Commonwealth Coat of Arms of Australia

Telecommunications Legislation Amendment Act 2019

No. 6, 2019

An Act to amend legislation relating to telecommunications, and for other purposes

[Assented to 1 March 2019]

The Parliament of Australia enacts:

This Act is the Telecommunications Legislation Amendment Act 2019.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this Act	The day after this Act receives the Royal Assent.	2 March 2019

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Access to a telecommunications transmission tower owned or operated by an NBN corporation etc.

National Broadband Network Companies Act 2011

1 Section 5

Insert:

telecommunications transmission tower has the same meaning as in Part 5 of Schedule 1 to the Telecommunications Act 1997.

2 After Subdivision B of Division 2 of Part 2

Insert:

Subdivision BA—Access to a telecommunications transmission tower owned or operated by an NBN corporation etc.

19A Access to a telecommunications transmission tower

(1) If a telecommunications transmission tower (the first tower) is owned or operated by an NBN corporation, the NBN corporation must, if requested to do so by an eligible person, give the eligible person access to the first tower if:

(a) the access is for the sole purpose of enabling the eligible person to:

(i) install particular equipment on the first tower; or

(ii) maintain, operate or remove particular equipment installed by the eligible person on the first tower; and

(b) in a case where subparagraph (a)(i) applies—the NBN corporation is satisfied that the installation of the equipment is technically feasible; and

(i) subparagraph (a)(i) applies; and

(ii) there is another telecommunications transmission tower in the vicinity of the first tower that is not owned or operated by the NBN corporation;

the NBN corporation is reasonably satisfied that it would not be reasonable for the eligible person to install the equipment on the other tower.

Note 1: For eligible person, see section 19H.

Note 2: For equipment, see section 19G.

Note 3: See section 19C (reasonableness).

Exemptions from sections 9, 18 and 19

(2) If the NBN corporation gives the eligible person access to the first tower in compliance with subsection (1), sections 9, 18 and 19 do not apply to:

(a) the giving of access; or

(b) the supply to the eligible person of goods that are incidental to the giving of access.

Limits on subsection (1) obligation

(3) Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

(a) preventing an NBN corporation from reserving sufficient space on the first tower to be able to meet the NBN corporation’s reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made;

(b) preventing a person (other than an NBN corporation) who has already installed equipment on the first tower from obtaining access to sufficient space on the first tower to be able to meet the person’s reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made;

(4) For the purposes of paragraph (3)(c), protected contractual right means a right under a contract that was in force at the commencement of this section.

(5) Subsection (1) does not impose an obligation to give an eligible person access to the first tower if:

(a) the eligible person is included in a class of persons specified under paragraph 19H(2)(a); and

(b) the imposition of the obligation would be inconsistent with a limitation or restriction that, under paragraph 19H(2)(b), is applicable to that class.

Exemption from compliance with subsection (1)—Ministerial determination

(6) The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied.

Technically feasible

(7) For the purposes of this section, in determining whether it is technically feasible to install particular equipment on a telecommunications transmission tower, an NBN corporation must have regard to:

(a) whether the installation of the equipment is likely to result in significant difficulties of a technical or engineering nature; and

(b) whether the installation of the equipment is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

(c) if the installation of the equipment is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

(i) changing the configuration or operating parameters of a facility situated on the tower; and

(ii) making alterations to the tower; and

(d) such other matters (if any) as are relevant.

(8) For the purposes of subsection (7), facility has the same meaning as in the Telecommunications Act 1997.

19B Access to the site of a telecommunications transmission tower

(1) If:

(a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site, and:

(i) the site is owned, occupied or controlled by the NBN corporation; or

(ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and

(b) the NBN corporation is or was required by subsection 19A(1) to give an eligible person access to the tower for the purpose of enabling the eligible person to:

(i) install particular equipment on the tower; or

(ii) maintain, operate or remove particular equipment installed by the eligible person on the tower;

the NBN corporation must, if requested to do so by the eligible person:

(i) install the equipment on the tower; or

(ii) maintain, operate or remove the equipment installed by the eligible person on the tower; and

(d) give the eligible person access to the site for the sole purpose of enabling the eligible person to:

(i) install particular equipment on the site, where that equipment is for use in connection with the equipment mentioned in paragraph (b); or

(ii) maintain, operate or remove the equipment first mentioned in subparagraph (i).

Note 1: For eligible person, see section 19H.

Note 2: For site, see section 19J.

Note 3: For equipment, see section 19G.

Exemptions from sections 9, 18 and 19

(2) If the NBN corporation gives the eligible person access to the site in compliance with subsection (1), sections 9, 18 and 19 do not apply to:

(a) the giving of access; or

(b) the supply to the eligible person of goods that are incidental to the giving of access.

Exemption from compliance with subsection (1)—Ministerial determination

(3) The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied.

19C Reasonableness—Ministerial determinations

(1) The Minister may, by legislative instrument:

(a) determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken to be reasonable for an eligible person to install equipment on a telecommunications transmission tower; or

(b) determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken not to be reasonable for an eligible person to install equipment on a telecommunications transmission tower.

Note: For eligible person, see section 19H.

(2) A determination under subsection (1) must be an instrument of a legislative character.

19D Publication of access terms and conditions—towers

(1) If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must publish on its website:

(a) the terms and conditions relating to price or a method of ascertaining price; and

(b) other terms and conditions;

on which the NBN corporation offers to:

(c) give an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to:

(i) install particular equipment; or

(ii) maintain, operate or remove particular equipment; and

(d) supply to an eligible person goods that are incidental to the giving of that access.

Note: For eligible person, see section 19H.

(2) If:

(a) a telecommunications transmission tower is owned or operated by an NBN corporation; and

(b) an eligible person requests the NBN corporation to:

(i) give the eligible person access to the tower; or

(ii) supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and

(c) as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and

(d) in accordance with subsection (1), the NBN corporation has published on its website:

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which the NBN corporation offers to give access to the tower or supply the goods, as the case requires; and

(e) the eligible person requests the NBN corporation to enter into an agreement that:

(i) relates to the access to the tower or the supply of the goods, as the case requires; and

(ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (d);

the NBN corporation must comply with the request mentioned in paragraph (e).

(3) If:

(a) a telecommunications transmission tower is owned or operated by an NBN corporation; and

(b) an eligible person requests the NBN corporation to:

(i) give the eligible person access to the tower; or

(ii) supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and

(c) as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and

(d) the access to the tower, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person;

the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation’s website, in accordance with subsection (1), at the time when the request was made.

19E Publication of access terms and conditions—sites

(1) If:

(a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

(b) either:

(i) the site is owned, occupied or controlled by the NBN corporation; or

(ii) the NBN corporation has a right (whether conditional or unconditional) to use the site;

the NBN corporation must cause to be published on its website:

(d) other terms and conditions;

on which it offers to:

(e) give an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to:

(i) install particular equipment; or

(ii) maintain, operate or remove particular equipment; and

(f) supply to an eligible person goods that are incidental to the giving of that access.

Note 1: For site, see section 19J.

Note 2: For eligible person, see section 19H.

(2) If:

(a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

(b) either:

(i) the site is owned, occupied or controlled by the NBN corporation; or

(ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and

(i) give the eligible person access to the site; or

(ii) supply to the eligible person goods that are incidental to giving the eligible person access to the site; and

(d) as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and

(e) in accordance with subsection (1), the NBN corporation has published on its website:

(i) the terms and conditions relating to price or a method of ascertaining price; and

(ii) other terms and conditions;

on which the NBN corporation offers to give access to the site or supply the goods, as the case requires; and

(f) the eligible person requests the NBN corporation to enter into an agreement that:

(i) relates to the access to the site or the supply of the goods, as the case requires; and

(ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (e);

the NBN corporation must comply with the request mentioned in paragraph (f).

(3) If:

(a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

(b) either:

(i) the site is owned, occupied or controlled by the NBN corporation; or

(ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and

(i) give the eligible person access to the site; or

(ii) supply to the eligible person goods that are incidental to giving the eligible person access to the site; and

(d) as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and

(e) the access to the site, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person;

19F Terms and conditions of access to be on a non‑discriminatory basis

Telecommunications transmission towers

(1) If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must not, in determining:

(a) the terms and conditions relating to price or a method of ascertaining price; and

(b) other terms and conditions;

on which the NBN corporation:

(c) gives an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to:

(i) install particular equipment; or

(ii) maintain, operate or remove particular equipment; and

(d) supplies to an eligible person goods that are incidental to the giving of that access;

discriminate between eligible persons who seek or obtain access in such circumstances.

Note: For eligible person, see section 19H.

Sites

(2) If:

(a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

(b) either:

(i) the site is owned, occupied or controlled by the NBN corporation; or

(ii) the NBN corporation has a right (whether conditional or unconditional) to use the site;

the NBN corporation must not, in determining:

(d) other terms and conditions;

on which the NBN corporation:

(e) gives an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to:

(i) install particular equipment; or

(ii) maintain, operate or remove particular equipment; and

(f) supplies to an eligible person goods that are incidental to the giving of that access;

discriminate between eligible persons who seek or obtain access in such circumstances.

19G Equipment

(1) For the purposes of this Subdivision, equipment means:

(a) a facility (within the meaning of the Telecommunications Act 1997); or

(b) an antenna; or

(d) an apparatus; or

(e) a thing that belongs to a class of things specified under subsection (2).

(2) The Minister may, by legislative instrument, specify one or more classes of things for the purposes of paragraph (1)(e).

19H Eligible person

(1) For the purposes of this Subdivision, eligible person means:

(a) a police force or service; or

(b) a fire service; or

(d) a State or Territory emergency services organisation; or

(e) a person who is included in a class of persons specified under paragraph (2)(a).

(2) The Minister may, by legislative instrument, do any or all of the following:

(a) specify one or more classes of persons for the purposes of paragraph (1)(e);

(b) for a class specified under paragraph (a)—declare that one or more specified limitations or restrictions are applicable to that class for the purposes of subsection 19A(5).

(3) The Minister must not make a legislative instrument under subsection (2) unless the Minister is satisfied that it is in the public interest to do so.

(4) Before making a legislative instrument under subsection (2), the Minister must consult the Minister who administers the Australian Federal Police Act 1979.

19J Site

For the purposes of this Subdivision, site means:

(a) land; or

(b) a building on land; or

19K Goods

For the purposes of this Subdivision, goods includes electricity.

3 Section 37

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

4 Subsection 38(2)

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

5 Section 39

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

6 Section 40

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

Schedule 2—Temporary facilities

Telecommunications Act 1997

1 Clause 2 of Schedule 3

Insert:

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:

(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.

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.

2 Paragraphs 6(5)(a) and (b) of Schedule 3

Repeal the paragraphs, substitute:

(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

(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;

(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;

(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;

(vi) 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.

3 After subclause 6(5) of Schedule 3

Insert:

(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;

(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.

4 After subclause 7(3) of Schedule 3

Insert:

(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.

5 After clause 8 of Schedule 3

Insert:

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.

8C Low‑impact facility installed to provide additional capacity during a high‑demand holiday period—annual limit

(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.

6 Clause 9 (heading) of Schedule 3

Repeal the heading, substitute:

9 Carrier to restore land—general

7 After clause 9 of Schedule 3

Insert:

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

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

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.

8 At the end of clause 17 of Schedule 3

Add:

(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.

Schedule 3—Further amendments

Part 1—Amendment relating to transmitter licence refunds

Radiocommunications Taxes Collection Act 1983

1 Paragraph 10C(2)(d)

After “transmitter licence”, insert “during the financial year ending on 30 June 2017”.

Part 2—Amendments relating to broadcasting licensee support payments

Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017

2 Item 40 of Schedule 6 (cell at table item 3, column headed “Company”)

Repeal the cell, substitute:

Network Investments Pty Ltd

3 At the end of Part 3 of Schedule 6

Add:

43 Modified operation of Part

This Part has effect in relation to Network Investments Pty Ltd (see table item 3 of the table in item 40) as if:

(a) the designated day for the financial year beginning on 1 July 2017 were the day that is 28 days after the day on which this item commences; and

(b) paragraph 39(1)(c) did not apply; and

(c) the reference to 1 November 2017 in subitem 39(2) were a reference to the day that is 28 days after the day on which this item commences.

[Minister’s second reading speech made in—

Senate on 25 June 2018

House of Representatives on 14 February 2019]

(118/18)