On 5 December 2013, the Senate, through an amendment to the
Senate Selection of Bills Committee report, referred the provisions of the Telecommunications
Legislation Amendment (Submarine Cable Protection) Bill 2013 (the bill) to the
Senate Environment and Communications Legislation Committee (the committee) for
inquiry and report by 31 March 2014.
The Senate Selection of Bills Committee identified that the principal
issues for consideration were that:
The vulnerability of Australia's telecommunications cables
carrying international and domestic traffic to interception has been the
subject of recent reporting.
It is unclear whether the oversight mechanisms proposed are
sufficient and whether the streamlining of permits processes outlined improve
the security of this telecommunications infrastructure.
Conduct of the inquiry
In accordance with usual practice, the committee advertised the inquiry
on its website and wrote to relevant organisations inviting submissions by
15 February 2014. The committee received four submissions
relating to the bill and these are listed at Appendix 1. The submissions may be
accessed through the committee's website.
The committee agreed not to hold a public hearing for this inquiry.
However, it requested the Department of Communications to respond to written
questions on notice in relation to issues raised in submissions. The answers
received from the Department of Communications and the Attorney-General's
Department are available on the committee's website.
Purpose of the bill
Schedule 3A of the Telecommunications Act 1997 (the Act)
regulates the protection of submarine telecommunication cables that connect
Australia to other countries. The Schedule allows the Australian Communications
and Media Authority (ACMA) to declare protection zones in relation to submarine
cables. In a protection zone certain activities are prohibited and restrictions
may be imposed on other activities. A carrier who intends to install a
submarine cable in Australian waters must apply for a permit to do so from the
The ACMA undertook a review of Schedule 3A, reporting in 2010 and making
six recommendations. Five of those recommendations provide the basis of the
Australia's submarine cables carry the bulk of our international voice
and data traffic, linking Australia with other countries.
Due to their size and location on the seabed, these cables are vulnerable to
damage from activities such as the anchoring of ships, some types of fishing,
dumping of materials, dredging and mineral exploration.
Cable damage can cause data loss, significant delays, and severe financial loss
for businesses, cable owners and individuals who rely on linking to global
communication networks. Recent media reports have also highlighted the
vulnerability of submarine cables to interception by foreign intelligence
Submarine cable legislation
In 2005, in recognition of the increasing importance of submarine
cables, the Commonwealth Government introduced legislation (Telecommunications
and Other Legislation Amendment (Protection of Submarine Cables and Other
Measures) Act 2005) designed to protect the most critical of these cables. The
legislation made minor amendments to the Submarine Cables and Pipelines
Protection Act 1963 and inserted Schedule 3A to the Telecommunications
Act 1997 which established a regulatory regime under which submarine cables
are installed and protected in Australian waters.
Schedule 3A allows the ACMA to declare protection zones in Australian
waters over submarine cables of national significance.
Within protection zones, activities that could damage submarine cables are
prohibited or restricted. This includes:
the use of trawl gear that is designed to work on or near the
a net anchored to the seabed and kept upright by floats;
lowering or raising an anchor from a ship;
exploring for or exploiting resources;
mining and the use of mining techniques; and
any activity that involves a serious risk that an object will
connect with the seabed.
A protection zone may also be subject to any conditions that the ACMA
Within protection zones it is an offence to engage in prohibited
activities, damage a submarine cable or to contravene a restriction. Penalties
include fines of up to $66 000 and/or ten years imprisonment for an
individual, or up to $330 000 for a corporation.
Declaring protection zones
The declaration of a protection zone may be made on the ACMA's own
initiative or at the request of a person.
In declaring a protection zone, the ACMA must first make a preliminary decision
whether to proceed with the development of a protection zone proposal after
considering technical, economic and geographical information.
The ACMA must also consider whether the cable is of national
Three criteria are used for assessing a cable as having national significance:
whether the cable is a high capacity cable; and/or
whether the cable links Australia to another country with an
extensive telecommunications infrastructure to carry data and voice traffic to
other global destinations; and/or
whether the cable is important to national security/defence
and/or the importance of the cable to the national economy.
If the ACMA decides to proceed with the development of a protection zone
it must then develop a protection zone proposal. The proposal must include the
nominal location of the submarine cable, the area of the proposed protection
zone and details of the activities to be prohibited.
The proposal must be published in the Gazette and on the ACMA
website along with any supporting material such as a discussion paper and maps.
Notices must also be published in newspapers circulating generally in each
state and territory. Public consultation on the proposal is also to be
undertaken by the ACMA.
The ACMA must establish an advisory committee, including representatives
of key relevant stakeholder groups, to make recommendations to the ACMA on the
The ACMA must also seek advice from appropriate indigenous and native title
bodies on the proposal.
The ACMA is required to consult with the Secretary of the Department of
the Environment about a protection zone proposal.
The ACMA will seek advice from the Secretary regarding any adverse impacts on
specified environmental matters outlined in clause 21 of Schedule 3A. This
includes whether the installation, maintenance or operation of the submarine
is inconsistent with Australia's obligations under listed
could have an adverse effect on a listed threatened species,
threatened ecological community, cetaceans or listed migratory species;
could have an adverse effect on the environment;
could have an adverse effect on the ecological character of a
declared Ramsar wetland; or
could have an adverse effect on the values of a World Heritage
property or a place on the National Heritage List.
A similar process to that outlined above must be followed in the varying
or revoking of a declaration of a protection zone.
Schedule 3A of the Act obliges the ACMA to decide whether to declare a
protection zone within 12 months after the day on which the proposal was
Decisions to vary or revoke a protection zone must be made within 180 days
after the day on which the proposal was published.
In addition to the power to declare a protection zone over submarine
cables of national significance, the ACMA is given the power under Schedule 3A
to issue permits for the installation of all submarine cables.
A carrier may apply to the ACMA for a permit to install one or more
submarine cables. 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 practicable.
In addition, the carrier must ensure that all reasonable steps are taken to act
in accordance with good engineering practice, to protect the safety of persons
and property and to protect the environment.
Protection zones around submarine
cables of national significance
The ACMA has declared three submarine cable protection zones over
submarine cables of national significance. Two protection zones are located off
the Sydney coast and a third is located off the Perth coast.
In July 2007, the ACMA declared two submarine protection zones off the
the Northern Sydney Protection Zone,
which extends from Narrabeen Beach to 40 nautical miles offshore; and
the Southern Sydney Protection Zone
which extends from Tamarama and Clovelly Beach to 30 nautical miles offshore (see
Figure 1.1 below).
Each zone runs to a depth of 2000 metres.
Figure 1.1: Sydney Submarine Cable
Both protection zones came into effect on 1 October 2007 and were
developed around two cables that are regarded as nationally significant: the
Southern Cross cable (linking Australia with New Zealand, Fiji and the United
States); and the Australia-Japan cable (linking Australia with Guam, Japan and
Asia). Since the declaration of the zones, three more cables have been
installed in the Sydney area: the Gondwana-1 cable (linking Australia with New
Caledonia); the PPC-1 cable (linking Australia with Guam); and the Endeavour
cable (linking Australia with Hawaii).
There are two Defence practice areas that overlap with the Northern
Sydney Protection Zone. The ACMA and the Department of Defence signed a Memorandum
of Understanding on 22 December 2008 to address concerns about
possible damage to submarine cables in areas where submarine cable protection
zones overlap with Defence practice areas.
In September 2007, the ACMA made a declaration for a submarine cable
protection zone off the coast of Perth, which has been in effect since
1 February 2008.
The Perth Submarine Cable Protection Zone is around the SEA‑ME-WE3 cable
which links Australia to South East Asia, the Middle East and Western Europe.
The Perth Protection Zone extends from City Beach to 51 nautical miles offshore
and covers an area of up to one nautical mile on either side of the nominal
location of the SEA-ME-WE3 cable (see Figure 1.2).
Figure 1.2: Perth Submarine Cable
Review of Schedule 3A
Subclause 89(1) of Schedule 3A requires the ACMA to review the operation
of Schedule 3A and report to the Communications Minister five years after the
legislation commenced (that is, by 20 September 2010). The ACMA
commenced the statutory review on 22 December 2009 and presented its
report to the Communications Minister on 13 September 2010.
The review found that 'stakeholders are satisfied that the legislative
objectives for Schedule 3A have been met' and that 'the administrative
processes employed by the ACMA are effective and generally satisfy
The review made six recommendations in response to issues raised during the
review process (see Appendix 2 for a full list of recommendations).
Recommendation 1 relates to compliance monitoring in protection zones.
Under subclauses 17(2) and 32(2) of Schedule 3A, a proposal to declare,
vary or revoke a protection zone must be published by the ACMA in full in the Gazette,
on the ACMA website and in newspapers in circulation in the affected states and
any affected external territories. Schedule 3A requires protection zone
proposals to contain a large amount of information which make the newspaper
advertisements, often a full broadsheet newspaper page, large and expensive to
To reduce costs, the ACMA recommended that clauses 17 and 32 of
Schedule 3A be amended so that the ACMA is only required to publish a
summary of a proposal to declare, vary or revoke a protection zone.
The ACMA will ensure that all advertisements contain a website detailing where
to access a full copy of any proposal.
The recommendation was supported by a majority of the stakeholders who
submitted to the review process.
During cable installation in a protection zone, submarine cable
operators may need to make minor route adjustments due to undersea topography.
The ACMA has provided flexibility for this by applying the same condition to
all previous protection zone installation permits: that cables must be
installed within 75 metres of the route stated in the permit.
Additionally, permits stipulate that if a carrier has 'cogent' reasons, the
cable route may be varied greater than 75 metres.
According to the ACMA, to date, this condition has provided sufficient
flexibility in all but one instance, where a variation of 200 metres was
required. In that instance the carrier presented cogent reasons for relocating
The ACMA recommended that these standard conditions be introduced to
Schedule 3A by amending clause 56 so that the ACMA has the power to set
standard conditions that would apply to protection zone permits as well as the
power to set conditions on a case by case basis for individual permits.
The recommendation was supported by six out of ten stakeholders in the
review process. Four stakeholders believed that the change to the legislation
would limit flexibility.
During cable installation outside of a protection zone, carriers may
need to make small route adjustments because of undersea topography. The ACMA
has provided flexibility by applying the same condition to all non-protection
zone installation permits that cables must be installed within half a nautical
mile of the route stated in the permit. The ACMA stated that, to date, this
condition has provided sufficient flexibility when installing cables. According
to the ACMA, including this condition in the legislation would be 'administratively
more efficient and effective'.
The ACMA recommended that clause 69 of Schedule 3A be amended so that the
ACMA has the power to set standard conditions that would apply to
non-protection zone permits as well as the power to set conditions on a case by
case basis for individual permits.
Through the review process, two stakeholders suggested that elements of
Schedule 3A may be inconsistent with Article 79 of the United Nations
Convention of the Law of the Sea (UNCLOS) in that Schedule 3A asserts
jurisdiction over foreign vessels and citizens involved in submarine cable
related activities in Australian waters outside of Australia's territorial
UNCLOS is an international agreement to which Australia is a signatory.
It defines the rights and responsibilities of nations in their use of the
world's oceans, establishing guidelines for businesses, the environment, and
the management of natural resources. Article 79 of UNCLOS relates to submarine
cables and pipelines on the continental shelf.
The ACMA stated that:
...there may be an inconsistency between Schedule 3A and UNCLOS
but, in practice, the Protection Zone Declarations, made by the ACMA to date,
include the clause '...applies to the extent that it is consistent with Australia's
jurisdiction under international law', which has the effect of qualifying the
application of the Schedule 3A legislation.
The ACMA commented that it understood that 'the government is already
aware of the potential inconsistency between Schedule 3A and UNCLOS' and recommended
that the Minister take note of the concerns raised and recognise the need to
remove the potential for any inconsistency.
Through the review process, stakeholders suggested extending the
protection afforded by Schedule 3A to domestic submarine cables.
Currently Schedule 3A precludes this consideration because the submarine
cable must connect a place in Australia with a place outside of Australia.
Noting the support from stakeholders, the ACMA recommended that the
Minister take steps to amend Schedule 3A to provide for protection zones
around other submarine cables with national significance that are wholly in
Overview of the bill
Recommendations 2 to 6 provide the basis for the Telecommunications
Legislation Amendment (Submarine Cable Protection) Bill 2013. The
Government considered recommendation 1 separately and decided to rely on
existing practices to ensure protection zones are monitored.
The bill makes a number of amendments to Schedule 3A of the Telecommunications
Act 1997. The main themes of the bill are:
clarifying consistency between Schedule 3A and UNCLOS;
enabling domestic submarine cables to be brought within the scope
of the regime;
clarifying the consultation process between the ACMA and the
Attorney-General's Department on submarine cable installation permit
amendments to enhance the operation of Schedule 3A.
Clarifying consistency between
Schedule 3A and UNCLOS
To remove any inconsistency between Schedule 3A and UNCLOS, the bill proposes
to modify the application of Schedule 3A to foreign nationals and foreign
ships. The Explanatory Memorandum states that 'under the proposed amendment, it
would not be an offence for foreign nationals and ships to engage in an
activity otherwise prohibited beyond Australia's territorial sea, unless such
regulation is consistent with Australia's rights and obligations under UNCLOS'.
The bill would also require the Communications Minister or a government
agency to obtain the Attorney-General's consent before it can institute any
proposed criminal or civil proceedings against a carrier that is a foreign
national for breach of a permit condition where the breach occurs beyond the
These amendments would give effect to recommendation 5 of the ACMA review
Domestic submarine cables
To ensure that significant domestic submarine cables (those cables that
connect one place in Australia to another place in Australia) can be suitably
protected, the bill would amend Schedule 3A to give the Governor-General the
power to specify in regulations that a domestic submarine cable or cable route
The bill would also give the ACMA the power to declare a protection zone
in relation to a domestic submarine cable or cable route that is specified in
In addition, carriers will be allowed to apply for a protection zone permit to
land a domestic submarine cable in an existing protection zone so as to allow
for the installation of domestic cables in protection zones.
This amendment would give effect to recommendation 6 of the ACMA review
Consultation between the ACMA and
the Attorney-General's Department
The bill would create a structured process for the consideration of the Attorney-General's
Department's portfolio matters in relation to proposed submarine cables, such
as international law, native title or security matters. The ACMA would be
required to consult the Secretary of the Attorney-General's Department on
Following such consultation, the Secretary of the Attorney-General's Department
can indicate there is no objection to the application, make a submission, or
extend the consultation period by giving notice to the ACMA.
The bill would also give the Attorney-General the power, after
consultation with the Prime Minister and the Communications Minister, to direct
the ACMA not to issue a permit if doing so would be prejudicial to security.
The bill includes consequential amendments including to provide appropriate
Enhancements to the operation of
The bill proposes additional amendments to help streamline the operation
and administration of Schedule 3A including:
removal of the requirement for carriers to obtain two permits for
an international submarine cable that will pass through a protection zone and a
reduction of the processing timeframes for permit applications
from 180 days to 60 business days;
removal of the requirement for the ACMA to consult with the
Secretary of the Department of the Environment in relation to non-protection
zone installation permit applications;
clarification that to land a submarine cable a carrier must
obtain all necessary Commonwealth regulatory approvals;
- setting of allowable deviations from a specified cable route in
protection zones and non-protection zones as conditions for all cable
installations. This amendment would give effect to recommendations 3 and 4
of the ACMA review report;
- allowing the ACMA to publish a summary of a proposal to declare,
vary or revoke a protection zone in newspapers and the Gazette, but
require a full proposal to be published on its website. This amendment would
give effect to recommendation 2 of the ACMA review report.
Navigation: Previous Page | Contents | Next Page