ship;
unless the thing done, or omitted to be done, touches, concerns, arises out of or is connected with:
(d) the exploration of the continental shelf of Australia; or
(e) the exploitation of the resources of the continental shelf of Australia (including the exploitation of the resources of the waters of the exclusive economic zone); or
(f) the operations of artificial islands, installations or structures that are under Australia's jurisdiction.
Foreign nationals--involvement of foreign ship
(2) This Division does not apply to anything done, or omitted to be done, if:
(a) the thing is done, or omitted to be done, by a foreign national; and
(b) the thing is done, or omitted to be done, in either or both of the following:
(i) the waters of the exclusive economic zone of Australia;
(ii) the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone; and
(c) the thing done, or omitted to be done, involves a foreign ship;
unless the thing done, or omitted to be done, touches, concerns, arises out of or is connected with:
(d) the exploration of the continental shelf of Australia; or
(e) the exploitation of the resources of the continental shelf of Australia (including the exploitation of the resources of the waters of the exclusive economic zone); or
(f) the operations of artificial islands, installations or structures that are under Australia's jurisdiction.
(1) A person who suffers, directly or indirectly, loss or damage:
(a) because a submarine cable in a protection zone is damaged by conduct of another person; or
(b) because another person engages in conduct that is prohibited in a protection zone; or
(c) because another person engages in conduct that contravenes a restriction imposed on an activity in a protection zone;
may recover the amount of the loss or damage:
(d) against that other person; or
(e) against any person involved in the contravention (whether or not a person is convicted of an offence in respect of the contravention).
(2) An action under subclause (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.
(3) A reference in subclause (1) to a person who is involved in a contravention is a reference to a person who has:
(a) aided, abetted, counselled or procured the contravention; or
(b) induced, whether by threats or promises or otherwise, the contravention; or
(c) been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention; or
(d) conspired with others to effect the contravention.
(4) Jurisdiction is conferred on the Federal Court in any matter arising under this clause in respect of which a civil proceeding is instituted under this clause.
46 Indemnity for loss of anchor etc.
(1) If:
(a) after all reasonable precautionary measures have been taken, an anchor, a net or any other fishing gear belonging to a ship is sacrificed in order to avoid damaging a submarine cable in a protection zone; and
(b) at the time the sacrifice is made, no person on board the ship is engaging in conduct:
(i) that is prohibited in the protection zone; or
(ii) that contravenes a restriction imposed on an activity in the protection zone;
the owner of the ship is entitled to be indemnified for that loss by the carrier responsible for the submarine cable.
(2) Jurisdiction is conferred on the Federal Court in any matter arising under this clause in respect of which a civil proceeding is instituted under this clause.
47 ACMA to notify relevant authorities of declaration, variation etc. of protection zone
(1) If the ACMA declares a protection zone under clause 4, or varies or revokes a declaration under clause 23, the ACMA must notify the authorities mentioned in subclause (2) as soon as practicable of the details of the ACMA's decision to declare the protection zone or vary or revoke the declaration.
(2) The authorities are the following:
(aa) the Department administered by the Minister administering Part XII of the Customs Act 1901 ;
(ab) the Australian Defence Force;
(ac) the Australian Federal Police;
(a) the Australian Fisheries Management Authority;
(b) that part of the Defence Department known as the Australian Hydrographic Office;
(c) the Australian Maritime Safety Authority;
(d) the authority administering the business carried on at a port or ports of a State or the Northern Territory, if the port or ports are directly affected by the declaration;
(e) the National Offshore Petroleum Safety and Environmental Management Authority;
(f) the National Offshore Petroleum Titles Administrator;
(fa) the Offshore Infrastructure Registrar;
(g) an authority that is:
(i) established by or under a law of the Commonwealth, a State or a Territory; and
(ii) specified in an instrument in force under subclause (3).
(3) The Minister may, by legislative instrument, specify one or more authorities for the purposes of subparagraph (2)(g)(ii).
48 Notice if carrier decommissions a submarine cable
If:
(a) a declaration of a protection zone in relation to a submarine cable has effect; and
(b) the cable ceases to be in use (other than temporarily);
the carrier who is responsible for the cable must notify the ACMA in writing of the cessation, as soon as practicable after the cessation happens.
Part 3 -- Permits to install submarine cables
Division 1 -- Simplified outline
The following is a simplified outline of this Part:
• A carrier may apply to the ACMA to install a submarine cable in a protection zone.
• A carrier may apply to the ACMA to install an international submarine cable in both:
(a) a protection zone; and
(b) Australian waters that are not in a protection zone and that are not coastal waters.
• A carrier may apply to the ACMA to install an international submarine cable in Australian waters that are not in a protection zone and that are not coastal waters.
• There is a streamlined process for applications for permits to install submarine cables in protection zones. Also, a carrier who installs a submarine cable in a protection zone in accordance with a permit is exempt from certain State and Territory laws.
• It is an offence for a person to install an international submarine cable without a permit in a protection zone, or in Australian waters that are not in a protection zone and that are not coastal waters.
• It is an offence for a person to install a domestic submarine cable without a permit in a protection zone.
• It is also an offence for a person who holds a permit to breach a condition of the permit.
Division 2 -- Protection zone installation permits
51 Application for a protection zone installation permit
(1) A carrier may apply to the ACMA for a permit (a protection zone installation permit ) to:
(a) install one or more submarine cables in a protection zone; or
(b) install a single international submarine cable in both:
(i) a protection zone; and
(ii) Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory; or
(c) install each of 2 or more international submarine cables in both:
(i) a protection zone; and
(ii) Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory.
(2) It is immaterial whether the cable or cables specified in the application are the cable or cables in relation to which the protection zone was declared.
(1) An application must be:
(a) in writing; and
(b) in the form approved in writing by the ACMA.
(2) The approved form must require the application to set out:
(a) the proposed route or routes, in Australian waters, of the submarine cable or cables specified in the application; and
(b) information about the ownership and control of the submarine cable or cables specified in the application; and
(c) any other relevant information.
(3) For the purposes of subclause (2), control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices:
(a) whether or not having legal or equitable force; and
(b) whether or not based on legal or equitable rights; and
(c) whether or not capable of being exercised indirectly through one or more interposed companies, partnerships or trusts.
53 Application to be accompanied by charge
An application must be accompanied by the charge (if any) imposed on the application by a determination under section 60 of the Australian Communications and Media Authority Act 2005 .
This Division does not prevent the withdrawal of an application and the submission of a fresh application.
54A Notification of change of circumstances
(1) If:
(a) an application is pending; and
(b) the applicant becomes aware of a change of circumstances relating to information set out in the application;
the applicant must:
(c) notify the change to the ACMA; and
(d) do so as soon as practicable.
(2) After considering the notification, the ACMA must decide whether or not the change should be treated as a material change in circumstances for the purposes of clause 58.
Note: Clause 58 deals with the timing of the ACMA's decision on the application.
(3) The ACMA must:
(a) notify the applicant in writing of the ACMA's decision under subclause (2); and
(b) do so within 2 business days after the day on which the decision is made.
(1) The ACMA may request the applicant to give the ACMA further information about the application.
(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.
(1) Before making a decision on the application for a protection zone installation permit, the ACMA must consult:
(a) the Secretary of the Attorney - General's Department; and
(aa) the Home Affairs Secretary; and
(b) any other persons the ACMA considers relevant.
(2) Within 2 business days after the day on which the ACMA received the application, the ACMA must give each of the Secretaries mentioned in paragraphs (1)(a) and (aa) a copy of the application.
(3) Within 15 business days after the day on which a Secretary receives a copy of the application, that Secretary must:
(a) give a written notice to the ACMA stating that, while the notice remains in force, the ACMA must not grant the permit; or
(b) make a submission to the ACMA; or
(c) give a written notice to the ACMA stating that he or she does not require any further consultation about the application.
Notice to the ACMA under paragraph (3)(a)
(4) The ACMA must not grant the permit while a notice is in force under paragraph (3)(a).
(5) Unless sooner revoked, a notice under paragraph (3)(a) remains in force during the period specified in the notice.
(6) The period specified under subclause (5) must not be longer than 3 months.
(7) A Secretary who gives a notice under paragraph (3)(a) may, by written notice given to the ACMA, extend, or further extend, the period referred to in subclause (5), so long as the extension, or further extension, does not result in the notice under paragraph (3)(a) being in force for longer than 12 months.
(8) A Secretary who gives a notice under paragraph (3)(a) may revoke the notice by giving the ACMA a further written notice.
(9) Within 2 business days after the day on which the ACMA received a notice under paragraph (3)(a) or subclause (7), the ACMA must give the applicant a copy of the notice.
Submission to the ACMA
(10) If a notice under paragraph (3)(a) is in force, the Secretary who gave the notice may make a submission to the ACMA.
(11) A submission to the ACMA under paragraph (3)(b) or subclause (10) may include:
(a) recommendations about the conditions that should be specified in the permit under paragraph 58A(1)(d) or (e) of this Schedule; or
(b) such other matters (if any) as the Secretary making the submission considers relevant.
Notice to the ACMA under paragraph (3)(c)
(12) A notice under paragraph (3)(c) cannot be revoked.
Grant
(1) After considering the application, the ACMA may:
(a) if the application is covered by paragraph 51(1)(a) of this Schedule--grant the applicant a protection zone installation permit authorising the installation, in the protection zone, of the submarine cable or cables specified in the application; or
(b) if the application is covered by paragraph 51(1)(b) of this Schedule--grant the applicant a protection zone installation permit authorising the installation, in both:
(i) the protection zone; and
(ii) Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory;
of the international submarine cable specified in the application; or
(c) if the application is covered by paragraph 51(1)(c) of this Schedule--grant the applicant a protection zone installation permit authorising the installation, in both:
(i) the protection zone; and
(ii) Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory;
of each of the international submarine cables specified in the application.
Refusal
(3) After considering the application, the ACMA may refuse to grant a protection zone installation permit.
(4) If the ACMA refuses to grant the permit, it must notify the applicant in writing of the ACMA's decision and the reasons for the decision.
57 Matters to which the ACMA must have regard in making a decision about a permit
In deciding whether to grant a protection zone installation permit, the ACMA must have regard to:
(a) if the Secretary of the Attorney - General's Department or the Home Affairs Secretary makes a submission to the ACMA under clause 55A--that submission; and
(b) any other matters that the ACMA considers relevant.
57A Refusal of permit--security
(1) If the Home Affairs Minister, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a protection zone installation permit to a particular carrier would be prejudicial to security, the Home Affairs Minister may give a written direction to the ACMA not to grant a protection zone installation permit to the carrier.
(2) The ACMA must comply with a direction under subclause (1).
(3) While a direction is in force under this clause:
(a) the ACMA cannot reconsider a non - compulsory refusal to grant a protection zone installation permit to the carrier; and
(b) the Administrative Appeals Tribunal cannot consider an application for review of a non - compulsory refusal to grant a protection zone installation permit to the carrier.
(4) If an application for a protection zone installation permit is pending at the time when the Home Affairs Minister gives a direction to the ACMA under this clause, then the application lapses.
(5) In this clause:
"non-compulsory refusal" means a refusal to grant a protection zone installation permit, other than a refusal that is required by this clause.
58 Timing of decision on application
Further information requested
(1) If:
(a) a carrier applies for a protection zone installation permit; and
(b) the ACMA requests the applicant to give the ACMA further information under subclause 55(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c) 25 business days; or
(d) if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 35 business days)--that number of business days;
after the day on which the applicant gave the ACMA the information.
No further information requested
(2) If:
(a) a carrier applies for a protection zone installation permit; and
(b) the ACMA does not request the applicant to give the ACMA further information under subclause 55(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c) 25 business days; or
(d) if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 35 business days)--that number of business days;
after the day on which the application was made.
Extension for change in circumstances relating to application
(3) If:
(a) a carrier applies for a protection zone installation permit; and
(b) the carrier notifies the ACMA of a change in circumstances under subclause 54A(1); and
(c) the ACMA decides under subclause 54A(2) that the change should not be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by 5 business days.
(4) If:
(a) a carrier applies for a protection zone installation permit; and
(b) the carrier notifies the ACMA of a change in circumstances under subclause 54A(1); and
(c) the ACMA decides under subclause 54A(2) that the change should be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by:
(d) 25 business days; or
(e) if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 35 business days)--that number of business days.
Extension where notice preventing grant of permit is in force
(5) If:
(a) a carrier applies for a protection zone installation permit; and
(b) the Secretary of the Attorney - General's Department or the Home Affairs Secretary gives a notice to the ACMA under paragraph 55A(3)(a) of this Schedule in relation to the application;
the number of business days referred to in subclause (1) or (2) of this clause is extended by one business day for each business day in the period during which the notice remains in force.
(1) A protection zone installation permit held by a carrier is subject to the following conditions:
(a) a condition that so much of the relevant cable or cables as is installed in a protection zone must be installed within:
(i) 75 metres of the route or routes specified by the ACMA in the permit; or
(ii) if the ACMA specifies another distance in the permit--that distance of the route or routes specified by the ACMA in the permit;
(b) if the permit is covered by paragraph 56(1)(b) or (c) of this Schedule--a condition that so much of the relevant cable or cables as is installed in Australian waters that:
(i) are not in a protection zone; and
(ii) are not coastal waters of a State or the Northern Territory;
must be installed within:
(iii) 926 metres of the route or routes specified by the ACMA in the permit; or
(iv) if the ACMA specifies another distance in the permit--that distance of the route or routes specified by the ACMA in the permit;
(c) a condition that the carrier, or a person acting on behalf of the carrier, must not install the relevant cable or cables unless all Commonwealth regulatory approvals have been obtained for the installation;
(d) such conditions (if any) in relation to security as the ACMA specifies in the permit;
(e) such conditions (if any) in relation to the installation of the relevant cable or cables as the ACMA specifies in the permit.
Variation of conditions
(2) The ACMA may, by written notice given to the holder of a protection zone installation permit:
(a) vary a condition covered by paragraph (1)(a) or (b) by:
(i) specifying a distance; or
(ii) varying a distance; or
(b) vary a condition covered by paragraph (1)(d) or (e).
A protection zone installation permit is in force for a period of 18 months from the day the permit is granted.
The holder of a protection zone installation permit may, at any time, surrender the permit by written notice given to the ACMA.
(1) Before a protection zone installation permit expires, the holder of the permit may apply to the ACMA to extend the duration of the permit for a further 180 days.
(2) The holder must give the ACMA reasons for requesting to extend the duration of the permit.
(3) If the ACMA refuses the application, the ACMA must give the holder written notice of the ACMA's decision and the reasons for the decision.
62 Suspension or cancellation of permit
(1) The ACMA may suspend or cancel a protection zone installation permit by written notice to the holder of the permit, if the ACMA is satisfied that:
(a) the holder has breached a condition to which the permit is subject; or
(b) the holder has not complied with a condition of the Code of Practice in force under clause 15 of Schedule 3 that applies to the installation of submarine cables.
(2) Before a permit is suspended or cancelled under subclause (1):
(a) the ACMA must give the holder 30 days' written notice of the ACMA's intention to suspend or cancel the permit and the ground or grounds on which the ACMA intends to do so; and
(b) the ACMA must give the holder an opportunity to submit to the ACMA any matters that the holder wishes the ACMA to take into account in deciding whether to suspend or cancel the permit; and
(c) the ACMA must take into account any matters submitted by the holder under paragraph (b) and any action taken by the holder to address the ACMA's concerns or to prevent the recurrence of similar circumstances.
63 Exemption from State and Territory laws
(1) This clause applies to the installation of a submarine cable in accordance with a protection zone installation permit.
(2) A carrier may install, or cause to be installed, a cable 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) the powers and functions of a local government body; or
(d) the supply of fuel or power, including the supply and distribution of extra - low voltage power systems; or
(e) 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(d) 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.
(5) If subclause (2) entitles a person to engage in activities despite particular laws of a State or Territory, nothing in this clause affects the operation of any other law of a State or Territory, so far as that other law is capable of operating concurrently.
(6) This clause does not affect the liability of a carrier to taxation under a law of a State or Territory.
Division 3 -- Non - protection zone installation permits
A carrier may apply to the ACMA for a permit to install one or more international submarine cables in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory (a non - protection zone installation permit ).
(1) An application must be:
(a) in writing; and
(b) in the form approved in writing by the ACMA.
(2) The approved form must require the application to set out:
(a) the proposed route or routes, in Australian waters, of the submarine cable or cables specified in the application; and
(b) information about the ownership and control of the submarine cable or cables specified in the application; and
(c) any other relevant information.
(3) For the purposes of subclause (2), control includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices:
(a) whether or not having legal or equitable force; and
(b) whether or not based on legal or equitable rights; and
(c) whether or not capable of being exercised indirectly through one or more interposed companies, partnerships or trusts.
66 Application to be accompanied by charge
An application must be accompanied by the charge (if any) imposed on the application by a determination under section 60 of the Australian Communications and Media Authority Act 2005 .
This Division does not prevent the withdrawal of an application and the submission of a fresh application.
67A Notification of change of circumstances
(1) If:
(a) an application is pending; and
(b) the applicant becomes aware of a change of circumstances relating to information set out in the application;
the applicant must:
(c) notify the change to the ACMA; and
(d) do so as soon as practicable.
(2) After considering the notification, the ACMA must decide whether or not the change should be treated as a material change in circumstances for the purposes of clause 73.
Note: Clause 73 deals with the timing of the ACMA's decision on the application.
(3) The ACMA must:
(a) notify the applicant in writing of the ACMA's decision under subclause (2); and
(b) do so within 2 business days after the day on which the decision is made.
(1) The ACMA may request the applicant to give the ACMA, within the period specified in the request, further information about the application.
(2) The ACMA may refuse to consider the application until the applicant gives the ACMA the information.
Grant
(1) After considering the application, the ACMA may grant the applicant a non - protection zone installation permit authorising the installation, in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory, of the submarine cable or cables specified in the application.
Refusal
(3) After considering the application, the ACMA may refuse to grant a non - protection zone installation permit.
(4) If the ACMA refuses to grant the permit, it must notify the applicant in writing of the ACMA's decision and the reasons for the decision.
(1) Before making a decision on the application for a non - protection zone installation permit, the ACMA must consult:
(a) the Secretary of the Attorney - General's Department; and
(aa) the Home Affairs Secretary; and
(b) any other persons the ACMA considers relevant.
(2) Within 2 business days after the day on which the ACMA received the application, the ACMA must give each of the Secretaries mentioned in paragraphs (1)(a) and (aa) a copy of the application.
(3) Within 15 business days after the day on which a Secretary receives a copy of the application, that Secretary must:
(a) give a written notice to the ACMA stating that, while the notice remains in force, the ACMA must not grant the permit; or
(b) make a submission to the ACMA; or
(c) give a written notice to the ACMA stating that he or she does not require any further consultation about the application.
Notice to the ACMA under paragraph (3)(a)
(4) The ACMA must not grant the permit while a notice is in force under paragraph (3)(a).
(5) Unless sooner revoked, a notice under paragraph (3)(a) remains in force during the period specified in the notice.
(6) The period specified under subclause (5) must not be longer than 3 months.
(7) A Secretary who gives a notice under paragraph (3)(a) may, by written notice given to the ACMA, extend, or further extend, the period referred to in subclause (5), so long as the extension, or further extension, does not result in the notice under paragraph (3)(a) being in force for longer than 12 months.
(8) A Secretary who gives a notice under paragraph (3)(a) may revoke the notice by giving the ACMA a further written notice.
(9) Within 2 business days after the day on which the ACMA received a notice under paragraph (3)(a) or subclause (7), the ACMA must give the applicant a copy of the notice.
Submission to the ACMA
(10) If a notice under paragraph (3)(a) is in force, the Secretary who gave the notice may make a submission to the ACMA.
(11) A written submission to the ACMA under paragraph (3)(b) or subclause (10) may include:
(a) recommendations about the conditions that should be specified in the permit under paragraph 73A(1)(c) or (d) of this Schedule; or
(b) such other matters (if any) as the Secretary making the submission considers relevant.
Notice to the ACMA under paragraph (3)(c)
(12) A notice under paragraph (3)(c) cannot be revoked.
71 Matters to which the ACMA must have regard in making a decision about a permit
In deciding whether to grant a non - protection zone installation permit, the ACMA must have regard to:
(a) the objective of facilitating the supply of efficient, modern and cost - effective carriage services to the public; and
(aa) if the Secretary of the Attorney - General's Department or the Home Affairs Secretary makes a submission to the ACMA under clause 70--that submission; and
(c) any relevant technical and economic aspects of the installation; and
(d) whether the installation involves co - location of the submarine cable or cables to which the application relates with one or more other submarine cables; and
(e) any other matters that the ACMA considers relevant.
72A Refusal of permit--security
(1) If the Home Affairs Minister, after consulting the Prime Minister and the Minister administering this Act, considers that the grant of a non - protection zone installation permit to a particular carrier would be prejudicial to security, the Home Affairs Minister may give a written direction to the ACMA not to grant a non - protection zone installation permit to the carrier.
(2) The ACMA must comply with a direction under subclause (1).
(3) While a direction is in force under this clause:
(a) the ACMA cannot reconsider a non - compulsory refusal to grant a non - protection zone installation permit to the carrier; and
(b) the Administrative Appeals Tribunal cannot consider an application for review of a non - compulsory refusal to grant a non - protection zone installation permit to the carrier.
(4) If an application for a non - protection zone installation permit is pending at the time when the Home Affairs Minister gives a direction to the ACMA under this clause, then the application lapses.
(5) In this clause:
"non-compulsory refusal" means a refusal to grant a non - protection zone installation permit, other than a refusal that is required by this clause.
73 Timing of decision on application
Further information requested
(1) If:
(a) a carrier applies for a non - protection zone installation permit; and
(b) the ACMA requests the applicant to give the ACMA further information under subclause 68(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c) 60 business days; or
(d) if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 90 business days)--that number of business days;
after the day on which the applicant gave the ACMA the information.
No further information requested
(2) If:
(a) a carrier applies for a non - protection zone installation permit; and
(b) the ACMA does not request the applicant to give the ACMA further information under subclause 68(1) in relation to the application;
the ACMA must take all reasonable steps to ensure that a decision is made on the application within:
(c) 60 business days; or
(d) if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 90 business days)--that number of business days;
after the day on which the application was made.
Extension for change in circumstances relating to application
(3) If:
(a) a carrier applies for a non - protection zone installation permit; and
(b) the carrier notifies the ACMA of a change in circumstances under subclause 67A(1); and
(c) the ACMA decides under subclause 67A(2) that the change should not be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by 5 business days.
(4) If:
(a) a carrier applies for a non - protection zone installation permit; and
(b) the carrier notifies the ACMA of a change in circumstances under subclause 67A(1); and
(c) the ACMA decides under subclause 67A(2) that the change should be treated as a material change in circumstances for the purposes of this clause;
the number of business days referred to in subclause (1) or (2) of this clause is extended by:
(d) 60 business days; or
(e) if the ACMA, by written notice given to the applicant, specifies a greater number of business days (not exceeding 90 business days)--that number of business days.
Extension where notice preventing grant of permit is in force
(5) If:
(a) a carrier applies for a non - protection zone installation permit; and
(b) the Secretary of the Attorney - General's Department or the Home Affairs Secretary gives a notice to the ACMA under paragraph 70(3)(a) of this Schedule in relation to the application;
the number of business days referred to in subclause (1) or (2) of this clause is extended by one business day for each business day in the period during which the notice remains in force.
(1) A non - protection zone installation permit held by a carrier is subject to the following conditions:
(a) a condition that the relevant cable or cables must be installed within:
(i) 926 metres of the route or routes specified by the ACMA in the permit; or
(ii) if the ACMA specifies another distance in the permit--that distance of the route or routes specified by the ACMA in the permit;
(b) a condition that the carrier, or a person acting on behalf of the carrier, must not install the relevant cable or cables unless all Commonwealth regulatory approvals have been obtained for the installation;
(c) such conditions (if any) in relation to security as the ACMA specifies in the permit;
(d) such conditions (if any) in relation to the installation of the relevant cable or cables as the ACMA specifies in the permit.
Variation of conditions
(2) The ACMA may, by written notice given to the holder of a non - protection zone installation permit:
(a) vary a condition covered by paragraph (1)(a) by:
(i) specifying a distance; or
(ii) varying a distance; or
(b) vary a condition covered by paragraph (1)(c) or (d).
A non - protection zone installation permit is in force for a period of 18 months from the day the permit is granted.
The holder of a non - protection zone installation permit may, at any time, surrender the permit by written notice given to the ACMA.
(1) Before a non - protection zone installation permit expires, the holder of the permit may apply to the ACMA to extend the duration of the permit for a further 180 days.
(2) The holder must give the ACMA reasons for requesting to extend the duration of the permit.
(3) If the ACMA refuses the application, the ACMA must give the holder written notice of the ACMA's decision and the reasons for the decision.
77 Suspension or cancellation of permit
(1) The ACMA may suspend or cancel a non - protection zone installation permit by written notice to the holder of the permit, if the ACMA is satisfied that:
(a) the holder has breached a condition to which the permit is subject; or
(b) the holder has not complied with a condition of the Code of Practice in force under clause 15 of Schedule 3 that applies to the installation of submarine cables.
(2) Before a permit is suspended or cancelled under subclause (1):
(a) the ACMA must give the holder 30 days' written notice of the ACMA's intention to suspend or cancel the permit and the ground or grounds on which the ACMA intends to do so; and
(b) the ACMA must give the holder an opportunity to submit to the ACMA any matters that the holder wishes the ACMA to take into account in deciding whether to suspend or cancel the permit; and
(c) the ACMA must take into account any matters submitted by the holder under paragraph (b) and any action taken by the holder to address the ACMA's concerns or to prevent the recurrence of similar circumstances.
Division 4 -- Conditions applicable to the installation of submarine cables
78 Application of this Division
(1) This Division applies to the installation of an international submarine cable:
(a) in a protection zone; or
(b) in Australian waters, other than coastal waters of a State or Territory;
by or on behalf of a carrier.
Note: A Code of Practice made under subclause 15(1) of Schedule 3 may impose conditions in addition to the conditions imposed in this Division.
(2) This Division applies to the installation of a domestic submarine cable in a protection zone by, or on behalf of, a carrier.
Note: A Code of Practice made under subclause 15(1) of Schedule 3 may impose conditions in addition to the conditions imposed in this Division.
79 Installation to do as little damage as practicable
The carrier must ensure that all reasonable steps are taken to ensure that the installation causes as little detriment and inconvenience, and as little damage, as is practicable.
80 Management of installation activities
The carrier must ensure that all reasonable steps are taken:
(a) to act in accordance with good engineering practice; and
(b) to protect the safety of persons and property; and
(c) to protect the environment.
81 Compliance with industry standards
The carrier must ensure that the installation is done in accordance with any standard that:
(a) relates to installation; and
(b) is recognised by the ACMA as a standard for use in the telecommunications industry; and
(c) is likely to reduce a risk to the safety of the public if the carrier complies with the standard.
82 Compliance with international agreements
The carrier must ensure that the installation is done in a manner that is consistent with Australia's obligations under a listed international agreement that is relevant to the installation.
83 Conditions specified in the regulations
The carrier must ensure that the installation complies with any conditions that are specified in the regulations.
83A Attorney - General's consent required for certain enforcement proceedings
(1) An application for an injunction under section 564 must not be made without the written consent of the Attorney - General if:
(a) the injunction is in relation to a contravention by a carrier of the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to this Division; and
(b) the carrier is a foreign national; and
(c) the contravention occurred, is occurring, or is to occur, outside Australia; and
(d) the contravention did not involve an Australian ship.
(2) A proceeding for the recovery of a pecuniary penalty under section 571 must not be instituted without the written consent of the Attorney - General if:
(a) the proceeding is in respect of a contravention by a carrier of the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to this Division; and
(b) the carrier is a foreign national; and
(c) the contravention occurred outside Australia; and
(d) the contravention did not involve an Australian ship.
(3) In deciding whether to consent under subclause (1) or (2), the Attorney - General must have regard to the obligations of Australia under international law, including obligations under any agreement between:
(a) Australia; and
(b) another country or countries.
Division 5 -- Offences in relation to installation of submarine cables
84 Installing an international submarine cable without a permit
(1) A person commits an offence if:
(a) the person installs, or causes to be installed, an international submarine cable; and
(b) the cable is installed:
(i) in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory; or
(ii) in a protection zone; and
(c) the person does not have a permit under this Part authorising the installation of the cable in the place in which it is installed.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability , see section 6.1 of the Criminal Code .
(3) Subclause (1) does not apply to a person who installs an international submarine cable on behalf of a carrier, if the carrier has a permit authorising the installation of the cable.
Note: The defendant bears an evidential burden in relation to the matters in subclause (3). See subsection 13.3(3) of the Criminal Code .
84A Installing a domestic submarine cable without a permit
(1) A person commits an offence if:
(a) the person installs, or causes to be installed, a domestic submarine cable; and
(b) the cable is installed in a protection zone; and
(c) the person does not have a permit under this Part authorising the installation of the cable in the place in which it is installed.
(2) Strict liability applies to paragraph (1)(b).
Note: For strict liability, see section 6.1 of the Criminal Code .
(3) Subclause (1) does not apply to a person who installs a domestic submarine cable on behalf of a carrier, if the carrier has a permit authorising the installation of the cable.
Note: The defendant bears an evidential burden in relation to the matters in subclause (3). See subsection 13.3(3) of the Criminal Code .
(4) Subclause (1) does not apply to a domestic submarine cable that a person installed, or began to install, before the commencement of this clause.
Note: The defendant bears an evidential burden in relation to the matters in subclause (4). See subsection 13.3(3) of the Criminal Code .
85 Breaching conditions of a permit
(1) A carrier commits an offence if:
(a) the carrier holds a permit under this Part authorising the installation of a submarine cable; and
(b) the carrier, or a person acting on behalf of the carrier, engages in conduct; and
(c) the conduct breaches a condition of the permit.
(2) A proceeding for an offence committed by a person against subclause (1) must not be commenced without the written consent of the Attorney - General if:
(a) the person is a foreign national; and
(b) the offence involved an act or omission outside Australia; and
(c) the offence did not involve an Australian ship.
(3) In deciding whether to consent under subclause (2), the Attorney - General must have regard to the obligations of Australia under international law, including obligations under any agreement between:
(a) Australia; and
(b) another country or countries.
(1) The ACMA may direct a carrier to remove an international submarine cable if:
(a) the carrier installed the submarine cable, or caused it to be installed, in a protection zone or in Australian waters without a permit under this Part authorising the installation; or
(b) the carrier is installing the submarine cable, or causing it be installed, in a protection zone or in Australian waters without a permit under this Part authorising the installation.
(2) A carrier who does not comply with a direction under subclause (1) commits an offence.
(3) The ACMA must not give a direction to a carrier under subclause (1) in relation to an international submarine cable that the carrier installed, or began to install, before the commencement of this Schedule.
86A Failing to comply with ACMA direction to remove an unlawfully installed domestic submarine cable
(1) The ACMA may direct a carrier to remove a domestic submarine cable if:
(a) the carrier installed the submarine cable, or caused it to be installed, in a protection zone without a permit under this Part authorising the installation; or
(b) the carrier is installing the submarine cable, or causing it to be installed, in a protection zone without a permit under this Part authorising the installation.
(2) A carrier who does not comply with a direction under subclause (1) commits an offence.
(3) The ACMA must not give a direction to a carrier under subclause (1) in relation to a domestic submarine cable that the carrier installed, or began to install, before the commencement of this clause.
(1) If a person suffers financial loss or damage because of anything done by a carrier under this Schedule 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, water and other things.
(3) In this clause:
"court of competent jurisdiction" , in relation to property, includes the Federal Court.
88 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 submarine cable; and
(b) the acquisition of property would not be valid, apart from this section, 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 87.
(4) In this clause:
"acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.
89 Delegation by the Secretary of the Attorney - General's Department
(1) The Secretary of the Attorney - General's Department may, by writing, delegate any or all of his or her powers under this Schedule to an SES employee, or acting SES employee, in the Attorney - General's Department.
(2) A delegate must comply with any directions of the Secretary of the Attorney - General's Department.
90 Delegation by the Home Affairs Secretary
(1) The Home Affairs Secretary may, by writing, delegate any or all of his or her powers under this Schedule to an SES employee, or acting SES employee, in the Home Affairs Department.
(2) A delegate must comply with any directions of the Home Affairs
Secretary.