Bills Digest No. 21 2005–06
Telecommunications and Other Legislation Amendment
(Protection of Submarine Cables and Other Measures) Bill
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Telecommunications and Other
Legislation Amendment (Protection of Submarine Cables and Other
Measures) Bill 2005
Date Introduced: 23 June 2005
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
Sections 1 to 3 and Schedule 2 commence on the day the Act receives
Royal Assent. Part 1 of Schedule 1 commences 28 days after the day
the Act receives Royal Assent. Part 2 of Schedule 1 will not
commence as the changes were made redundant by the commencement of
section 6 of the Australian Communications and Media Authority
Act 2005 on 1 July 2005.
The Bill amends the Submarine
Cables and Pipelines Protection Act 1963 and the
Telecommunications Act 1997, by inserting a whole new set
of legislative provisions, aiming to protect submarine cables.
The proposed amendments will:
Establish protection zones over cables of national
Prohibit or restrict certain activities within those protection
Provide criminal penalties for persons engaged in those
prohibited and restricted activities;
Grant responsibility to the Australian Communications and Media
Authority (ACMA)(1) for the authorisation and regulation
process, and for the installation of submarine cables; and
Establish a carrier-based compensation regime that does not
offend Constitutional provisions regarding acquisition of property
on just terms. (2)
The Hon. Warren Entsch, MP, Parliamentary Secretary to the
Minister for Industry, Tourism and Resources, introduced the Bill
to the House of Representatives, and commented that the Bill was a
response to the recommendations and several incidents of damage to
important submarine cables in recent years:
The protection regime for telecommunications submarine cables
established by this bill provides a comprehensive and transparent
process for the protection of cables of national significance. It
will significantly reduce the risk of damage to the cables through
the high penalty provisions. It will provide benefits to the
fishing industry and other users of the sea and seabed by
clarifying the responsibilities of both carriers and users, and by
encouraging co-location of telecommunications
The National Bandwidth Inquiry(4) examined Australia
s regulatory framework for submarine cables and made the following
To strengthen the planning and protection regime of submarine
To authorise the explicit installation of submarine cables;
To provide increased penalties for damage to cables; and
To develop any new provisions in consultation with other
stakeholders including fishing, shipping and other maritime
agencies, environmental and relevant State and Territory
Clause 3 of the Bill, defines submarine cables to be part of a
line link that lies beneath Australian waters, laid for the purpose
of connecting Australia with countries overseas.(6) Line
links are physical mediums such as wire, optical fibre etc. that
serve as a continuous artificial guide to carry communications by
Ninety-five percent of international telecommunications traffic
to and from Australia is routed via submarine cables.(8)
Submarine cables carry mostly voice and in some instances, data
traffic. Reliance on submarine cables for international
communications is likely to increase over the next five
The cables are vulnerable to damage. Fishing activities,
particularly certain procedures involving trawling or dredging
equipment, are most likely to damage submarine cables in place,
although anchoring, mining and other seabed activities could also
cause damage.(10) Note that more than eight percent of
repairs to submarine cables occur at depth of less than 1000
metres, and are due to external factors relating to faults
intrinsic to the cable itself.(11) Nonetheless, repair
and replacement costs, and the effects of disruption to
telecommunications, outweigh the inconvenience to fishing or
commercial shipping operators in restricting fishing or anchoring
in cable and pipeline protection areas.(12)
The enforcement of the provisions of the Bill will be the
responsibility of the Australian Federal Police.(13) In
contrast, New Zealand has specified enforcement and cable
protection officers that are drawn from the ranks of their police
and navy.(14) Additionally, the New Zealand scheme
completely prohibits all activities such as commercial fishing in a
protection zone whereas the Australian regime restricts activities
in order to balance protection interests with the activities of the
other commercial users of the sea.
In 2001, the ALP Leader Kim Beazley endorsed the National
Bandwidth Inquiry s recommendations.(15)
As mentioned above, the Bill provides for an authorisation and
regulation process for the installation of submarine cables. This
measure would be of benefit to cable owners, both new and existing.
Labour Shadow Minister for Communications, Stephen Smith outlined
in 1999, that new carriers have to pay large upfront fees to use
the infrastructure.(16) Additionally, Mr. Smith noted
Encouraging investment in international bandwidth
capacity is an important step in ensuring Australia s success in
the age of information It will contribute towards a more robust and
internationally competitive communications
Item 1 repeals and replaces subsection 5(1) of
the Submarine Cables and Pipeline Protection Act 1963 with
the effect that that Act will not apply to submarine cables in
protection zones installed under the authority of this Bill. Other
submarine cables of less national significance will still be
governed by the 1963 Act.
Item 2 inserts new
Part 24A into the Telecommunications Act
1997, which in turn provides for the new Schedule
3A to come into effect.
Clause 4 allows the ACMA(18) to
declare a protection zone in relation to one or more submarine
cables in Australian waters. The term Australian waters is defined
as meaning waters of the territorial sea ; waters of the exclusive
economic zone and sea above that part of the continental shelf of
Australia that is beyond the limits of the exclusive economic
Clause 4 provides that a declaration is a legislative instrument
for the purposes of the Legislative Instruments Act 2003.
It will therefore be required to be registered on the Federal
Register of Legislative Instruments, tabled in both Houses of
Parliament within six sitting days, and be subject to Parliamentary
disallowance. It would also be subject to judicial review under
section 39B of the Judiciary Act 1903 by the Federal Court
or High Court.
The territorial waters of Australia extend 12 nautical miles
from the territorial sea baseline.(19) The territorial
waters of Australia will include the coastal waters of a State or
Territory. Coastal waters are generally the first three nautical
miles of the territorial sea adjacent to each State and
Territory.(20) Note that Commonwealth has sovereignty
and title at international law over Australian waters . Under
domestic law the States have jurisdiction over the coastal waters
.(21) The exclusive economic zone of Australia extends
200 nautical miles from the territorial sea
baseline.(22) The continental shelf is defined to mean
the natural prolongation of a coastal state s land territory to the
outer edge of the continental margin, or a distance of 200 nautical
miles from the territorial sea baseline, whichever is the
Clause 5 allows the declaration of a protection
zone at the request of a person or on the ACMA s own initiative.
For example, carriers can initiate the declaration process.
Under Clause 7 ACMA develops a protection zone
proposal in response to a request from a person. If subsequently,
ACMA decides not to declare a protection zone, then ACMA must
notify the person in writing providing the reasons for its
decision. The Explanatory Memorandum comments that this
decision may be subject to judicial review however, it is not
reviewable on its merits by the AAT.(24)
If ACMA develops a protection zone proposal and then, decides to
declare a protection zone that is different from the request, ACMA
must provide the person with a copy of the declaration.
ii) Prohibited Activities within a Protection Zone
Clause 10 prohibits activities that are likely
to result in a physical connection between a ship or other object
and the sea bed, potentially causing serious damage to a cable.
These activities include fishing using equipment such as nets,
trawl gear, traps or dredges. Trawl gear is towed behind a vessel
and some vessels pull heavy equipment across the sea bottom, which
can cause damage to cables.(25) Traps are stationary
structures, usually fixed to the bottom in shallow water with
anchors or stakes.(26) Dredges are of various
kinds.(27) An example is fishing dredges which are
dragged across the bottom and used to collect clams and scallops in
a rigid frame or mesh bag.(28)
Additionally, towing, operating or suspending items (such as
net, line, rope, chains) from a ship in a protection zone are also
included in the list of prohibited activities. The clause also
prohibits anchoring a ship; mining activities and the use of mining
techniques; sand mining; and exploiting or exploring for resources
for instance exploiting and exploring for petroleum.
Note that subparagraph 10(4)(g) enables the ACMA to prohibit
activities dangerous to submarine cables in the future.
iii) Restricted Activities within a Protection Zone
The focus of clause 11 is on activities that
are less likely to result in physical contact between a ship or
other object and the seabed.(29) Nonetheless, if contact
does occur, the result is physical damage to a
cable.(30) Hence, the activities in this clause are
restricted but not prohibited. Restricted activities include types
of fishing that use equipment, designed to lie above the seabed.
This includes fishing or towing, operating or suspending from a
ship, using equipment such as nets that are above the seabed at all
times. Additionally, fishing using a line from the ship or the
shore also falls within the scope of a restricted
Restrictions may also be placed on the installation, removal or
maintenance of electricity cables, oil or gas pipelines and any
like cables. Additionally, the ACMA may also impose restrictions on
the construction, maintenance and removal of installations for the
use of ships such as a wharf, or of a navigational aid such as a
Note that subparagraph 11(3)(g) enables the ACMA to prohibit
activities dangerous to submarine cables in the future.
iv) Prerequisites and procedures for the development of a
Clause 15 specifies that before the ACMA
declares a protection zone it must develop a proposal for the
declaration of the zone. Subclause (3) provides that a proposal is
not a legislative instrument.
Clause 16 provides that the ACMA must refer any
proposal to an advisory committee.
According to Clause 49 the composition of an
advisory committee is to be up to 12 members. The appointees are to
include representatives of the Commonwealth, interested State or
the Northern Territory, interested Commonwealth, State or Territory
authorities or instrumentalities, interested industries or interest
groups. Subclause (3) defines interested as having concerns or
interests that are affected by the proposal, that the advisory
committee is to consider or those likely to be affected should the
protection zone be declared, varied or revoked.
Clause 17 outlines that the ACMA must invite
public submissions about the proposal. Additionally, the proposal
is to be published in the Gazette; on the ACMA website;
and in a newspaper with general circulation in each State and
Territory, and in any affected external Territory.
Clause 18 notes that a protection zone cannot
be declared by the ACMA unless it is of national significance . The
Explanatory Memorandum mentions that the purpose behind
this criterion is to minimise the effect on other sea users whilst
protecting critical infrastructure.(33) Additionally,
the Explanatory Memorandum explains that some cables are
more important than others in terms of linking Australia with
global communications systems, for instance, the Australia-Japan
cable which links Sydney with Japan and then the
Clause 20 provides a list of factors the ACMA
must consider in order to make a decision for the declaration of a
protection zone. Examples are recommendations by the advisory
committee; submissions received from the public; public interest
specifically in relation to efficient and cost-effective
If the proposed protection zone relates to a submarine cable
that is not installed, matters to consider are impact on the
environment ; any relevant technical and economic aspect; economic
and social benefits; and whether the submarine cable is to be
co-located with other submarine cables. Additionally, subclause
20(h) equips the ACMA with a discretionary power by allowing the
body to consider any other factors that may be relevant to the
declaration of a protection zone.
With respect to environmental factors, clause
21 provides a list of environment and heritage matters to
consider for determining whether the installation of a submarine
cable, would have an impact on the environment . Additionally,
clause 19 provides that a protection zone is not
to be declared, unless the ACMA consults with the Environment
v) Variation or revocation of a protection zone
Clause 23 provides that ACMA may vary or revoke
a protection zone by legislative instrument. The Explanatory
Memorandum provides that a revocation or variation is a
legislative instrument for the purposes of the Legislative
Instruments Act 2003. This means, if a previous made
declaration is varied or revoked, it will be required to be
registered on the Federal Register of Legislative Instruments,
tabled in both Houses of Parliament and be subject to Parliamentary
disallowance and possibly judicial review under section 39B of the
Judiciary Act 1903.
Clause 24 is similar to clause
5, as mentioned above, i.e. a variation or
revocation of a declaration of a protection zone may be made on the
ACMA s own initiative or at the request of any person.
Clause 25 states that when a person requests
the ACMA to vary or revoke a protection zone, the ACMA is to notify
the carrier responsible for the submarine cable or cables in the
protection zone, as soon as practicable.
Clause 27 mentions that in response to a
request by a person, any decision that the ACMA makes in relation
to variation or declaration of a protection zone, the ACMA must
notify the person in writing providing the reasons for the
Clauses 30 32 are similar to clauses 15-17 as
mentioned above. For variation or revocation of a protection zone,
the ACMA is required beforehand to develop a proposal; refer the
proposal to the advisory committee; and to publish the proposal in
the proposed forum, as outlined above.
Clause 34 provides that in varying or revoking
a protection zone, the ACMA must have regard to recommendations of
the Advisory Committee; submissions from the public; legitimate
commercial interests of the owner of the submarine cable in the
protection zone; and if the carrier is not the owner of the cable,
then that specific carrier responsible for the cable. Note that the
ACMA may consider any other relevant matter.
Similar to clause 19, as mentioned above, clause
33 provides that the variation or revocation of protection
of a zone is not to be declared, unless the ACMA consults with the
Division 4 Offences in relation to a protection
zone in proposed Schedule 3A contains the main offence
provisions of the Bill. Subdivision A creates
substantial criminal penalties for intentionally (clause
36) or negligently (clause 37) damaging a
submarine cable in a protection zone. Strict liability (as defined
by section 6.1 of the Criminal Code) attaches to the location of
the cable in a protection zone. The penalty for damaging a cable is
up to 10 years imprisonment, or 600 penalty units, or both. The
penalty applicable for negligently damaging a cable is up to 3
years imprisonment, or 180 penalty units, or both. The master or
owner of a ship who lets the ship be used to damage a cable and is
reckless to that fact could be liable to a penalty of up to 10
years imprisonment, or 600 penalty unit, or both (clause
Clause 38 creates five defences, including that
of necessity to save a life or a ship (a), prevent pollution (b),
taking of all reasonable steps to avoid damage (c), defendant is
the owner (d) or agent (e) of the cable.
Subdivision B clause 40 creates the offence of
engaging in prohibited or restricted activities in a protection
zone if you are not the owner carrier with a permit. It carries a
maximum penalty of imprisonment for up to 5 years, or 300 penalty
units, or both. Clause 41 creates an aggravated
offence of engaging in the prescribed conduct with the intention of
making a commercial gain , drawing a penalty of imprisonment for 7
years, or 420 penalty units or both. The lists of prohibited and
restricted activities are set out in clauses 10 and
11 of Part 2, Division 2, Subdivision A. The master or
owner of a ship who lets the ship be used to engage in prohibited
or restricted conduct and is reckless to that fact could be subject
to a penalty of 5 or 7 year imprisonment, or 420 or 600 penalty
units, or both, depending on the intent to make a commercial gain
Clause 42 creates three defences in the same
terms as clause 38, (a)-(c) above.
Schedule 1 clauses 45, 46,
87 and 88 in the proposed
Schedule 3A aim to clarify that carriers bear responsibility for
any financial loss suffered by a person because of the operation of
It is a clear premise of the Bill that carriers, rather than the
Commonwealth, are liable to pay compensation for any damages
incurred as a result of this scheme.(36) Several
provisions were required in new Schedule 3A and the existing
Schedule 3 to ensure the viability of section 591 in the primary
Act, which the Government calls a constitutional safety-net .
Paragraph 51(xxxi) of the Constitution requires any acquisition of
property to be on just terms which may be found by a court to be
more than pure financial loss.
Section 591 of the Telecommunications Act 1977
provides, in effect, that the Commonwealth may be liable to pay
compensation to a person whose property is acquired through the
operation of the Act, if that acquisition would otherwise
contravene s51(xxxi) of the Constitution. It states:
591 Compensation constitutional safety net
(a) apart from this section, the operation of this
Act would result in the acquisition of property from a person
otherwise than on just terms; and
(b) the acquisition would be invalid because of
paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of
a reasonable amount to the person in respect of the
(2) If the Commonwealth and the person do
not agree on the amount of the compensation, the person may
institute proceedings in the Federal Court for the recovery from
the Commonwealth of such reasonable amount of compensation as the
Under existing clause 42 of Schedule 3 of the
Telecommunications Act 1977, a person who 'suffers
financial loss or damage' because of 'anything done by a carrier is
entitled to compensation. This clause has been the subject of
consultation, according to the Explanatory
Memorandum.(37) The Explanatory Memorandum
posits that section 591 is designed to meet any gap between this
financial loss compensation and just terms compensation, and
therefore 'ensure the viability of the Act'.(38)
Clause 45 deals with carrier responsibility for
damages arising from a submarine cable in a protection zone.
Clause 46 provides an indemnity from the carrier
for the loss of an anchor, or part of a ship lost whilst trying to
avoid damaging a cable.
Clause 87 deals with carrier responsibility for
any financial loss or damage suffered by a person in relation to
their property. Clause 88 deals with compensation
arising as the result of a carrier acquiring their property. This
could arise from the installation of infrastructure by carriers
with immunity from State and Territory planning laws, for
Schedule 2 item 2 amends existing Schedule 3 of
the Telecommunications Act 1977 in terms mirroring clause
88 to provide for carrier liability for compensating a person whose
property is acquired as a result of that Schedule (new Part
3 clause 63).
Requirements on carriers to communicate with the ACMA in
relation to matters affecting the protection zone are set out in
clause 48 (notice if carrier decommissions cable),
clauses 79-83 (conditions applicable to the
installation of cables); clause 85 (breaching
conditions of permit) and clause 86(2) (failing to
comply with ACMA direction to remove an unlawfully installed
Part 3 of proposed Schedule 3A deals with
'Permits to install submarine cables'. Clause
51 provides that a carrier may apply to the ACMA
to install a submarine cable in a protection zone in
Australian waters. This process is 'streamlined' (clause
50) and set out in clauses 52-63. A
permit lasts 18 months (clause 59).
Clause 63 provides that holding a valid permit
means the carrier is exempt from State and Territory planning laws
with some exceptions such as laws which relate to the cultural
heritage of Aboriginal or Torres Strait Islander persons
(paragraph 3) or taxation (paragraph
Clause 64 provides that a carrier may apply to
the ACMA to install a submarine cable in Australian waters
(ie not a protection zone or coastal waters).(39) The
ACMA must consult with the Environment Secretary before making a
decision about a non-protection zone installation permit
(clause 70), and must take into account certain
matters set out in clause 71 such as public
interest requirements, mirroring clause 20 above.
Under clause 72, the ACMA must also have regard to
environment and heritage considerations, which reflect those set
out in clause 21 above.
Clause 84 makes it an offence to install a
submarine cable without a permit in a protection zone, or in
Australian waters, carrying a fine of 200 penalty units.
Clause 85 makes it an offence to breach any
conditions of the permit, carrying a fine of 100 penalty units.
Clause 89 provides that the ACMA is to review
the operation of proposed Schedule 3A and report to the Minister
within 5 years after the Schedule commences. The report must then
be tabled in Parliament.
Clause 1 of the existing Schedule 4 sets out
certain decisions of the ACMA which may be
reviewed by the Administrative Appeals Tribunal following a process
of internal reconsideration by the ACMA. Item 7
adds decisions made by the ACMA as a result of the new regime to
Part 2 of Schedule 1 of the Bill deals with
amendments to the name of the agency (ie substituting ACMA for
ACMA) which was not required as the Australian Communications
and Media Authority Act 2005 received Royal Assent on
1 April 2005 and therefore commenced before this Act.
It should be noted that the former Australian Communication
Authority (ACA) is now the Australian Communications and Media
Authority (ACMA). The ACMA Act 2005 was assented
to on 1 April 2005, and its operative provisions commenced on 1
Department of Communications, Information Technology and the
Arts (DCITA), Issues: Submarine telecommunications cables available
accessed on 8 August 2005.
Warren Entsch MP, House of Representatives Debates, 23
June 2005, p. 10. See also Explanatory Memorandum, pp, 51
52 and Stephen Smith, Shadow Minister for Communications, Labor
Welcomes Taxation Incentive for Investment in Telecommunications
Capacity via Submarine Cables , Media Statement, 21
Australian Information Economy Advisory Council, National
Bandwidth Inquiry, Report of the Australian Information
Economy Advisory Council, Department of Communications, Information
Technology and the Arts, Australia, 1999, p. 182.
ibid., p. 175.
Explanatory Memorandum to the Telecommunications and
Other Legislative Amendment (Protection of Submarine Cables and
Other Measures) Bill 2005, pp 51 52.
Telecommunications Act 1997, s. 7 and s. 30, as cited
in Explanatory Memorandum, op. cit.
Australian Information Economy Advisory Council, op. cit, p.
ibid., p. 175.
ibid., p. 179.
Williams D.O., An Oversimplified Overview of Undersea Cable
Systems . European Laboratory for particle Physics (CERN). Geneva,
1999, as cited in Australian Information Economy Advisory Council,
op. cit., p. 174.
Des Ryan, Submarine Cables and Pipelines Protection Bill 1995 ,
Bills Digest, no. 143, Parliamentary Library, New
Warren Entsch, ibid., p. 3.
Des Ryan, op. cit.
Kim Beazley, Labor s Plan for Telstra and Telecommunications ,
Media Statement, 31 October 2001, p. 17.
Stephen Smith, op. cit.
The Bill refers to the ACA not the ACMA. As noted in endnote 1
above, since the time of drafting, the ACA has changed its
Explanatory Memorandum, pp. 44 45.
Australian Information Economy Advisory Council, op. cit, p.
Explanatory Memorandum, pp. 44 45.
ibid., p. 56.
ibid., p. 59.
ibid., p. 60.
ibid., p. 63.
ibid. For a map of Australian submarine cables refer to, Reach
et al, Catch fish. Not cables , Reach, NSW, December
ibid., p. 64.
ibid., p. 36.
ibid, p. 12.
ibid., p. 7.
Refer to map on, p. 5.
Raka Bhattacharya and Susan Harris Rimmer
11 August 2005
Bills Digest Service
Information and Research Services
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© Commonwealth of Australia 2005
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