On 13 August 2018, the Senate referred the Telecommunications
Legislation Amendment Bill 2018 (the bill) to the Senate Environment and
Communications Legislation Communications Committee (the committee) for inquiry
and report by 31 August 2018.
The reporting date was subsequently extended to 10 September 2018.
Purpose of the bill
The bill contains two amending schedules. The first schedule proposes to
amend the National Broadband Network Companies Act 2011 (NBN Act)
to require NBN corporations, such as NBN Co Ltd (NBN Co), to provide emergency
services organisations with access in certain circumstances to
telecommunications towers, sites and facilities.
The second schedule proposes to amend the Telecommunications Act 1997
(Tel Act) to allow the installation of communications towers on a temporary
basis under certain conditions. The installation is subject to requirements set
out in ministerial determinations, and includes a requirement that the
installation occur as a 'low-impact facility'.
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to
relevant organisations inviting written submissions by 21 August 2018. The
committee did not hold a hearing for this inquiry but requested answers to questions
on notice from a range of stakeholders.
The committee received 8 submissions which are listed at Appendix 1 of
this report. The public submissions are available on the committee's website
The committee thanks all of the individuals and organisations that
contributed to the inquiry.
Reports of other committees
When examining a bill or draft bill, the committee takes into account
any relevant comments published by the Senate Standing Committee for the
Scrutiny of Bills. The Scrutiny of Bills committee assesses legislative
proposals against a set of accountability standards that focus on the effect of
proposed legislation on individual rights, liberties and obligations, and on
The bill has been considered by the Scrutiny of Bills committee and the
Parliamentary Joint Committee on Human Rights. Neither committee had any
comment on the bill.
The Department of Communications and the Arts (the department) detailed
an extensive consultation process prior to the introduction of the bill in June
2018, which included opportunities for multiple groups and individuals to
provide feedback on the exposure draft of the bill and associated documents.
More than 100 submissions were received by the department, of which less than
10 per cent contained objections to the proposals. The majority of respondents
provided either no comment or support to the proposals. Those not in support of
the proposals identified general concerns regarding visual amenity, safety,
land owners rights and health impacts.
Support for the bill
Generally submitters supported the bill.
The Australian Mobile Telecommunications Association (AMTA) and Communications
Alliance in a joint submission, for example, stated that:
The ability to deploy temporary towers under certain
conditions will greatly facilitate the provision of mobile telecommunications
supporting public events, holiday periods and importantly good communications
for public safety agencies and other responders during times of emergency.
The Northern Territory Police, Fire and Emergency Services stated that
it supported the bill 'in its entirety' and went on to comment that access to
NBN infrastructure will permit enhanced service delivery for police, fire and
However, some submitters suggested that several matters needed to be
clarified while others questioned the inclusion of events and seasonal demand
within the proposed regime. These issues are discussed below.
Issues raised in submissions in relation to Schedule 1 – NBN tower access
Currently, emergency services personnel can gain access to
telecommunications towers owned by carriers to deploy equipment that allows
them to operate more efficiently. However, this is not the case with NBN towers
and associated sites and facilities, as NBN statutory line of business
restrictions limit NBN to supplying eligible services to persons who are
carriers or service providers. It is noted in the Explanatory Memorandum, that
in the past, entities have requested access to towers owned or operated by NBN
corporations but granting access has not been possible.
However, there is 'a clear public interest' in emergency services organisations
being able to access NBN towers.
Amendments proposed in Schedule 1
Schedule 1 of the bill proposes to amend the NBN Act to require
NBN corporations to provide access in certain circumstances to towers, and
associated sites and facilities, to eligible persons who are neither carriers
nor service providers. The Explanatory Memorandum notes that eligible persons
are 'defined to include police, fire, ambulance and state or territory
NBN Co will not be required to provide access if:
this is not technically feasible;
it does not have sufficient capacity on the tower for its own
reasonable requirements or existing contractual requirements; or
it is reasonable for an eligible person to obtain access from
another tower in the vicinity of the NBN tower.
Issues raised in submissions
The proposed amendments were supported by WALGA which stated:
WALGA applauds the common-sense amendment to make NBN towers
accessible to Emergency Services Organisations. The current statutory line of
business restrictions applying to NBN should be removed to allow Emergency
Services Organisations to have access to NBN towers where technically feasible.
However, the Victorian Emergency Services Telecommunications Authority
(ESTA) sought clarification as to whether it was covered by the definition of
eligible persons as it typically accesses sites on behalf of emergency services
for the state of Victoria.
In addition, the Queensland Law Society (QLS) commented that the current
drafting is 'unreasonably wide with respect to who may request access'. The QLS
went on to stated:
...a reasonable degree of flexibility may be required, particularly
regarding urgent access by emergency services. However, as drafted section 19 provides
little detail regarding who, or under what circumstances, a person or persons identifying
as, for example, emergency services, ought to be granted access as requested.
The QLS supported this detail being included in the bill or by way of
statutory guidelines to ensure NBN providers and consumers have appropriate
information and to ensure proper oversight and accountability.
In relation to the matter raised by ESTA, the committee notes that
proposed subsection 19H(2) provides that the Minister, by legislative
instrument, specify one or more additional classes of persons who would be able
to access towers owned or operated by an NBN corporation.
The committee considers that the inclusion of this provision provides the
Minister with flexibility to address any concerns with provision of access for
eligible persons as they arise and notes that the Explanatory Memorandum
This power for the Minister to specify additional classes of
persons provides flexibility to expand the tower access regime, if appropriate,
in the future, if other classes of persons are identified who could access
NBN towers. Expanding access should only be considered where there is a
clear benefit to the public from doing so, and proposed subsection 19H(3)
therefore provides that the Minister must not make an instrument under
subsection [19H](2) unless the Minister is satisfied that it is in the public
interest to do so.
Issues raised in relation to Schedule 2 – Temporary telecommunications
Under current arrangements in Schedule 3 of the Tel Act, carriers are
afforded powers to enter land for inspection and to install and maintain
certain types of facilities. Schedule 3 also provides certain immunities
including from state and territory law in relation to:
environmental impact assessments;
protection of places or items of natural or cultural heritage;
planning, design, siting, construction, alteration or removal of
powers and functions of local governments;
the use and tenancy of land;
the supply of fuel or power; and
matters specified in regulations (wherever occurring).
Carriers are also subject to a series of safeguards, for example, requirements
to notify and provide a land owner/occupier an opportunity to object to the
proposed activity. In addition, the laws are limited in a number of ways
including that 'the Tel Act allows for certain facilities to be specified as
"low-impact", which in turn allows them to be deployed using carrier
powers and immunities'.
The current regime does not permit towers, other than replacement towers
of a particular height to be installed using carrier powers and immunities.
In relation to temporary towers, local government planning approval is required
in many Australian jurisdictions. It is noted in the Explanatory Memorandum
Carriers are often required to obtain development approval
from local governments to temporarily install these facilities, which increases
costs and timeframes for deployment, and affects the business case for their
use. The inability to provide temporary facilities can mean there is
insufficient capacity for customers to connect to mobile networks during
emergencies, maintenance, major events and peak holiday periods.
Amendments proposed in Schedule 2
The bill proposes to permit the Minister for Communications to determine
a temporary facility is a low-impact facility, which engages the carrier
immunities described above and would fast track the installation of towers on a
In these circumstances, the Minister may determine that temporary telecommunications
communications facilities are low-impact facilities (allowing them to by-pass
state and territory planning laws), but only when used to:
maintain coverage during the maintenance of existing facilities,
or construction or installation of replacement facilities;
provide additional coverage during concerts, festivals, sports or
peak holiday periods; or
provide services to emergency services during emergencies or
The Explanatory Memorandum notes that temporary towers would be limited
to no more than 30 metres in height (measured from the ground to the top
of the tower), except in limited circumstances:
when installed in a rural area to minimise disruption that might
result from maintenance or replacement of another facility; or
to provide services to emergency services so that the service can
deal with an emergency or natural disaster, in which case the height limit does
Issues raised in submissions
relating to Schedule 2
Submitters to the inquiry raised concerns about the practical effect of
allowing the Minister to determine temporary telecommunications infrastructure
as a 'low-impact facility', including exemptions from certain State and
Territory planning laws, tower heights and the application of notification and
State and territory planning exemptions
The ATMA and the Communications Alliance supported the amendments in
Schedule 2 on the basis that they will increase the ability of telecommunications
providers to provide services to customers. In relation to the state and
territory planning exemptions, they commented:
The benefits of exemption via Carrier Powers and Immunities
from state and local government planning requirements are primarily reduced
costs and delays in planning processes, which are overarchingly designed to
cater for more permanent buildings and infrastructure.
The temporary nature of the facilities that are the subject
of Schedule 2 of the TLAB Bill does not warrant this level of governance as the
impacts on amenity for the community are limited both by the reduced
construction activity involved in both commissioning and removal, and in the
limited amount of time that the facility presents any visual or operational
The AMTA and the Communications Alliance submission provided numerous
instances where temporary telecommunications equipment was deployed to support
emergency services efforts and communities affected by natural disasters and to
provide services for events.
The submission included instances where state, territory or local government planning
regulations prohibited carriers from deploying additional telecommunications
facilities due to excessive regulatory burden.
It was also noted that:
...Carriers report that local governments may often be
supportive of the proposed temporary facilities which benefit their communities
but have no discretion within local government or state planning laws to
provide a facilitated pathway through regular DA processes, meaning unnecessary
administrative burden and costs on both Carriers and local government
authorities to achieve an outcome on which they already have consensus.
In addition, the AMTA and the Communications Alliance stated that there
was little or no reported concern by members of the public regarding any
temporary facility deployments to date. It was also noted that carriers have
sought to reduce the impact of temporary facilities on the amenity of local
communities, for example, by deploying silent generators in built up areas.
The joint submission went on to argue that a key advantage of the bill
was that planning and consultation would be harmonised across the Commonwealth.
This would provide much greater certainty to carriers, many of which make
significant investments in the deployment of temporary telecommunications
facilities. The joint submission contended that continued uncertainty under
current arrangements may make deployment of facilities sub-optimal or
However, the exemption of temporary towers from state and territory planning
regimes was only supported in part by local government submitters. The
Australian Local Government Association (ALGA), for example, commented that:
The amendments proposed in the bill have caused serious
concern for local government in so far as they override important planning,
consultation and safety assessment provisions.
ALGA and the associations view are that temporary
communication equipment should be exempt from state and territory planning and
council approvals only in the case of emergencies or natural disasters. In
other cases, it should be subject to approvals to ensure that there is no
interference with other infrastructure or services, heritage, environmentally
significant areas, or no increase in the local risk profile.
Similarly, WALGA submitted that it broadly supported the simplification
of regulations around temporary telecommunications facilities in cases of
genuine emergencies or unplanned system outages. However, it did not agree that
events and seasonal demand are either emergencies or are unduly subject to
delays imposed by lengthy development approvals processes.
WALGA argued that it is not beyond the capacity of carriers to plan
ahead with confidence and suggested local governments have a range of planning
and permit options 'to allow for a mutually satisfactory outcome and by passing
this requirement is likely to lead to more conflict than cooperation'. WALGA
concluded that it did not consider that 'carriers have a sufficiently
compelling case to bypass these important planning provisions' in relation to
events or seasonal demand.
Both ALGA and WALGA raised concerns about heritage considerations.
ALGA stated that the proposed provisions should not be able to override local
government's heritage provisions and precincts. AGLA went on to state:
These areas have been identified to protect the integrity of
an area. The fact that a Local Government Heritage overlay is not listed on a
heritage register must not lead to the assumption that it has less heritage,
cultural or environmental significance. Local Government has heritage
provisions under its local planning scheme and the heritage sites have been
identified and recognised through an extensive investigation and community engagement
process. Uncontrolled access within heritage areas and precincts could
adversely impact the integrity of the area.
Similarly, temporary telecommunications infrastructure should
not be allowed in areas identified by local governments to be of special
cultural, landscape, or environmental value without development approval that
has considered the potential impacts and the mitigation and amelioration of
those impacts. ALGA stresses the importance of proper community consultation in
relation to heritage and areas of special cultural, landscape, or environmental
ALGA also pointed to the potential significant consequences of the
installation of temporary mobile infrastructure without due planning approvals.
creation of hazards such as obscuring drivers' line of sight;
interference with other infrastructure or services and may
increase the local risk profile;
damage or destruction of items of Aboriginal or Torres Strait
adverse impacts on landscapes if the value is related to visual
damage of areas of environmental value with even potential loss
of important species at the local level.
The department's submission provided the rationale for the temporary facilities
amendments. The department commented that the amendments recognise the needs of
the community for access to telecommunications during emergencies, events' peak
holiday periods and for maintenance. At the same time, the amendments will
allow carriers to deploy temporary facilities more efficiently and in a
nationally uniform way.
The department also noted that in some jurisdictions planning approval
is not required. For example, in New South Wales, many permanent and temporary
towers are already installed without development approval under the State
Environmental Planning Policy (Infrastructure) 2007. In Victoria, the Code of
Practice for Telecommunications Facilities allows for the installation of some
temporary telecommunications towers without requiring development approval.
Further, the department emphasised the safeguards relevant to the bill.
First, the bill introduces new safeguards related to strict conditions
regarding circumstances when towers can be installed, maximum tower height,
removal timeframes and land restoration. Secondly, existing safeguards will
apply. These are included in Schedule 3 of the Tel Act and the Telecommunications
Code of Practice 2018 (Code of Practice).
The department added that the Code of Practice provides broad requirements that
can be applied to temporary facilities include that a carrier must take all
reasonable step to act in accordance with good engineering practice, and to
protect the safety of persons and property, and the environment. Concerns of
land owners and occupiers can be raised through the notification and objection
The department also submitted that the bill includes detailed conditions
to ensure appropriate scrutiny by Parliament, which should provide confidence
to communities that the temporary facilities will be carefully controlled.
Determinations made under Schedule 2 of the bill will specify the types of
temporary facilities that may be installed, and be subject to scrutiny by the
Senate Standing Committee on Regulations and Ordinances, and subject to the
disallowance regime in the Legislation Act 2003.
Timeframes for temporary facilities
ALGA pointed to the provisions related to the time limits for temporary
facilities. ALGA noted that the bill proposes that the carrier must ensure that
the total time a facility is installed for an event does not exceed 183 days in
a calendar year, which is half a year. In addition, facilities installed to
provide additional services in peak times would not be permitted to be
installed for more than 90 days in a calendar year in that 'place'. ALGA argued
that as the bill does not define place 'so what is to stop the carrier just
moving the temporary facility from one street to another'.
The Telecommunications Industry Ombudsman (TIO) also commented on the
proposed timeframes for the installation of temporary facilities and argued
that these will, in fact, be 'semi-permanent' facilities. The TIO commented
this goes well beyond what was proposed by the department's public consultation
and what is currently permitted in NSW and Victoria.
The TIO contended that portable facilities should only be characterised
as temporary in limited circumstances and with additional restrictions. These
include imposing a maximum time period for installation, prohibiting carriers
from relocating facilities to avoid a maximum time limit and not allowing
carriers to replace temporary facilities with a 'like' system.
The TIO argued the proposed framework 'should not assume carrier
compliance and should set well-defined limits on carrier powers and immunities
so there is certainty as to what carriers are lawfully permitted to do'.
In relation to concerns about the time limits for temporary facilities,
the department stated that the 183 day annual limit included a safeguard to
ensure that a temporary facility cannot become a permanent installation. It
For example, a carrier could install a temporary facility for
a football game at the MCG to boost services and the carrier would have 28 days
to remove the facility after the event. However, during the 28 day period,
another game could be held and the clock would restart. While this may be
acceptable for a limited time, where a sporting facility or event venue
requires boosted services on a regular basis, the 183 day limit will encourage
carriers to submit a development application so that the local council can
consult with the community and decide whether a permanent facility be
The department also commented on the 90 day limit for seasonal demand
and stated that this timeframe should provide an adequate amount of time for
the required seasonal coverage while balancing the interests of the local
community. If a carrier wished for the tower to be permanent or in place for
longer than 90 days, it would need to comply with planning requirements.
The Explanatory Memorandum notes the bill includes conditions to ensure
that the temporary telecommunications facilities are to be removed within a set
timeframe and that carriers restore the land after the equipment's removal.
WALGA commended the inclusion of land remediation requirements, but
argued there was substantial evidence that carriers have a poor track record
with respect to land remediation. To address these concerns, WALGA suggested that
proposed subsection 9A(2) of the Tel Act be amended to add 'to the satisfaction
of the land owner or occupier' to the requirement that land must be remediated
to a similar condition prior to the installation of temporary
The department submitted that except for temporary facilities installed
during holiday demand peaks, facilities are required to be removed 28 days
after they are no longer required.
Further, carriers will be required to take all reasonable steps to 'commence
restoration of the land within 10 days of the temporary facility being
Under the proposed amendments, a temporary tower would be limited to no
more than 30 metres in height (measured from the ground to the top of the tower).
Exceptions to this requirement are provided for when the temporary tower is
during maintenance or replacement of facilities in rural areas,
in which case the tower may be higher than 30 metres, or the same height as the
tower being maintained or replaced; or
to provide additional capacity to emergency services
organisations to manage emergencies and natural disasters—in these cases there
is no height restriction.
The AMTA and the Communications Alliance requested clarification in the
explanatory materials, or elsewhere, that the height limit 'does not include
the height of antennas attached to the tower'.
The TIO noted that the bill would permit an overall increase of height
from the current permissible maximum height of 25 metres to 30 metres. The TIO submitted:
An increase in height from five to 30 metres from the ground
(assuming there has been no five metre extension) for portable temporary
facilities is a significant increase in height. We note this would increase the
height for temporary facilities that may already be installed in an emergency.
We reiterate our views above on achieving the characteristic
of temporary. We believe this would more appropriately achieve the balance
between enabling carriers to install portable temporary facilities and
safeguarding the interests of landowners and occupiers.
The department commented that the maximum tower height was one of the safeguards
being introduced by the bill.
Other issues raised
The TIO commented on a range of other issues including that a number of
temporary facilities which may be installed on the same land for the annual
period by multiple carriers. In order to address this issue, the TIO suggested
that consideration be given to whether the regulatory framework might restrict
the maximum number of temporary facilities that may be installed and allowed on
the same land for the duration of the annual period. The TIO concluded that
this 'could more appropriately safeguard landowners and occupiers, and also
The TIO also commented on the provisions related to location of a
temporary facility where it is 'practicable to achieve the purpose' and how to
ascertain that this is the case. The TIO suggested that without further
clarification in the Telecommunications (Low-Impact Facilities) Determination 2018
or Code of Practice, it would be difficult to determine whether the proposed
location is practicable to achieve the purpose.
Notification and objection
The department has indicated that the notification and objection process
contained in Schedule 3 of the Tel Act 'would apply to temporary facilities,
noting that there are some exemptions, such as during an emergency'.
However, the AMTA and the Communications Alliance questioned whether this would
be the case and suggested that clarification was required. They submitted that
they accepted the department's position in response to submissions during the
consultation process that 'a
separate notification and objection procedure is not required if Clause 17(6)
of Schedule 3 of the Telecommunications Act 1997 can be relied on for
unplanned activities requiring temporary installations including maintenance of
coverage'. However, the AMTA and the Communications Alliance 'would prefer that
Clause 17(6) be expanded to explicitly include an emergency event'.
The TIO also commented on the notification and objection provisions. The
TIO typically receives objections made by a wide range of stakeholders,
including farmers, building owners, apartment owners, universities, hotels,
public utilities, state, territory and local government authorities. Over the
past five years, the TIO has determined between 12 to 15 land access objections
each financial year.
The TIO stated that clarifications would be helpful to assist the TIO in
handling objections about temporary facilities expeditiously. The TIO
identified the following matters:
the meaning of 'in the vicinity of the venue' and 'in the
vicinity of the other facility';
the types of events for which installation of a temporary
facility is not permitted; and
the public and school holidays which are covered.
The TIO submitted that two other reforms are necessary for the bill to
have its intended effect on enactment. These relate to the conferral of powers
on entities and the conferral of jurisdiction and powers to the Ombudsman to
The department commented that under the existing regime, affected
landowners or occupiers must be notified by the carrier prior to installation
of facilities, and have a right to object to the TIO, who may issue subsequent directions to carriers.
The department added that the notification and objection process would apply to
temporary facilities but there are some exemptions such as during an emergency
The committee considers that the amendments proposed in the bill are a
balanced approach, incorporating adequate safeguards, to enable emergency
services organisations access to NBN-owned infrastructure in order to enhance
public safety during emergencies and natural disasters.
The committee notes the comments from local government concerning the
inclusion of events and instances of seasonal demand in the proposed framework
for the installation of temporary communications towers. The committee
acknowledges the concerns raised by local government, particularly in relation
to heritage matters, but it believes that it is not unwarranted that these two
circumstances come within the proposed framework. Not only will temporary
facilities ensure customers are able to connect to mobile services but they
will also provide critical services to emergency services should the need arise
during an event or peak seasons.
The committee also appreciates the concerns raised in relation to land
remediation and tower height but considers that the safeguards in the current
regulatory regime will adequately address these issues. In addition, the
committee notes evidence from the department concerning the application of
parliamentary scrutiny and disallowance and considers that this offers further
protection and oversight.
In relation to the AMTA and the Communications Alliance and TIO's
suggestions for clarification of certain matters related to notification and
objection provisions, the committee believes that the department should give consideration
to addressing these matters. The robustness of the notification and objection
process and the expeditious assessment of objections is an important element for
ensuring positive outcomes for all stakeholders.
In addition, the committee is of the view that there is merit in giving
further consideration to ensuring that temporary facilities cannot be relocated
as a means of avoiding the maximum time limits proposed by the bill. The
committee also considers that the heritage concerns raised by submitters
warrant further examination.
On this basis, the committee notes the benefits of the bill in fast
tracking the provision of essential services to communities across Australia
where they are needed, and recommends that the bill be passed.
That committee recommends that the Department of Communications and the
Arts examine, and if necessary, strengthen drafting of the bill to provide
greater certainty that carriers will not be able to relocate temporary
facilities as a means to avoid the maximum time limit.
That committee recommends that the Department of Communications and the
Arts examine, and if necessary, strengthen drafting of the bill to provide
greater certainty over the protections that will apply for heritage areas, including
places of cultural and environmental significance.
The committee recommends the Senate pass the bill.
Navigation: Previous Page | Contents | Next Page