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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS AND OTHER LEGISLATION AMENDMENT
(PROTECTION OF SUBMARINE CABLES AND OTHER MEASURES) BILL
2005
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for Communications, Information
Technology and the Arts, the Senator the Hon. Helen Coonan)
TELECOMMUNICATIONS AND OTHER LEGISLATION AMENDMENT
(PROTECTION OF SUBMARINE CABLES AND OTHER MEASURES) BILL
2005
OUTLINE
In 1999 the National Bandwidth Inquiry1 examined Australia's regulatory framework for
submarine telecommunications cables and recommended:
a stronger planning and protection regime for cables;
explicit authority to install submarine cables; and
increased penalties for damaging cables to create an effective deterrent to
unnecessary disruption of communications.
The Government is concerned about lack of security for submarine fibre optic
telecommunications cables, which are vulnerable to damage from several sources,
particularly some kinds of fishing, anchoring of vessels and dredging.
Submarine cables in Australian waters carry about 99 per cent of Australia's international
voice and data traffic, and constitute a vital element of the national infrastructure. Cable
owners in 2002 estimated their value to the national economy at more than A$5 billion
per annum.
Cable breakage impedes information flow, affecting the capacity of Australians
(particularly businesses) to conduct international transactions. Any sustained outage
slows information flow, and can cause the loss of data, loss of business and damage to
reputation. There have been several cable breaks in recent years, caused by fishing
equipment or a ship's anchor. Cable owners estimate the direct cost to them of repairing
a cable break at between $1.2 million and $3.3 million. The flow-on costs to users have
not been estimated.
The current Submarine Cables and Pipelines Protection Act 1963 does not provide
sufficient incentives to avoid damage to cables. The Telecommunications Act 1997 is
silent on submarine cables. It does not give telecommunications carriers authority to
install submarine cables nor provide penalties for damaging them. Cables in coastal
waters are currently governed by State and Territory legislation.
The Telecommunications and Other Legislation Amendment (Protection of Submarine
Cables and Other Measures) Bill 2005 (the Bill) establishes a scheme for creating
protection zones over submarine cables of national significance. Activities within
protection zones likely to damage cables will be prohibited or restricted.
1
National Bandwidth Inquiry: Report of the Australian Information Economy Advisory
Council, Commonwealth of Australia, 1999.
2
The Bill amends the Telecommunications Act 1997 by adding a Schedule dealing with the
protection of submarine telecommunications cables, and amends the Submarine Cables
and Pipelines Protection Act 1963 so that penalties under that Act cease to apply for
damaging submarine telecommunications cables in protection zones. This means that the
only penalties for damaging submarine cables in protection zones will be those under the
Telecommunications Act 1997.
The Bill amends the Telecommunications Act 1997 to provide that, if anything done by a
carrier under that Act, as proposed to be amended, results in an acquisition of property,
then compensation will be payable by the carrier, not the Commonwealth.
The Commonwealth has consulted extensively with stakeholders in developing this
proposal. Consultations included meetings with all State and Territory Governments,
Commonwealth agencies with marine and maritime responsibilities, telecommunications
carriers and cable owners, peak bodies representing fishing and other resource industries,
and the Australian Communications Authority (ACA).
The main elements of the Bill are:
the declaration of protection zones over cables of national significance, running
through State, Territory and Commonwealth waters, both for existing cables and
those installed in the future;
ACA declaration of a protection zone, or the variation or revocation of a declaration,
by legislative instrument;
mandatory consultation by the ACA with users of the sea and seabed through an
advisory committee representing affected interests before protection zone decisions
are made;
prohibition or restriction of activities most likely to damage cables within protection
zones;
immunity from certain State and Territory laws within protection zones, similar to the
immunities that now apply to carriers under the Telecommunications Act 1997 when
they install underground cables on land;
criminal penalties for damaging submarine telecommunications cables, for engaging
in prohibited activities or for engaging in restricted activities in a way that
contravenes a restriction;
issuing of permits by the ACA for the installation of submarine cables, both in
protection zones and in Australian waters other than in a protection zone or coastal
waters;
penalties for installing a cable without a permit or contrary to a permit condition;
recovery of the cost of the protection regime from the telecommunications industry;
and
review of the regulatory arrangements by the ACA within five years of their
commencement.
3
FINANCIAL IMPACT STATEMENT
This Bill will not have any significant impact on Commonwealth expenditure or revenue.
If the Bill is enacted before the establishment of the proposed Australian
Communications and Media Authority (the ACMA) on or before 1 July 2005, the
Australian Communications Authority will recover the full cost of the protection regime
by way of a determination under section 53 of the Australian Communications Authority
Act 1997. If the Bill is enacted on or after the establishment of the ACMA, the ACA's
proposed successor, by the proposed Australian Communications and Media Authority
Act 2005, the ACMA will recover the full cost of the protection regime by way of a
determination under section 60 of that Act.
4
REGULATION IMPACT STATEMENT
Australian Maritime Zones
The States and the Northern Territory have primary jurisdiction over coastal waters (up to
three nautical miles from the coastline) as well as over the land where cables emerge
from the sea.
The Commonwealth has sovereignty over its territorial waters (three to 12 nautical
miles). It has the right to explore and exploit living resources, and the obligation to
protect and conserve the marine environment in the Exclusive Economic Zone (EEZ),
which extends either to 200 nautical miles or to the edge of the continental shelf,
whichever is the further.
Baseline
3 nm 12 nm 200 nm*
* or to the edge of the continental shelf
Australian Territorial waters Exclusive Economic Zone (EEZ) High Seas
UNCLOS
Coastal Commonwealth-controlled waters
(Convention
waters
on Law of
(State) Sovereignty Right to explore & exploit resources the Sea)
Australian waters for the purposes of this Bill (see clause 2
of proposed Schedule 3A to the Telecommunications Act)
The international context
New Zealand regulates its telecommunications cables through the Submarine Cables and
Pipelines Protection Act 1996. The New Zealand Act allows for the declaration of
protected areas in which all fishing and anchoring is prohibited. The areas are patrolled
by enforcement and protection officers who have the power to order ships from
protection areas or seize equipment in certain circumstances. Large penalties can be
applied for damage to cables by fishing or anchoring vessels.
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Indonesia and Singapore also have systems of submarine cable protection, with
restrictions on fishing and anchorage in protection zones.
In Japan and Korea, the strength of the fishing industries means that cable owners pay
millions of dollars to the industry to lay cables in fishing areas. There is, however, little
protection afforded to these cables once they have been installed. The Japanese often
report cable damage due to the inadequacy of the protection regime.
The USA, Canada and the UK focus on licensing provisions for the landing of cables but
there are no offshore protection zones. The object of licensing in the Canadian and US
context is to manage competition and limit the number of cables. In the USA, the licence
also includes a reserved right for the Federal Communications Commission to impose
additional regulations on the licensee, if the conditions are considered to be in the public
interest. In the UK, considerations for licensing are predominantly confined to safety
issues associated with navigation. Environmental impacts are secondary considerations.
1. ISSUES
Ensuring the security and reliability of submarine cables
Fibre optic submarine cables are susceptible to damage and breakage. Activities that
pose the greatest threat are sea-bottom trawl fishing, dumping, sand dredging, and
anchoring. The isolation and vulnerability of cables, and their significance to the
Australian economy, also render them a potential terrorist target.
In July 2001, a trading ship dragged anchor off Sydney. It severed two submarine
cables, the high capacity Southern Cross cable and the Tasman 1 cable. The second
arm of the Southern Cross cable was undergoing routine maintenance at the time,
compounding the effect of the breakage.
The Tasman 2 cable was broken off the New South Wales coast by trawl fishing in
1997 and the ANZCAN cable was broken, again by trawl fishing, in 1991 off
Sydney.
The SEA-ME-WE3 cable that lands at Perth has been cut several times between
Singapore and Jakarta by sand dredging operations.
Cable breakage impedes information flow, affecting the capacity of Australian business
to conduct international transactions. Any sustained outage slows information flow, and
can cause lost data, lost business and damage to reputation.
Cable owners estimate the direct cost to them of repairing a cable to be A$1.2 million to
A$3.3 million. Cost to consumers and the public can be substantial but is difficult to
estimate.
Providing penalties as a disincentive to causing cable damage
The Telecommunications Act 1997 does not make it an offence to cause damage to a
submarine cable.
6
The Submarine Cables and Pipelines Protection Act 1963 provides a maximum penalty
of $2,000 or imprisonment for 12 months where a person engages in conduct that results
in a ship registered in Australia or an Australian Territory breaking or injuring a
telecommunications cable. However, this applies only to cables beneath the high seas
and EEZ (not in the territorial sea or coastal waters).
Providing a consistent regulatory regime
There is inconsistent treatment under the Telecommunications Act 1997 for submarine
cables and terrestrial underground cables. Some terrestrial underground cables are
specified as `low-impact facilities' in the Telecommunications (Low-impact Facilities)
Determination 1997, made under subclause 6(3) of Schedule 3 to the
Telecommunications Act 1997. These facilities are considered essential to maintaining
telecommunications networks, but are of low visual impact. On land, low-impact
facilities include some radiocommunications facilities, underground and above-ground
housing, underground cables, public payphones, emergency and co-located facilities.
The Telecommunications Act 1997 and instruments made under that Act are silent on
submarine cables. This silence creates confusion because, while that Act and subordinate
instruments do not explicitly provide authority to install submarine cables, some carriers
have claimed submarine cables as low-impact facilities, saying the cables are
underground cables. In doing so, the carriers claim exemption from certain State and
Territory planning laws by virtue of Schedule 3 of the Telecommunications Act 1997.
Other carriers comply with State and Territory laws and local government authority by-
laws to obtain authority to install cables in State-controlled and Territory-controlled
coastal waters. These State- and Territory-based planning processes can be protracted
and costly, and vary from jurisdiction to jurisdiction.
Clarify liability for compensation
There is some uncertainty about the operation of the proposed submarine cable protection
regime and Schedule 3 activities, in the application of s. 51(xxxi) of the Constitution. It
is possible that in certain circumstances a court may find that the installation of
submarine cables, the establishment of protection zones or the existence of rights
conferred on a carrier under the Act, amount to an `acquisition of property', and that
compensation `on just terms' has not been provided.
As the law currently stands, if a court were to find that there has been an acquisition of
property otherwise than on `just terms', the Commonwealth may be liable to pay
compensation under s. 591 of the Act. Section 591 of the Act provides, in effect, that the
Commonwealth is liable to pay compensation to a person whose property is acquired
through the operation of the Act, if that acquisition would otherwise contravene
s.51(xxxi) of the Constitution.
The current telecommunications regime recognises that public interest is served through
providing carriers with powers and immunities to install telecommunications
infrastructure of importance from which the carriers receive an ongoing financial benefit.
7
There are various provisions in the Act which might result in `just terms' being provided
in many cases without the need to resort to s.591. The most significant in this respect is
clause 42 of Schedule 3 which provides that a person who suffers `financial loss or
damage' because of `anything done by a carrier' under Schedule 3 to the Act, in relation
to property owned by the person (or any property in which the person has an interest), is
entitled to a reasonable amount of compensation.
While the circumstances are likely to be limited, the requirement for `just terms'
compensation may, in some circumstances, require compensation for more than the
`financial loss or damage' suffered by the property owner as a result of the acquisition.
As the legislation currently stands the Commonwealth may be liable to pay the gap
between `financial loss or damage' and `just terms' compensation should a court
determine that it exists.
A similar compensation provision is proposed for Schedule 3A (clause 87) to provide that
a person who suffers `financial loss or damage' because of anything done by a carrier
under Schedule 3A in relation to any property owned by the person (or any property in
which the person has an interest) is entitled to a reasonable amount of compensation.
It is also possible that infrastructure installed by carriers under Schedule 3 to the Act
may, in some circumstances, amount to an acquisition of property. Schedule 3 to the Act
provides carriers with statutory power to install certain terrestrial telecommunications
infrastructure with immunity from State and Territory planning laws.
Section 591 was intended to ensure the viability of the Act generally should any question
arise that a provision was otherwise contrary to s.51(xxxi) of the Constitution. It is not
appropriate for the Commonwealth to be liable for any compensation payments arising
from the acquisition of property by a carrier. It is particularly inappropriate given the
carrier gains a direct financial benefit from the installation of telecommunications
infrastructure using the powers and immunities regime. In addition, by leaving some
potential compensation obligation on the Commonwealth, the current powers and
immunities regime does not balance the commercial rewards with the full financial risks.
It is desirable that the compensation arrangements in the event of a s.51(xxxi) issue
arising in relation to submarine cables be clarified in the new regulatory regime for
submarine cables to ensure that the Commonwealth does not bear an inappropriate, albeit
unlikely, liability. It is also sensible at the same time to ensure consistent regulatory
treatment of both terrestrial and submarine telecommunications facilities.
2. OBJECTIVES
The objectives of Government action relating to submarine telecommunications cables
are to:
provide security and reliability for the submarine cable component of Australia's
national information infrastructure;
clarify the liability for compensation; and
8
provide increased consistency and clarity in the Commonwealth telecommunications
regulatory regime.
3. OPTIONS
Four options to increase protection for, and streamline the regulation of, submarine cables
were considered:
1. retaining the current legislative framework, without amendment;
2. extending the existing terrestrial telecommunications regime to submarine cables;
3. New Zealand's `protected area' model; and
4. protection zones with restricted activities, increased penalties and clarification of
liability provisions.
Option 1: Retaining the current legislative framework
Authorisation for installing submarine cable networks under current regulation results in
a single cable network being installed as follows:
the land-based portion authorised under Commonwealth law as a `low-impact
facility';
the cable laid in coastal waters (from the shore to three nautical miles) authorised
under State and Territory law; and
the cable laid in Commonwealth-controlled waters, from three nautical miles
seaward, installed without authorisation or notification.
Option 2: Extending the existing terrestrial telecommunications regime to
submarine cables
Submarine cables would be declared low-impact facilities by ministerial determination
under the Telecommunications (Low-Impact Facilities) Determination 1997.
Submarine cables specified as low-impact facilities would have clear authorisation to be
installed in both Commonwealth- and State-controlled waters. Clause 37 of Schedule 3
to the Telecommunications Act 1997 provides licensed carriers with the power to install
low-impact facilities with exemption from State and Territory planning laws.
Option 3: New Zealand's `protected area' model
New Zealand's Submarine Cables and Pipelines Protection Act 1996 was identified by
the National Bandwidth Inquiry as a possible model for Australia, though a sub-optimal
one. The New Zealand legislation provides for:
The Governor-General to declare protected areas over submarine cables or pipelines
in any area within the internal territories, territorial sea or EEZ of New Zealand.
All anchoring and fishing operations to be prohibited in protected areas.
Protection officers to be specially appointed, and members of the police or naval
forces to be designated as enforcement officers who have the power to order ships
from protected areas or to seize equipment.
Fines of up to NZ$250,000 to apply for wilfully or negligently damaging a
submarine cable, and up to NZ$100,000 for undertaking a prohibited activity in a
9
protected area if in pursuit of commercial gain, plus (if convicted) forfeiture of the
equipment used in the offence.
Option 4: Protection zones with restricted activities, increased penalties and
clarification of liability provisions
Protection zones would be declared over submarine cables of national significance, with
prohibited and restricted activities, and increased penalties for damaging cables. This
option would have the following key features:
The Australian Communications Authority (ACA) would be empowered to declare
protection zones over cables of `national significance' to Australia, and to vary,
review and revoke those zones. Cables of national significance would generally be
high capacity cables that are important to the national economy and that link
Australia to global communications systems.
The ACA would establish an advisory committee with representatives of
stakeholders, and would be required to consult widely with, and to take into account
the views of, affected industries, environmental interests, relevant Commonwealth,
State, Territory and local government bodies, Native Title holders and the public.
Activities that provide a significant threat to cables (such as bottom-trawl fishing,
anchoring of ships, dredging, and mineral exploration and mining) would be
prohibited in protection zones. Other less dangerous activities (other types of
fishing, installation and maintenance of cables and pipelines, the construction of
jetties, wharves, boat ramps and the like, and the construction and maintenance of
navigational aids) would be restricted. Restricted activities may include activities
that normally take place near submarine telecommunications cables under
agreements between parties who need to share access to the sea and seabed.
Heavy penalties would apply under the offence provisions of the proposed law. The
Australian Federal Police would be responsible for enforcement.
Each declaration of the ACA in relation to a protection zone would be tabled in
Parliament as a legislative instrument.
The ACA would also be empowered to issue permits allowing carriers to install
submarine cables, both within protection zones and in Commonwealth-controlled
waters outside protection zones.
The carrier would be liable for payment of any compensation that might result from
the new submarine cable regime.
The legislation would be reviewed within five years of implementation.
The cost of administering the protection regime would be recouped from the
telecommunications industry.
Additionally, to provide a consistent regulatory regime for both terrestrial and submarine
telecommunications facilities it is proposed that a carrier, engaged in installation or
maintenance activities under Schedule 3 to the Act that give rise to an acquisition of
property, would bear the risk of liability.
***
10
A fifth option, of a cable-landing licensing regime such as those in the United States and
the United Kingdom, was not considered in detail. These regimes have different
objectives than the National Bandwidth Inquiry recommendations and are not suitable for
Australia. These regimes seek to limit rollout in highly competitive markets, but do not
protect submarine cables. In addition, these markets have many more submarine cables
landing on their shores, lower costs, higher returns, higher levels of competition and more
redundancy than Australia, which is dependent on just a few cables.
4. CONSULTATION
Submarine cables protection regime
In response to the National Bandwidth Inquiry's report on the regulatory arrangements
for submarine cables, a discussion paper was widely circulated in February 2001.
Submissions were received from Commonwealth agencies, State and Northern Territory
Governments, the telecommunications carriers and peak bodies representing fishing and
offshore resource interests.
On the basis of the submissions received in response to the discussion paper, a draft
framework was prepared and circulated during May 2002 for further consultation with
those stakeholders who responded to the initial round of consultation.
There is broad support among stakeholders for the proposed regime (option 4), tempered
by competing sectoral interest. Most concerns have been addressed, particularly by
providing for mandatory consultation with stakeholders. This provision was crucial to
securing stakeholder agreement to the proposal.
Telecommunications industry
In 2001, cable owners supported the protection zones proposal to provide greater
protection to submarine telecommunications cables and streamline cable planning and
authorisation processes.
Further consultations were undertaken with major carriers and cable owners on a detailed
proposal of the submarine cables protection regime in October 2004. Whilst carriers
suggested the proposed regime over-regulates the protection of submarine cables, they
continue to support the requirement for greater regulatory protection for submarine
telecommunications cables.
A strong regulatory approach was considered necessary to balance the interests of all
users of the sea and seabed.
Resource sector
The Australian Petroleum Production and Exploration Association (APPEA), this
resource sector's peak body, was concerned to ensure that the regime should be flexible
enough to balance the competing interests of their industry. Petroleum explorers and
producers are given exploration licences for specific areas, and their infrastructure can be
in close proximity to cables.
11
APPEA also suggested that the existing international safety zone standard of 500 metres
around offshore drilling equipment should be enough.
Given the vulnerability of telecommunications cables and their location out of sight
on the seabed, it was considered that a safety zone of only 500 metres would be
insufficient.
Fishing industry
Peak fishing industry bodies, the Australian Seafood Industry Council and the South East
Trawl Fishing Industry Association, were strongly supportive of a formal planning
process (including consultation) in the interests of equitable access to resources. These
organisations were, however, concerned about the high penalties proposed and the rights
of fishers to negotiate compensation from cable owners if they are excluded from fishing
grounds.
The proposed regime was amended to address both points.
The Department of Agriculture, Fisheries and Forestry - Australia (AFFA) was
concerned about access and use rights to marine resources, the proposed environmental
impact procedures, and some details of the proposed process. AFFA also suggested
integrating arrangements for all sea installations, including energy and petroleum
installations.
The proposed regime enables users other than the cable owners to take advantage of
protection zones through the `restricted activities' provision. Restriction of zones to
telecommunication cables of `national significance' would ensure that the number of
zones is kept to a minimum.
Commercial shipping
The Department of Transport and Regional Services supported the proposal but did not
support the prohibition on anchoring of trading ships in protection zones.
Native title
The Attorney-General's Department has advised that the declaration of protection zone
decisions by legislative instrument and the issue of permits to lay cables would be `future
acts' for the purposes of the Native Title Act 1993, but suggested that exempting native
title activities from the operation of protection zones be considered. However, it was
considered that there was insufficient justification for this exemption.
Environmental agencies
The Department of the Environment and Heritage, the National Oceans Office and the
Great Barrier Reef Marine Park Authority were consulted. In declaring a protection zone,
varying or revoking a protection zone, or granting a permit to install a submarine cable in
Australian waters outside State and Territory coastal waters, the ACA would be required
to consult the Environment Secretary.
Other Commonwealth agencies
Two rounds of Interdepartmental Committee meetings were held. The Department of
Industry, Tourism and Resources made suggestions about the consultation process, an
12
appropriate safety zone model, the determination of cable protection zone activities and
the appeals process.
These matters were considered in developing the model.
The ACA, the Attorney-General's Department and the Australian Federal Police were
consulted on the enforcement of protection zone restrictions. The Attorney-General's
Department has been consulted about proposed offence provisions and penalty levels.
State and Territory Governments
All States and the Northern Territory have provided input into the proposed regime.
Concerns raised included the possible impact on State and Territory government revenue.
Research suggests that there would be no loss of revenue from fisheries to State and
Territory governments, given that fisheries operate at a loss and are subsidised by
State and Territory governments.
There may, however, be loss of revenue depending on the jurisdiction's land
management policies.
Liability for compensation
Consultation was undertaken with major carriers and cable owners in 2000 when this
issue was previously considered in the context of a package of measures associated with
carriers' powers and immunities under Schedule 3 to the Act. Policy approval was
received; however, it was decided no to proceed with the amendment at that time.
At that time, carriers expressed the view that the current compensation provision for
financial loss or damage, as provided by clause 42 of Schedule 3 to the Act, will almost
always provide `just terms' because an owner's interest in their property is financial and
financial compensation will always be found to be reasonable.
Major carriers and cable owners were further consulted in October 2004 regarding the
application of these provisions to carriers' powers and immunities to both terrestrial and
submarine telecommunications infrastructure and did not raise any significant concerns.
4. ASSESSMENT OF IMPACTS (COSTS AND BENEFITS) OF EACH
OPTION
Four options were examined in relation to the management of submarine
telecommunications infrastructure, measured against the following objectives:
security and reliability of cables;
beneficiary liable for compensation; and
a consistent regulatory regime.
13
Option 1: Objective
Current regime Security & reliability of submarine
Beneficiary liable for compensation Consistent regulatory regime
cables
STAKEHOLDERS
Cable owners Low benefit, high cost High benefit, low cost Low benefit, high cost
& operators Cables remain vulnerable to Carriers will continue to maintain their Cable owners subject to State
damage, mostly from commercial powers and immunities to install and local jurisdiction within
trawl fishing and ships dragging telecommunications infrastructure from coastal waters and at landing
anchor, as low penalties under the which they derive a commercial sites. The variation of State
Submarine Cable and Pipelines Act benefit. and local planning regimes
1963 (up to $2000) provide no Because of their ability to derive a results in an uncertain
effective disincentive to damage financial benefit, it is inappropriate that investment and planning
cables. carriers are able to pass any potential environment.
Cable owners can seek damages for liability to the Commonwealth. The Telecommunications Act
cable breaks in civil courts, but the 1997 is silent on submarine
cost to repair a broken cable is cables.
between $1.1 to $3.3 million. Repair The absence of explicit
typically costs from A$167,500 to authorisation for submarine
A$236,000 per day and takes from cable installations through
seven to 14 days to complete. Commonwealth law, and
14
Cable owners operate patrol boats inconsistency between State
over their key east-coast cables to and Commonwealth laws,
protect their investment - at a cost of creates confusion and variable
$2m per year. approval practices among
Carriers may be subject to ongoing carriers and doubt about legal
fees paid to State governments for rights to occupy seabed. Some
right to occupy the seabed in coastal carriers claim to install
waters - this cost does not guarantee submarine cables as
sole occupancy of that easement or `underground cables' on the
provide for the cessation of trawl seabed as a `rural area'.
fishing activity in the area. No mechanism to reconcile
Cable owners negotiate commercial competing claims to use
agreements with local fishing seabed in territorial waters.
industries to ensure cables are
protected from trawl fishing
operations.
Cable breaks disrupt communications
for clients of the cable owners;
impose costs, particularly on e-
commerce, and threaten reputation
with overseas customers for quick
15
and reliable service.
Fishing High benefit, low cost No effect Low benefit
industry The current absence of protection Lack of an explicit regime has
mechanisms for submarine cables created friction between cable
provides no regulatory constraint on owners and fishers, especially
fishing operations. where the cable owners have
Where agreement has been reached substantial resources to
to keep trawl fishing away from expend on negotiating
cables, this has been achieved commercial agreements.
through commercial agreement.
Current low penalties for damaging
cables might be regarded as an
ordinary cost of business for some
trawler operators.
Trading ships Low benefit, low cost No effect No effect
Trading ships are not hindered in Currently, carriers notify
innocent passage. commercial shipping through
Generally, trading ships are publication of marine notices
observant of cable locations and do informing of dates of
not anchor near cables. Accidental installation.
damage through dragging of anchors No known conflict between
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may occur. trading shipping and cable
Penalties under the Submarine owners over installation.
Cable and Pipelines Act 1963 are
low in relation to trading ship costs.
The application of penalties is
highly restricted: penalties apply
only to cables under the high seas
and EEZ, and only to Australian-
registered ships.
Resource Low benefit, low cost No effect No effect
industry The Petroleum (Submerged Lands) No conflict over submarine
(mining and Act 1967 provides for exclusion installations to date.
petroleum) zones around surface submarine
petroleum infrastructure. No such
exclusions exist for submarine
cables.
The International Submarine Cable
Protection Committee, of which
existing carriers are members, has
relevant guidelines governing
collocation of cables and pipelines
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and the resource industry operates
responsibly in the vicinity of cables.
Current low penalties for damaging
cables would be little disincentive to
resource industry operators.
State Low benefit, low cost No effect Mixed benefit, high cost and
governments The absence of protection for returns
submarine cables and the lack of The installation of cables on
incentives to avoid cable damage landing stations and in coastal
are not in the States' interest waters is subject to the
because of the direct benefit to the planning and environment
States of having high-capacity laws of the States.
cables directly linking the States' States have a high level of
economies to the global market. control over infrastructure
The States do not resource the planning and authorisation,
protection of submarine cables or which carries an
areas. administrative cost.
Agencies noted the need for Some States charge carriers an
improved cable location annual lease or charge for
information, although hydrographic occupying the seabed in
charts are available. coastal waters.
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Commonwealth Low benefit, low cost Low benefit, high cost Low benefit, low cost
agencies The absence of protection and the There is the potential for the The Commonwealth currently
low penalties for submarine cables Commonwealth to be liable to pay exercises no control over the
do not reflect the national interest in compensation for acquisition of authorisation, location, or
protecting Australia's high-capacity property not on `just terms' arising installation practices relating
cables. from the actions of carriers in to submarine cables.
The Commonwealth does not accordance with the Act.
resource the protection of submarine The Commonwealth provides carriers
cables or areas. with powers and immunities to install
The penalties for damaging cables telecommunications infrastructure, but
within the Submarine Cables and receives no direct benefit from this
Pipelines Act 1963 require infrastructure.
increasing.
The current penalties, when
imposed, provide low benefit to
consolidated revenue.
The Commonwealth incurs low
costs in enforcing offences relating
to submarine cables.
Public interest Low benefit, high cost No effect Low benefit
Insecure cables mean uncertain links The current regime recognises the Stakeholders are generally
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to global communications networks. public interest in carriers having unsure of Commonwealth and
Low penalties for damage to cables powers and immunities to install State division of
do not reflect their value to the important telecommunications responsibilities.
nation, or the public interest in their infrastructure. However, by leaving Public interest is in
protection. some potential compensation transparency of regulation.
Any sustained outage would put at obligation on the Commonwealth, it
risk A$6.2 billion of GDP derived does not balance the commercial
from international business. rewards with the full financial risks.
Cost of cable breaks and repairs is
ultimately borne by end users.
Native title No impact No impact No impact
claimants
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Option 2: Objective
Extend existing
telecommunications Security & reliability of submarine Beneficiary liable for
Consistent regulatory regime
regime to cables compensation
submarine cables
STAKEHOLDERS
Cable owners Low benefit, high cost High benefit, low cost High benefit, low cost
& operators Existing land `low impact' regime The existing regime does not Would provide for a single
provides no protection for cables. address this issue, duplicating the authority for submarine cables
Low penalties under the costs and benefits as stated in and underground cables on land.
Submarine Cable and Pipelines Option 1. Reduced compliance costs.
Act 1963 (up to $2000) provide no Would provide explicit
effective disincentive to damage authorisation to install and
cables. exemptions from State laws in
Carriers' policy is to recover the coastal waters.
cost of negligent breakages on
land, but civil damages are
generally less than actual costs.
Fishing No effect No effect No effect
industry Would provide no added incentive Would provide no protection to
21
to avoid cable damage from trawl submarine cables.
fishing or increase certainty of
rights and responsibilities.
Trading ships Low benefit, low cost No effect No effect
Would provide no added incentive Would provide no protection to
to avoid cable damage from submarine cables.
anchoring or increase certainty of
rights and responsibilities.
Resource industry No effect No effect No effect
(mining and The current low penalties for
petroleum) damaging cables are no deterrent
to resource industry operators.
The International Submarine Cable
Protection Committee, of which
the carriers are members, has
guidelines governing the co-
location of cables and pipelines.
State Governments Low benefit No effect Low benefit, high cost
Lack of protection for submarine Commonwealth law would
cables and low disincentives to override State planning laws
damage cables is not in States' regarding installation of cables.
22
interests. States may lose revenue.
States' economies benefit from States are willing to cede
landing high-capacity cables. jurisdiction to the
Commonwealth if properly
consulted on each decision.
Commonwealth No effect Low benefit, high cost Low benefit, low cost
agencies This option provides no protection The existing regime does not National Bandwidth Inquiry
for submarine cables and lacks address this issue, duplicating the considered this a `less than
extra disincentives to damage costs and benefits as stated in optimal mechanism' for
cables. Option 1. regulation.
Commonwealth agencies favour This option would provide clear
protection. authority to install cables in
Commonwealth and State waters
under a single regulator.
Environment Australia
questioned whether it is
established that submarine cables
are in fact `low-impact' facilities.
Public interest Mixed benefit, low cost No effect Low benefit, low cost
This option provides no specific The existing regime does not Stakeholders are generally unsure
protection provisions. address this issue, duplicating the of Commonwealth and State
23
Carriers are subject to a legislated costs and benefits as indicated in division of responsibilities.
Code of Practice when they install Option 1. Public interest is in transparency
and operate `low-impact' facilities. of regulation.
Low penalties for cable damage do
not reflect their value to the nation,
or the public interest in their
protection.
Native title claimants No impact No impact No benefit
Proposed activities or
developments that affect native
title may be classed as `future
acts' under the Native Title Act
1993.
A valid `future act' is necessary
to protect existing native title
rights. It is not clear that the `low
impact' regime provides this.
24
Option 3: Objective
New Zealand Security & reliability of submarine Beneficiary liable for
Consistent regulatory regime
model cables compensation
STAKEHOLDERS
Cable owners High benefit, low cost High benefit, low cost High benefit, no cost
& operators Would provide protection from the The New Zealand model does not Would provide immunity from
most likely hazards to cables. address this issue duplicating the State laws over the whole of a
Protection within zones would costs and benefits as stated in protection zone, and a single
encourage owners to install new Option 1. authority.
cables within protection zones. This model is funded from general
Increased penalties would apply revenue - no cost to cable owners.
throughout protection zones. No permission is required to lay
cables.
Fishing Mixed benefit No effect No benefit
industry Exclusion from traditional fishing This model allows no fishing in
grounds reduces the inshore areas protection zones.
available for trawlers and the need
to travel further adds to costs.
New Zealand fishing industry
bodies recognised the need for
25
protection of cables, but queried
high penalties, which can include
seizure of gear and vessels, and
forfeiture to the Crown.
Protection zones would reduce the
likelihood of fishers' incurring
liability for accidental cable
damage, and of damage to trawling
gear from cables.
Trading ships No benefit, high cost No effect No effect
The establishment of protection
zones would effectively increase
the existing areas in which
anchoring is prohibited.
Increased penalties for damaging a
cable including seizure of vessels
and forfeiture to the Crown.
Resource industry High benefit, low cost No effect No effect
(mining and New Zealand model provides
petroleum) protection for pipelines as well as
cables, and high penalties for
26
damaging them.
State Government No effect No effect Not relevant
As New Zealand is a unitary state,
this model does not fit the
Australian federal system.
Commonwealth High benefit, low cost High benefit, low cost Medium benefit, low cost
agencies Commonwealth agencies are The New Zealand model does not A single regime would be established,
supportive of good address this issue duplicating the but this model has no obligation to
communications infrastructure. costs and benefits as stated in consult with and take into account
Option 1. the interests of all affected
Commonwealth agencies.
Public interest High benefit, moderate cost No effect Moderate benefit, moderate cost
Increased security for cables The New Zealand model does not This model does not provide for
means more reliable links to global address this issue duplicating the consultation with other
communications networks. costs and benefits as stated in Option stakeholders before protection
Increased penalties for damage to 1. zones decisions are made.
cables realistically reflect their Cable owners do not need explicit
increased value to the nation, and authority to lay cables.
the public interest in their Enforcement under this model
protection. includes police and naval forces,
Reliance on submarine cables is and allows for fishing gear and
27
increasing and will continue to vessels to be removed, seized and
increase. forfeited to the Crown.
Trade and the national economy
would benefit from cheaper and
more secure communication.
Funding from general revenue
means that cable owners do not
bear the cost of protecting cables.
Native title No effect No effect No effect
claimants
28
Option 4: OBJECTIVE
Protection zones
with restricted
activities,
increased Security & reliability of submarine Beneficiary liable for compensation Consistent regulatory regime
penalties and cables
clarification of
liability provisions
STAKEHOLDERS
Cable owners High benefit, low cost High benefit, unknown cost High benefit, low cost
& operators Cable owners support this Carriers will continue to maintain Regime would provide
proposal which will encourage their powers and immunities to immunity from State laws over
owners to install new cables install telecommunications the whole of a protection zone,
within protection zones. infrastructure from which they and a single authority.
Regime would provide protection derive a commercial benefit. Compliance costs would be
from the most likely hazards to The powers and immunities will be reduced.
cables and would, over time, extended to submarine cable
reduce the need for cable owners infrastructure.
to run private patrols. The financial impact is unknown,
Increased penalties would apply but is expected to be minimal as
29
throughout protection zones. carriers' liability will only increase
The telecommunications industry if compensation for acquisition of
would pay for the cost of the property on `just terms' is
regime. determined to be more than
compensation for financial loss or
damage.
Fishing Mixed benefit No effect High benefit, low cost
industry Exclusion from traditional Formal regime, clarifying rights
fishing grounds reduces the and responsibilities, and formal
inshore areas available for consultation requirements
trawlers to work off Sydney. The would provide increased
need to travel further adds to certainty of rights and
costs. responsibilities.
A current commercial agreement
is in force under which fishers
avoid cables.
Fishing industry bodies support a
protection zone regime (if they
are involved in decision-making)
insofar as it would concentrate
cables in a small area, and reduce
30
encroachment of future cables
into other fishing areas.
Placement of cables off Perth
was negotiated with fishers.
There has been no conflict, and
fishers would be little affected by
the proposal.
Fishers off Sydney are
constrained by costs of civil
action if they damage a cable.
Protection zones would reduce
the likelihood of fishers'
incurring liability for accidental
cable damage, and of damage to
trawling gear from cables.
Fishers could be adversely
affected by increased penalties
for damage to cables.
Trading ships No benefit, high cost No effect No effect
The establishment of protection
zones would effectively increase
31
the existing areas in which
anchoring is prohibited.
Increased penalties for damaging
a cable.
Resource industry Mixed benefit, low cost No effect High benefit, low cost
(mining and Industry would welcome added A single regime would be
petroleum) communications security. established, and the right of
Mandatory consultation would affected industries to have their
require conflicting interests to be interests taken into account
formally addressed - drilling & would be acknowledged.
anchoring in prohibited zones,
cables & pipelines crossing.
Possible conflict if
petroleum/mineral explorers
want to conduct seismic activities
in protection zones - it is not
settled whether seismic activities
can damage cables.
State Government High benefit, low cost No effect Mixed benefit, low cost
State governments have an State Governments willing to
interest in reliable cede jurisdiction to
32
communications and are Commonwealth if properly
generally supportive. consulted on each decision.
States may lose revenue.
Commonwealth High benefit, low cost High benefit, low cost High benefit, low cost
agencies Commonwealth agencies have an Clarify that the beneficiary of the A single regime would be
interest in reliable acquisition of property (the carrier) established, with a requirement
communications and are is liable to pay compensation on to consult with and take into
generally supportive. `just terms'. account the interests of all
The Telecommunications Act will affected Commonwealth
remain valid under the agencies.
Constitution. Administrative costs of regime
recovered from
telecommunications industry.
Public interest High benefit, low cost High benefit, unknown cost High benefit, low cost
Increased security for cables The proposed regime maintains The public interest would be
means more reliable links to carriers' powers and immunities to served by mandatory
global communications networks. install important consultation with all
Increased penalties for damage to telecommunications infrastructure stakeholders before decisions
cables realistically reflect their in the public interest, whilst are made, transparent decision-
increased value to the nation, and balancing the obligation on making by an independent
the public interest in their carriers to be fully liable for their authority, and the tabling of
33
protection. actions. decisions in Parliament as
Reliance on submarine cables is As we are unable to quantify the legislative instruments.
increasing and will continue to financial impact on carriers, it is Explicit authority would be
increase. difficult to predict if there will be required to lay cables in
Trade and the national economy any flow-on effects to the Commonwealth-controlled
would benefit from cheaper and community in the form of waters.
more secure communication. increased costs for the provision of
The cost of regulation would be telecommunications services.
recouped from the The rights of possible claimants
telecommunications industry. will be unaffected.
Native title No effect No effect High benefit, low cost
claimants Declaration of protection zone
decisions by legislative
instrument constitutes a valid
`future act' under the Native
Title Act 1993, and preserves
native title rights.
34
1. CONCLUSION AND RECOMMENDED OPTION
Option 1: Current regime
Option 1 meets none of the objectives and is unsatisfactory. It provides no net benefit for
any stakeholder. There are no direct resource implications for the Commonwealth. This
option would provide no protection to cables and retains the disproportionate benefits for
carriers to acquire property by virtue of powers and immunities granted under the
Telecommunications Act without being fully liable for compensation on `just terms'.
Option 2: Extend existing telecommunications regime to submarine cables
Option 2 meets few of the objectives and is unsatisfactory. It would not provide
increased incentives to avoid cable damage, would not require balancing the interests of
other users of the sea and seabed and would not clarify that the liability for compensation
for acquisition of property on `just terms' should lie with the carrier rather than the
Commonwealth. It would provide consistency of terrestrial and submarine cable
regimes. Resource implications for the Commonwealth would be minimal.
Option 3: New Zealand model
Option 3 meets few of the objectives, is not suitable for Australia's federal system, would
not clarify that the liability for compensation for acquisition of property on `just terms'
should lie with the carrier rather than the Commonwealth and is unsatisfactory. Cable
owners would benefit from higher penalties. The blanket ban on all fishing and anchoring
in a protected area would not balance competing interests. The capacity for seizure of
fishing gear and vessels and forfeiture to the Crown is more coercive than other options.
It would be funded from revenue with the main impact falling on the police and naval
forces for enforcement. There would be no cost recovery from the telecommunications
industry.
Option 4: Protection zones with restricted activities, increased penalties and
clarification of liability provisions
Option 4 meets all of the objectives, balances the interests of all sea and seabed users, is
transparent, has broad support and is self-funding. It requires the interests of other sea
and seabed users to be taken into account, and minimises the impact of cables on other
users. It would provide enhanced protection for submarine cables, more consistent
planning, greater regulatory certainty, and streamlined authorisation processes, in line
with the National Bandwidth Inquiry recommendations.
This option will also clarify the original intent of the legislation to ensure the validity of
the Telecommunications Act generally, should a question arise that any provision was
otherwise contrary to s.51(xxxi) of the Constitution. In addition, the carrier would be
liable for fully compensating property owners for their actions.
35
RECOMMENDATION
It is recommended that option 4 be adopted.
6. IMPLEMENTATION AND REVIEW
Implementation
The recommended option would enable the national information infrastructure to be
protected, while the number of protection zones, and their effect on other users of the sea
and seabed, would be minimised.
The regime would apply both to existing cables of `national significance', and those
installed in the future. Currently, two cables landing in Sydney and one cable landing in
Perth are likely to be considered as nationally significant.
The proposed legislation would impose mandatory requirements on the ACA to consult
and take into account the interests of users of the sea and seabed, other than the
telecommunications industry, through an advisory committee. The ACA would publish
information about a proposed protection zone and invite people to make submissions to
the ACA.
In deciding whether a protection zone should be declared, the ACA would determine the
location and dimensions of the zone. The Bill specifies the sorts of activity that would be
prohibited or restricted in protection zones generally, and the ACA would have the power
to specify prohibited or restricted activities in a particular zone.
A standard protection zone model would reach from the shore up to the limit of the EEZ,
or to the edge of the continental shelf, whichever is the further, and up to one nautical
mile to either side of the outermost cable. These dimensions would span State-controlled
coastal waters and Commonwealth-controlled territorial seas and the EEZ.
The Constitution allows the Commonwealth Parliament to make laws with respect to
telecommunications services (section 51(v)). Submarine cables, like terrestrial
underground cables, would be authorised under Commonwealth law.
While the Telecommunications Act 1997 allows for the application of State and Territory
laws with respect to approval for the installation of some facilities, the Commonwealth
retains responsibility for the authorisation of some facilities including underground
cables, some radiocommunications facilities, and temporary defence facilities.
The protection regime would be implemented by adding a separate schedule to the
Telecommunications Act 1997, dealing with the protection and regulation of submarine
cables. The installation of submarine cables would be exempt from specified State and
Territory laws.
36
Cable owners would apply to the ACA for permits to install new cables, both in
protection zones and in Australian waters outside protection zones and State and
Territory coastal waters.
A consistent approach to the penalties applying to offences relating to cables of national
significance would be applied across all relevant Commonwealth legislation. The
Australian Federal Police would be responsible for enforcing the criminal penalty
provisions. Requirements of the Bill that are imposed on carriers (including clauses 48,
79 to 83, 85 and 86(2)) would be carrier licence conditions that may be enforced by the
ACA (see sections 61 and 68 and clause 1 of Schedule 1 of the Telecommunications Act
1997).
The ACA's declaration of a protection zone, or the variation or revocation of a
declaration, would be a legislative instrument for the purposes of the Legislative
Instruments Act 2003. Accordingly, the declaration, variation or revocation would be
registered on the Federal Register of Legislative Instruments and would be required to be
tabled in both Houses of Parliament within 6 sitting days. The ACA's declaration would
be subject to judicial review by the Federal Court under section 39B of the Judiciary Act
1903 and by the High Court under section 75(v) of the Constitution.
The protection regime would act as a significant incentive to carriers to co-locate their
submarine cables in protection zones. Protection for cables and a simplified regulatory
regime would encourage future investment in international telecommunications
infrastructure in Australia.
It would not be mandatory to locate submarine cables in protection zones. Outside a
protection zone, authorisation from the relevant State or Territory government to install a
cable in coastal waters would be required, as is the case currently, and a permit from the
ACA to install a cable in Commonwealth-controlled waters. Cables installed outside
protection zones would not enjoy protection from the prohibition or restriction of certain
activities, and the enhanced penalty provisions would not apply.
Carriers would be exempt from certain State and Territory laws when installing a
submarine cable in Commonwealth-controlled waters.
Carriers would be liable to pay any compensation that may result from actions taken
under the submarine cables protection regime and Schedule 3 to the Telecommunications
Act 1997.
Review
The ACA would review the operation of the protection zone regime and report to the
Minister within 5 years of the date on which the regime comes into operation. The
Minister would table a copy of the ACA's report in each House of Parliament within 15
sitting days of receiving the report.
37
Cost and cost recovery
Given the benefits provided for submarine telecommunications infrastructure: enhanced
protection for submarine cables; more consistent planning; greater regulatory certainty;
and streamlined authorisation processes, it is appropriate that the cost of the submarine
cables protection regime is recovered from the telecommunications industry.
Under Option 4, the ACA's costs in undertaking these activities would be fully recovered
from the telecommunications industry, by way of a Determination made under section 53
of the Australian Communications Authority Act 1997. The details of the cost recovery
arrangement will be the subject of a Cost Recovery Impact Statement prepared by the
ACA when the relevant Determination is made.
Charges will reflect the costs of providing protection zone services and are directly
related to the provision of protection zone services. The ACA uses an activity-based
costing methodology to determine the costs of regulatory functions undertaken by the
ACA as a basis for determining its charges. The ACA's cost recovery arrangements are
scheduled for review in 2005-06. The protection zones being considered for cost
recovery are relevant to the ACA's responsibility for regulation of the
telecommunications industry. Recovery of costs for these activities would be consistent
with the Government's cost recovery policy.
The ACA's indicative start up and running costs for providing protection zone services for
the first year are approximately $600,000. It is anticipated that costs will reduce to
approximately $440,000 for the second year and approximately $220,000 for the third and
future years.
38
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
AAT: Administrative Appeals Tribunal
ACA: Australian Communications Authority
ACA Act: Australian Communications Authority Act 1997
ACMA: The proposed Australian Communications and Media
Authority
ACMA Act: The proposed Australian Communications and Media
Authority Act 2005
Bill: Telecommunications and Other Legislation Amendment
(Protection of Submarine Cables and Other Measures) Bill
2004
Criminal Code Schedule to the Criminal Code Act 1995
Crimes Act: Crimes Act 1914
Minister: Minister for Communications, Information Technology and
the Arts
Telecommunications Act: Telecommunications Act 1997
39
NOTES ON CLAUSES
Part 1 - Introduction
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Telecommunications
and Other Legislation Amendment (Protection of Submarine Cables and Other
Measures) Act 2005.
Clause 2 - Commencement
Clause 2 provides for various provisions of the Bill (specified in column 1 of the table in
clause 2), when enacted, to commence on specific days.
Item 1 of the table in clause 2 provides that clauses 1 to 3 and anything in the Bill that is
not covered in the table will commence on the day on which the Bill receives the Royal
Assent. These are the introductory provisions, including the short title of the Bill, the
commencement provisions and an explanation of the Schedules to the Bill.
Item 2 of the table provides that Part 1 of Schedule 1 to the Bill will commence 28 days
after Royal Assent. This Part of the Schedule relates to the protection of submarine
cables and amends the Submarine Cables and Pipelines Protection Act 1963 and the
Telecommunications Act. The provisions set out the rules defining submarine cables
eligible for protection and the power of the ACA to declare protection zones. The 28-day
period after Royal Assent will allow for the making of any relevant regulations or other
subordinate instruments in relation to the amendments made by Schedule 1.
Item 3 of the table provides that Part 2 of Schedule 1 to the Bill will commence
immediately after the commencement of the provisions in Part 1 of Schedule 1 to the Bill.
Part 2 of Schedule 1 contains amendments that will be required if the proposed
Australian Communications and Media Authority Act 2005 (the ACMA Act) commences
before the Bill, as enacted. The ACMA Act, if enacted, will deal with the proposed
merger of the ACA and the Australian Broadcasting Authority to form the ACMA.
However, if Part 1 of Schedule 1 to the Bill commences before the establishment of the
ACMA, the amendments in Part 2 of Schedule 1 will not commence at all. In that case,
the proposed Australian Communications and Media Authority (Consequential and
Transitional Provisions) Act 2005 will make the appropriate amendments from 1 July
2005 or an earlier date to be proclaimed.
Schedule 2 to the Bill will commence on Royal Assent (item 4 of the table). This
Schedule relates to other measures and amends the Telecommunications Act. The
provisions in this Schedule relate to carrier compensation to persons when engaging in
conduct under Schedule 3 to the Telecommunications Act that results in an acquisition of
property from those persons within the meaning of section 51(xxxi) of the Constitution.
40
Clause 3 - Schedule(s)
There are two Schedules to the Bill. Schedule 1 relates to the protection of submarine
cables under the Telecommunications Act and also amends the Submarine Cables and
Pipelines Protection Act 1963. Schedule 2 amends Schedule 3 to the
Telecommunications Act.
This clause of the Bill, when enacted, will amend or repeal the Acts specified in each
Schedule to allow for the protection of submarine cables declared by the ACA, and to
provide that carriers will be required to pay compensation for acquisition of property by
carriers engaging in activities under Schedule 3 to the Telecommunications Act.
Schedule 1 - Protection of submarine cables
Part 1 - Amendments to protect submarine cables
Schedule 1 outlines a regime for establishing, enforcing and reviewing protection zones
for the purposes of the Bill. This Schedule, when enacted, will improve the security and
reliability of telecommunications services supplied by way of submarine cables and
establishes incentives to avoid damaging the cables (Part 2 of proposed Schedule 3A to
the Telecommunications Act). Part 1 of Schedule 1 contains amendments to protect
submarine cables that refer to the current regulator, the ACA. Part 2 of Schedule 1
contains amendments that will be required if the proposed Australian Communications
and Media Authority Act 2005 (the ACMA Act) commences before the Bill, as enacted.
The ACMA Act, if enacted, will deal with the proposed merger of the ACA and the
Australian Broadcasting Authority to form the ACMA.
Submarine Cables and Pipelines Protection Act 1963
Item 1 - Subsection 5(1)
Item 1 repeals subsection 5(1) of the Submarine Cables and Pipelines Protection Act
1963 and replaces it with a new subsection that makes that Act applicable only to
submarine cables and pipelines that are beneath the high seas or in the exclusive
economic zone that are not submarine telecommunications cables of national significance
as defined in clause 2 of proposed Schedule 3A to the Telecommunications Act.
The effect of the new subsection will be to remove from the Submarine Cables and
Pipelines Protection Act 1963 submarine telecommunications cables in protection zones
installed under the authority of this Bill. Cables and pipelines other than
telecommunications cables, and telecommunications cables located outside protection
zones, will continue to be covered by the Submarine Cables and Pipelines Protection Act
1963.
The Submarine Cables and Pipelines Act Protection 1963 applies to oil and gas pipelines
and high-voltage cables as well as to telecommunications cables, and applies only in
41
Australia's Exclusive Economic Zone and under the high seas, not within Australia's
territorial waters (ie. not within 12 nautical miles of the shore). This Act provides small
penalties for damaging cables or pipelines.
The National Bandwidth Inquiry recommended that the penalties for damaging a
submarine telecommunications cable be increased. The option of increasing the penalties
for damaging any cable and pipeline to the extent proposed in this Bill was considered.
One of the objectives of this legislation, however, is to provide disincentives to damaging
submarine telecommunications cables. This protection zone proposal does so by
providing an incentive to locate submarine telecommunications cables in protection zones
and thus minimise their effect on other users of the sea and seabed.
This could not be done by providing uniform penalties for damaging any cable or
pipeline, and is not consistent with the distinction in this Bill between submarine
telecommunications cables of national significance and others.
Telecommunications Act 1997
Item 2 - After Part 24
Item 2 inserts proposed new Part 24A - Submarine Cables into the Telecommunications
Act. Proposed Part 24A consists of section 484A that provides that Schedule 3A has
effect.
Schedule 3A outlines a regime for establishing, enforcing and reviewing protection zones
over submarine cables that are considered to be of 'national significance' (ie. cables that
link Australia to global networks and are vital to the national interest).
Item 3 - Clause 2 of Schedule 3 (at the end of the definition of land)
Item 3 amends the definition of `land' in Schedule 3 to the Telecommunications Act to
make it clear that it does not include land that is beneath `Australian waters' as defined in
clause 2 of proposed Schedule 3A to that Act.
Schedule 3 to the Telecommunications Act allows telecommunications carriers to `enter
on land' and exercise certain powers in relation to inspection of the land and the
installation or maintenance of a telecommunications facility. The term `land' is defined
in clause 2 of Schedule 3 to include submerged land. The amendment made by item 3
will avoid any suggestion that Schedule 3 has any application to the installation of a
submarine cable in `Australian waters'. Schedule 3 may continue, however, to be
applicable to the installation of a submarine cable on the landward side of the territorial
sea baseline.
42
Item 4 - After subclause 6(4) of Schedule 3
Item 4 inserts proposed new subclause 6(4A) after subclause 6(4) of Schedule 3 to the
Telecommunications Act. Under subclause 6(3) of Schedule 3, the Minister may
determine that a specified facility is a low-impact facility by written instrument. The
proposed new subclause will prevent the Minister from making a written instrument
determining that a submarine cable, as defined by clause 2 of proposed Schedule 3A to
the Telecommunications Act, is a low-impact facility.
Under Schedule 3, carriers can install some facilities (low-impact facilities, temporary
facilities installed for defence purposes, or where a carrier holds a facility installation
permit) under Commonwealth law, and in doing so are exempt from State, Territory and
local government laws. Low-impact facilities are covered by the Telecommunications
(Low-impact Facilities) Determination 1997, and include certain terrestrial underground
cables.
This item makes it clear that submarine telecommunications cables cannot be low-impact
facilities. The reason for this provision is that some cables owners have claimed that
submarine telecommunications cables are low-impact facilities and not subject to State or
local legislative restrictions. This provision specifies that this is not the case. However,
the definition of `submarine cable' in clause 2 makes it clear that any part of a submarine
cable that is laid elsewhere than on or beneath the Australian seabed is not a submarine
cable for the purposes of proposed Schedule 3A. This means that the land-based part of a
submarine cable will be capable of being a low-impact facility if it meets the
requirements of the Telecommunications (Low-impact Facilities) Determination 1997.
Item 5 - At the end of subclause 15(1) of Schedule 3
Item 5 inserts the words `or by Part 3 of Schedule 3A' in subclause 15(1) of Schedule 3
to the Telecommunications Act. Subclause 15(1) of Schedule 3 allows the Minister, by
written instrument, to make a Code of Practice setting out conditions that are to be
complied with by carriers in relation to any or all of the activities covered by Division 2,
3 or 4 of Schedule 3 (other than activities covered by a facility installation permit). Upon
the commencement of Schedule 1 to the Bill, the inclusion of Part 3 of Schedule 3A will
allow the Minister, by written instrument, to make a Code of Practice in relation to the
installation of submarine telecommunications cables in a protection zone or in other
Australian waters.
Item 6 - After Schedule 3
Item 6 inserts Schedule 3A - Protection of submarine cables after Schedule 3 to the
Telecommunications Act. Proposed section 484A (see item 2 of Schedule 1 to the Bill)
brings Schedule 3A into effect. Schedule 3A outlines a regime for establishing,
enforcing and reviewing protection zones over submarine cables that are considered to be
of 'national significance' (ie. cables that link Australia to global networks and are vital to
the national interest).
43
Clause 1 - Simplified outline
This clause gives a simplified outline of Schedule 3A. The outline is designed to assist
readers to understand the broad elements in the Schedule.
The outline says that:
The ACA may declare protection zones for submarine cables.
In a declared protection zone activities may be prohibited or restricted.
A telecommunications carrier intending to install a submarine cable in Australian
waters must first apply to the ACA for a permit to do so.
Clause 2 - Definitions
Proposed subclause 2(1) of the Schedule defines a number of terms used in the Bill. The
meanings of the terms in the Bill are described below, unless the contrary intention
appears.
Aboriginal person
The term `Aboriginal person' is defined to mean a person of the Aboriginal race of
Australia. Under the Bill, the ACA, in considering a proposal to declare a protection
zone or issue a permit must have regard to whether the submarine cables are being
installed at or near a thing that is of particular significance to Aboriginal persons, in
accordance with their traditions (see clauses 21 and 72 of proposed Schedule 3A to the
Bill).
advisory committee
The term `advisory committee' is defined to mean a committee established under section
51 of the ACA Act. Under that section, the ACA may establish advisory committees to
assist it in performing any of its functions. Appointments to an advisory committee are
made by the ACA from time to time and the committee may be a standing committee or
may be an ad hoc committee constituted for a particular purpose that assists the ACA in
performing its functions. The ACA will be able to give an advisory committee written
directions as to the way in which the committee is to carry out its functions and
procedures to be followed in relation to meetings.
Under the Bill, an advisory committee will be established to assist the ACA in its
considerations relating to the declaration, variation or revocation of a protection zone.
The advisory committee will consist of such persons as the ACA considers appropriate
including representatives from key sectors affected by the decision and representatives of
State and Commonwealth government agencies, and will make recommendations on each
protection zone proposal. An advisory committee established for this purpose will be an
ad hoc committee, not a standing committee, and membership is likely to vary depending
on the proposal. An advisory committee will not undertake a monitoring or enforcement
role in relation to protection zones; these functions will be undertaken by the Australian
44
Federal Police (to the extent that they relate to criminal offences) and by the ACA (to the
extent that enforcement relates to a breach of carrier licence conditions).
Australia
The term `Australia', when used in a geographical sense in proposed Schedule 3A, will
include all of the external Territories. This term is used in the definition of `Australian
waters'.
As a result of s. 17(pd) of the Acts Interpretation Act 1901, an external Territory is a
Territory, other than an internal Territory, for the government of which as a Territory
provision is made by an Act. Australia's external Territories are the Ashmore and Cartier
Islands, Christmas Island, the Cocos (Keeling) Islands, the Coral Sea Islands, Heard
Island and the McDonald Islands, Norfolk Island and the Australian Antarctic Territory.
The Territory of Norfolk Island does not normally come within the operation of the
Telecommunications Act. Proposed Schedule 3A to the Telecommunications Act, will,
however, apply in relation to the `Australian waters' surrounding Norfolk Island.
Australian waters
The term `Australian waters' is defined to mean the waters of the territorial sea (within
the meaning of the Seas and Submerged Lands Act 1973) of Australia, the waters of the
exclusive economic zone of Australia and the sea above that part of the continental shelf
of Australia that is beyond the limits of the exclusive economic zone.
The territorial waters of Australia extend 12 nautical miles from the territorial sea
baseline determined in accordance with the United Nations Convention on the Law of the
Sea (UNCLOS).
The territorial waters of Australia will include the coastal waters of a State or internal
Territory. Coastal waters are generally the first 3 nautical miles of the territorial sea
adjacent to each State and internal Territory, plus (in the case of Western Australia) some
title areas landward of the territorial sea baseline but external to the State. Waters that
are within the geographical limits of a State or internal Territory are waters that
constitutionally form part of the State or internal Territory - namely, waters that fall
within constitutional boundaries of the State or Territory. The waters that are capable of
falling within these limits are described in section 14 of the Seas and Submerged Lands
Act 1973 as bays, gulfs, estuaries, rivers, creeks, inlets, ports or harbours which were on
1 January 1901 within the limits of the States and remain within the limits of the States.
The exclusive economic zone of Australia is an area beyond and adjacent to the territorial
sea and extends 200 nautical miles from the territorial sea baseline.
The term `continental shelf' is defined for the purposes of the Seas and Submerged Lands
Act 1973 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 further.
45
The term `Australia', when used in a geographical sense in proposed Schedule 3A, is
defined separately in clause 2 to include all of the external Territories. As a result of
section 17(pd) of the Acts Interpretation Act 1901, an external Territory is a Territory,
other than an internal Territory, for the government of which as a Territory provision is
made by an Act. Australia's external Territories are the Ashmore and Cartier Islands,
Christmas Island, the Cocos (Keeling) Islands, the Coral Sea Islands, Heard Island and
the McDonald Islands, Norfolk Island and the Australian Antarctic Territory.
Under Part 2 of proposed Schedule 3A, the ACA will be able to declare a protection zone
in relation to a submarine cable installed in Australian waters. Under Part 3 of proposed
Schedule 3A, a telecommunications carrier will be able to apply to the ACA to install a
submarine cable in a protection zone or in Australian waters (other than Australian waters
that are in a protection zone or that are coastal waters).
Baseline
3 nm 12 nm 200 nm *
* or to the edge of the continental shelf
Australian waters for the purposes of this Bill
cetacean
The term `cetacean' is defined to have the same meaning as in the Environment
Protection and Biodiversity Conservation Act 1999. Section 528 of that Act defines
`cetacean' to mean a member of the sub-order Mysticeti or Odontoceti of the Order
Cetacea, and includes a part of such a member and any product derived from such a
member. Examples of cetaceans are whales, dolphins and porpoises.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on
cetaceans (see cls. 20(d), 21(a)(v), 71(b) and 72(a)(v) of proposed Schedule 3A to the
Telecommunications Act).
coastal waters
The term `coastal waters' is defined to mean the waters covered by the Coastal Waters
(State Powers) Act 1980 (Cth) or the Coastal Waters (Northern Territory Powers) Act
46
1980 (Cth). Coastal waters are generally the first 3 nautical miles of the territorial sea
adjacent to each State and the Northern Territory, plus (in the case of Western Australia)
some title areas landward of the territorial sea baseline but external to the State. This
term is used in clause 64 of proposed Schedule 3A to the Telecommunications Act.
Under the Bill, protection zones (once declared) will run through the coastal waters of a
State or the Northern Territory and certain State or Northern Territory laws will not apply
within the protection zones. Implementation and operation of the protection zones will
be under Commonwealth law, enforced by the Australian Federal Police (to the extent
that criminal offences have been committed) and by the ACA (to the extent that there has
been a breach of carrier licence conditions).
Commonwealth marine area
The term `Commonwealth marine area' is defined to have the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999. Section 24 of that Act
defines what is meant by a `Commonwealth marine area'.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on the
environment within a Commonwealth marine area (see cls. 20(d), 21(a)(iv), 71(b) and
72(a)(iv) of proposed Schedule 3A to the Telecommunications Act).
conduct
The term `conduct' is used in the definition of `engage in conduct' and also in cls. 36, 37,
38, 40, 41, 42, 45, 46 and 85 of proposed Schedule 3A to the Telecommunications Act.
It is defined to mean an act, an omission to perform an act or a state of affairs.
continental shelf
The term `continental shelf' is defined to have the same meaning as in the Seas and
Submerged Lands Act 1973. The term `continental shelf' is defined for the purposes of
that Act 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 further. This term is used in the definition of `Australian
waters'.
declared Ramsar wetland
The term `declared Ramsar wetland' is defined to have the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999. Section 17 of that Act
defines what is meant by a `declared Ramsar Wetland'.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
47
installation, maintenance or operation of the cable could have an adverse effect on the
ecological character of a declared Ramsar Wetland (see cls. 20(d), 21(a)(viii), 71(b) and
72(a)(viii) of proposed Schedule 3A to the Telecommunications Act).
declared World Heritage property
The term `declared World Heritage property' is defined to have the same meaning as in
the Environment Protection and Biodiversity Conservation Act 1999. Section 13 of that
Act defines what is meant by a `declared World Heritage property'.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on the
world heritage values of a declared World Heritage property (see cls. 20(d), 21(a)(ix),
71(b) and 72(a)(ix) of proposed Schedule 3A to the Telecommunications Act).
ecological character
The term `ecological character' is defined to have the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999. Subsection 16(3) of
that Act provides that the term `ecological character' has the same meaning as in the
Ramsar Convention (the Convention on Wetlands of International Importance especially
as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971, as in force for Australia
immediately before the commencement of that Act on 16 July 2000).
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on the
ecological character of a declared Ramsar wetland (see cls. 20(d), 21(a)(viii), 71(b) and
72(a)(viii) of proposed Schedule 3A to the Telecommunications Act).
ecological community
The term `ecological community' is defined to have the same meaning as in the
Environment Protection and Biodiversity Conservation Act 1999. Under the Bill, the
ACA, when deciding whether to declare a protection zone or grant a permit, must have
regard to various environmental factors in clauses 21 and 72 of proposed Schedule 3A
including whether the installation, maintenance or operation of a submarine cable will
damage, adversely effect or significantly impede the recovery of a threatened ecological
community.
engage in conduct
The term `engage in conduct' is defined to mean to do an act or omit to do an act. Under
the Bill, engaging in conduct is an element of the offences in relation to protection zones
under Division 4 of Part 2 of proposed Schedule 3A and the offences relating to the
installation of submarine cables under Division 5 of Part 3 of proposed Schedule 3A.
48
environment
The term `environment' is defined to have the same meaning as in the Environment
Protection and Biodiversity Conservation Act 1999. Section 528 of that Act defines the
term as follows:
environment includes:
(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) heritage values of places; and
(e) the social, economic and cultural aspects of a thing mentioned in paragraph (a),
(b) or (c).
Note: The places mentioned in paragraph (d) of the definition of environment include
places included in the Register of the National Estate kept under the Australian
Heritage Council Act 2003.
Under the Bill, the ACA, when deciding whether to declare a protection zone or grant a
permit, must have regard to the impact on the environment, including various
environmental factors in clauses 21 and 72 of proposed Schedule 3A.
Environment Secretary
The term `Environment Secretary' is defined to mean the Secretary of the Department
administering the Environment Protection and Biodiversity Conservation Act 1999,
currently the Secretary of the Commonwealth Department of the Environment and
Heritage. Under the Bill, the ACA must not declare a protection zone vary or revoke a
protection zone declaration, or grant a permit unless it has consulted with the
Environment Secretary in relation to the proposal to declare a zone or grant a permit and
had regard to any advice or recommendations provided by the Environment Secretary.
exclusive economic zone
The term `exclusive economic zone' is defined to have the same meaning as in the Seas
and Seas and Submerged Lands Act 1973. The exclusive economic zone is an area
beyond and adjacent to the territorial sea (12 nautical miles from the territorial sea
baseline) and extends to the High Seas (200 nautical miles from the territorial sea
baseline). This term is used in the definition of `Australian waters'.
installation
The term `installation', in relation to a submarine cable, is defined to mean the laying of
the cable on or beneath the seabed, and the attachment of the cable to any other cable or
thing, and any other activity that is ancillary or incidental to the installation.
`Installation' therefore includes an activity covered by the laying of the cable or the
attachment to it of any other thing.
49
international agreement
The term `international agreement' is defined to mean a convention to which Australia is
a party or an agreement or arrangement between Australia and a foreign country.
International agreements will include agreements, arrangements or understandings
between a Minister, an official or authority of a foreign country. This term is used in the
definition of `listed international agreement'.
listed international agreement
The term `listed international agreement' is defined to mean an agreement that is a listed
international agreement for the purposes of Schedule 3 to the Telecommunications Act
and an international agreement specified in regulations made for the purposes of this
definition. Listed international agreements for the purposes of Schedule 3 to the
Telecommunications Act are specified in Schedule 1 to the Telecommunications
Regulations 2001. The definition of `listed international agreement' in the Bill will,
however, allow this list to be expanded by the making of regulations for the purposes of
the definition.
Under clauses 21 and 72 of proposed Schedule 3A, the ACA, when considering a
proposal for a protection zone or an application for a permit, must ascertain whether a
carrier is seeking to install, maintain or operate a submarine cable in a place that
Australia is required to protect by the terms of a listed international agreement. Under
clause 82 of proposed Schedule 3A, a telecommunications carrier will also be required to
ensure that the installation of a submarine cable in a protection zone or in Australian
waters (other than coastal waters of a State or Territory) is done in a manner that is
consistent with Australia's obligations under a listed international agreement that is
relevant to the installation.
listed marine species
The term `listed marine species' has the same meaning as in section 248 of the
Environment Protection and Biodiversity Conservation Act 1999, which requires the
Minister for the Environment and Heritage to establish a list of marine species for the
purposes of Part 13 of that Act.
Under the Bill, the ACA, when considering a proposal for a protection zone or an
application for a permit, must have regard as to whether the installation, maintenance or
operation of submarine cables could have an adverse effect on a listed marine species
(see clauses 21 and 72 of proposed Schedule 3A).
listed migratory species
The term `listed migratory species' is defined to have the same meaning as in the
Environment Protection Biodiversity Conservation Act 1999. A listed migratory species
is a species included in the list referred to in section 209 of that Act.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
50
installation, maintenance or operation of the cable could have an adverse effect on a
listed migratory species (see cls. 20(d), 21(a)(vi), 71(b) and 72(a)(vi) of proposed
Schedule 3A to the Telecommunications Act).
listed threatened species
The term `listed threatened species' is defined to have the same meaning as in the
Environment Protection Biodiversity Conservation Act 1999. A listed threatened species
is a native species included in the list referred to in section 178 of that Act.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on a
listed threatened species or impede the recovery of such a species (see cls. 20(d),
21(a)(ii), 71(b) and 72(a)(ii) of proposed Schedule 3A to the Telecommunications Act).
National Heritage List
The term `National Heritage List' is defined to have the same meaning as in the
Environment Protection Biodiversity Conservation Act 1999. The National Heritage List
is the list kept under Subdivision B of Division 1A of Part 15 of that Act.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on the
National Heritage values of a place included in the National Heritage List (see cls. 20(d),
21(a)(vii), 71(b) and 72(a)(vii) of proposed Schedule 3A to the Telecommunications
Act).
National Heritage value
The term `National Heritage value' is defined to have the same meaning as in the
Environment Protection Biodiversity Conservation Act 1999. Section 324D of that Act
defines what is meant by a `National Heritage value'.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on the
National Heritage values of a place included in the National Heritage List (see cls. 20(d),
21(a)(vii), 71(b) and 72(a)(vii) of proposed Schedule 3A to the Telecommunications
Act).
non-protection zone installation permit
The term `non-protection zone installation permit' is defined to mean a permit under
Division 3 of Part 3 of Schedule 3A (see clauses 64 to 77 of proposed Schedule 3A).
Under the Bill, the ACA has responsibility for granting or refusing to grant permits (non-
51
protection zone installation permits) to licensed carriers for the installation of submarine
cables in Australian waters outside protection zones. Cable owners will not be prohibited
from installing cables outside protection zones, but those cables will be subject to
existing State and Northern Territory laws in coastal waters and will not have the benefit
of the regime established under the Bill.
protection zone
The term `protection zone' is defined to mean a protection zone declared by the ACA
under clause 4 of proposed Schedule 3A to the Telecommunications Act. Under the Bill,
the declaration of a protection zone will be made by way of a legislative instrument for
the purposes of the Legislative Instruments Act 2003. The declaration will therefore be
required to be registered on the Federal Register of Legislative Instruments, tabled in
both Houses of Parliament within 6 sitting days of being registered and will be subject to
Parliamentary disallowance.
Protection zones will run through coastal waters of the States or Northern Territory and
through the Commonwealth-controlled territorial sea, including the waters of external
territories, up to the limit of the exclusive economic zone or the edge of the continental
shelf, whichever is the further. Under clause 9, a protection zone in relation to one
submarine cable is a maximum of one nautical mile wide on either side of the outermost
cable with the outer limit allowable as far as 200 nautical miles from shore or the edge of
the continental shelf, whichever is the further. The ACA may declare a protection zone
less than this area. Before declaring a protection zone the ACA must develop a proposal,
consult on the proposal and satisfy the other prerequisites of Subdivision B of Division 2
of Part 2 of proposed Schedule 3A.
protection zone installation permit
The term `protection zone installation permit' is defined to mean a permit issued under
Division 2 of Part 3 of proposed Schedule 3A. Under this Division, a carrier must apply
to the ACA to install a submarine cable in a protection zone. If the permit is granted by
the ACA the carrier will be issued with a protection zone installation permit. A charge
will be imposed on the application by way of a determination under section 53 of the
ACA Act.
ship
The term `ship' is defined to mean a vessel of any kind used in navigation by water. The
term applies to such vessels regardless of how they are propelled or moved. This term is
used in various offence and offence-related provisions (see, for example, clauses 38, 39,
42, 44 and 46 of proposed Schedule 3A to the Telecommunications Act).
The definition will include, for example, submarines and all commercial and recreational
surface vessels.
submarine cable
The term `submarine cable' is defined to mean the part of a line link that lies beneath
Australian waters and has been laid for purposes that include connecting Australia with a
52
place outside Australia. The term `line link' is defined in section 30 of the
Telecommunications Act. A `line' constitutes a line link and is separately defined in
section 7 of that Act to mean a wire, cable, optical fibre, tube, conduit, waveguide or
other physical medium used, or for use, as a continuous artificial guide for or in
connection with carrying communications by means of guided electromagnetic energy.
The term `submarine cable' also includes any device attached to that part of the line link,
if the device is used in or in connection with the line link. This would include, for
example, a repeater or regenerator. Under the Bill, submarine cables are seen as critical
communications links that need greater protection to ensure they are better secured
against damage.
A note to the definition makes it clear that any part of a line link that is laid elsewhere
than on or beneath the Australian seabed, and any device attached to such part of a line
link, is not a submarine cable for the purposes of proposed Schedule 3A. This means that
the installation of the land-based part of a submarine cable will not be governed by
proposed Schedule 3A but rather by Schedule 3 to the Telecommunications Act (for
example as a low-impact facility) or State or Territory laws if Schedule 3 does not apply.
This means that it will be possible for cables to be covered either by Schedule 3 or
Schedule 3A to the Telecommunications Act for the whole of their length within any
Australian jurisdiction. Terrestrial underground cables normally come within the ambit
of the Telecommunications (Low-Impact Facilities) Determination 1997. These
provisions cover cables to the edge of `Australian waters' - that is, to baselines
determined in accordance with the United Nations Convention on the Law of the Sea,
typically the mean low-water mark. Seaward of that point, cables come within this
definition of `submarine cable' and will be governed by proposed Schedule 3A to the
Telecommunications Act.
The effect of this Bill together with existing legislative arrangements will be to allow the
installation of underground telecommunications cables, terrestrial and (for cables of
national significance) submarine, with immunity from State and Territory planning laws,
within Australia and as far as 200 nautical miles from shore or to the edge of the
continental shelf.
threatened ecological community
The term `threatened ecological community' is defined to mean an ecological community
that is included in the list of threatened ecological communities kept under Division 1 of
the Part 13 of the Environment Protection and Biodiversity Conservation Act 1999.
Threatened ecological communities can be classed as critically endangered, endangered
or vulnerable when listed.
Under the Bill, the ACA, when considering a proposal for a protection zone or an
application for a permit, must consider whether the installation, maintenance or operation
of submarine cables could have an adverse effect on a threatened ecological community
(see clauses 21 and 72 of proposed Schedule 3A).
53
threatened species
The term `threatened species' is defined to mean a species that is included in one of the
following species lists kept under Division 1 of Part 13 of Environment Protection and
Biodiversity Conservation Act 1999:
(a) extinct in the wild;
(b) critically endangered;
(c) endangered; or
(d) vulnerable.
Under the Bill, the ACA must have regard, when considering a proposal for a protection
zone and/or an application for a permit for a submarine cable, to whether the installation,
maintenance or operation of the submarine cable could threaten the extinction or
significantly impede the recovery of a threatened species on the species lists (see clauses
21 and 72 of proposed Schedule 3A).
Torres Strait Islander
The term `Torres Strait Islander' is defined to mean a descendant of an indigenous
inhabitant of the Torres Strait Islands. Under the Bill, the ACA, in considering a
proposal to declare a protection zone or issue a permit for the installation of a submarine
cable, must have regard to whether the cable is being installed at or near a thing that is of
particular significance to Torres Strait Islanders, in accordance with their traditions (see
clauses 21 and 72 of proposed Schedule 3A).
world heritage values
The term `world heritage values' is defined to have the same meaning as in the
Environment Protection Biodiversity Conservation Act 1999. Subsection 12(3) of that
Act provides that a property has `world heritage values' only if it contains natural
heritage or cultural heritage as defined in the World Heritage Convention (the
Convention for the Protection of the World Cultural and Natural Heritage done at Paris
on 23 November 1972, as in force for Australia immediately before the commencement
of that Act on 16 July 2000). The world heritage values of a property are the natural
heritage and cultural heritage contained in the property.
In deciding whether to declare a protection zone in relation to a submarine cable that is
yet to be installed, or in deciding whether to grant a non-protection zone installation
permit, the ACA is required, among other things, to have regard to whether the
installation, maintenance or operation of the cable could have an adverse effect on the
world heritage values of a declared World Heritage property (see cls. 20(d), 21(a)(ix),
71(b) and 72(a)(ix)).
Reference to the location of a submarine cable
Subclause 2(2) of proposed Schedule 3A provides that, in relation to a submarine cable
that is yet to be installed, a reference in the Schedule to the location of a submarine cable
includes a reference to the proposed location of the cable.
54
Part 2 - Protection zones
Part 2 of proposed Schedule 3A sets out the principles by which the ACA can declare a
protection zone.
Division 1 gives a simplified outline of Part 2. Division 2 provides for the declaration of
protection zones, including the development of proposals for protection zones, the
imposition of prohibitions and restrictions on activities in protection zones and the
prerequisites for declaring a protection zone. Division 3 deals with the ACA's ability to
vary or revoke a declaration of a protection zone. Division 4 provides for offences in
relation to a protection zone. Division 5 includes miscellaneous provisions relating to
claiming damages where loss or damage arises from certain activities in a protection zone
and provisions relating to the composition of advisory committees for the purposes of
Part 2.
Division 1 - Simplified outline
Clause 3 - Simplified outline
Clause 3 gives a simplified outline for Part 2. The ACA may declare a protection zone in
relation to a submarine cable of national significance installed in Australian waters and
must consult with an advisory committee, the Environment Secretary and the public
before making the declaration. A declaration for a protection zone may specify the
activities that are prohibited or restricted in the zone. If a declaration does not specify
prohibited or restricted activities, then default provisions under clause 10 and 11 will
apply. The simplified outline notes that it is an offence to damage a cable, engage in
prohibited activities or contravene imposed restrictions on activities in a protected zone.
Division 2 - Declaration of protection zones
Subdivision A - Declarations
Before the ACA declares a protection zone it must comply with the requirements of
Subdivision B of Division 2 of Part 2. Subdivision B requires the ACA to develop a
proposal for a protection zone; refer the proposal to an advisory committee; publish the
proposal seeking public comment; determine that the cable in question is a cable of
national significance; and consult with the Environment Secretary. The ACA must have
regard to any recommendations of the advisory committee; any public submissions;
relevant environmental considerations; the objective of facilitating the supply of carriage
services to the public, and any other matters that it considers relevant before declaring a
protection zone.
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Clause 4 - ACA may declare a protection zone
This clause provides that the ACA may declare a protection zone in relation to one or
more submarine cables, whether they are existing cables or cables proposed to be
installed, in Australian waters. Under clause 18, the ACA must be satisfied that a cable is
a cable of national significance before a protection zone is declared in relation to it.
A protection zone declaration is a legislative instrument for the purposes of the
Legislative Instruments Act 2003. It is therefore required to be tabled in both Houses of
Parliament and is subject to Parliamentary disallowance. The decision to declare a
protection zone will involve extensive consultation to balance the competing interests of
stakeholders, including those persons using the area where a zone is declared.
There are two main purposes of a protection zone. The first is to provide a more effective
deterrent to stop people who may undertake activities that have the potential to damage
submarine cables of national significance, as set out in clauses 10 and 11. The protection
afforded will minimise the effect of the cables on other users of the sea and seabed.
The second purpose is to enable cable planning and location decisions to be taken in a
more considered way, taking into account the interests of other users of the sea and
seabed. This will encourage carriers to co-locate cables in protection zones.
Clause 5 - Declaration on ACA's initiative or in response to request
This clause says that a declaration of a protection zone may be made at the request of a
person or on the ACA's own initiative.
The ACA's decision-making role in relation to a protection zone includes the decision to
declare a protection zone and once declared the ACA may vary or revoke the protection
zone. Carriers or other persons or the ACA will be able to initiate the declaration process.
Any person will be able to initiate proposals to vary or revoke protection zone
declarations (see Division 3 of Part 2). This will allow carriers to request the ACA to
adjust, for example, the dimensions of a protection zone to allow for emergent
circumstances. It will allow other users of the sea and seabed (for example, commercial
fishers, recreational fishers, petroleum explorers) to prompt the ACA to vary or revoke a
protection zone declaration to better take account of their interests, where necessary. The
ACA will also be able to vary or revoke a protection zone declaration.
Clause 6 - Response to a request to declare a protection zone
This clause says that, in response to a request to declare a protection zone by a person,
the ACA may decide to develop a proposal for a protection zone, and if the ACA so
decides it must then give the person a copy of its proposal. If the ACA decides not to
develop a proposal for a protection zone, in response to a request to declare a protection
56
zone, it must then notify the requesting person in writing providing reasons for its
decision.
Providing the ACA with the power not to develop a protection zone proposal will ensure
that frivolous, vexatious or inadequately supported requests can be dealt with in an
appropriate way.
`Developing a proposal' will require the ACA to specify the nominal location of the
cable, the area proposed to be covered by the protection zone (where this is different from
that specified in clause 9), and the activities proposed to be prohibited or restricted (see
clause 15).
Clause 7 - Decision not to declare a requested protection zone or to declare a
different protection zone
This clause says that if the ACA develops a protection zone proposal in response to a
request from a person but subsequently decides not to declare a protection zone, the ACA
must notify the person in writing providing reasons for its decision. A decision not to
declare a protection zone will not be reviewable on its merits by the AAT, but may be
subject to judicial review.
If the ACA develops a protection zone proposal in response to a request from a person
but then declares a protection zone that is different from the proposed protection zone,
the ACA must provide the person with a copy of the declaration.
Clause 8 - Location of submarine cable to be specified in declaration
This clause says that a protection zone declaration in relation to one or more submarine
cables must specify a nominal location of the cable or cables in all Australian waters in
which the cable is installed (regardless of whether this is in fact the actual location of the
cable or cables). The protection zone declaration must not specify a location for the cable
outside Australian waters as defined in clause 2.
The location must be expressed in geographic coordinates and must include the geodetic
datum to which the coordinates refer (see subclause 8(2)). The reference to geographic
coordinates means a set of 2 pieces of information, specifically the measurement of
longitude and the measurement of latitude of a specific point, but this information does
not in itself provide the means of identifying the position of a particular point on the
surface of the Earth with any accuracy. A datum, the reference surface for the latitude
and longitude, must also be given, as there is more than one datum that could be used.
The geodetic datum is the mathematical model of the Earth used to determine the exact
position of geographic coordinates having regard to the curvature of the Earth.
The location of a submarine cable will typically be described by giving latitude and
longitude at points along the length of the cable from the landing point. The actual
location of a submarine cable may change over time, either because of ocean currents or
57
movements of the seabed, repairs to the cable, or contact of the cable with fishing
equipment.
The location of a cable specified by the ACA under clause 8 provides a starting point
from which the maximum width of a protection zone can be measured, and provides the
basis for the nominal location of the cable as defined in subclause 9(6).
This clause ensures that the boundaries of a protection zone as specified under clause 9,
and therefore its area, can be established with precision even if the cable is not laid
precisely at the nominal location, or if the cable moves after it is laid. The protection
zone boundaries will be specified and fixed.
Clause 9 - Area of a protection zone
This clause provides for the area of a protection zone. In the case of a single cable, a
protection zone consists of an area not more than one nautical mile either side of the
points on the surface of the sea above the nominal location of the cable, as required by
clause 8, and includes the waters, sea and subsoil beneath that area, unless otherwise
specified in the declaration by the ACA. That is, one nautical mile will be the maximum
distance but the ACA will be able to declare a narrower zone (see subclause 9(3)). It is
possible that the ACA may wish to specify a protection zone narrower than two nautical
miles, if there are particular local features or protection techniques used by cable owners,
such as trenching and burying.
If a cable leaves one area of Australian waters and subsequently enters another area of
Australian waters, the protection zone in relation to that cable will cover both areas of
Australian waters.
In the case of more than one cable, a protection zone consists of the area between the
nominal location of each cable and the area no more than one nautical mile from the
outside edge of the points on the surface of the sea above the nominal location of the two
outermost cables. The area of the protection zone will include the waters, sea and subsoil
beneath that area, unless otherwise specified in the declaration by the ACA. One nautical
mile from the outermost cable will be the maximum distance but the ACA will be able to
declare a narrower zone (see subclause 9(5)).
The outer limit of a protection zone will extend up to the limit of Australia's exclusive
economic zone or to the edge of the continental shelf, whichever is the further, as defined
in clause 2, and includes the waters, sea and subsoil beneath that area, unless otherwise
specified in the declaration by the ACA. That is, Australia's exclusive economic zone or
the edge of the continental shelf will be the maximum outer distance, but the ACA will
be able to declare a shorter outer limit for the protection zone. It is possible that a carrier
may request the ACA to specify a particular outer limit distance for a protection zone
proposal.
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Clause 8 requires that a protection zone declaration specify a nominal location, which
serves as the starting point from which the maximum width of a protection zone is
measured. The term nominal location means the location of the submarine cable or
cables as specified in the declaration of the protection zone at the time the declaration is
made. This specification will apply regardless of the actual location of the cable or
cables either at the time the declaration is made or subsequently.
The nominal location of the submarine cable is important for the threshold issue of
determining the location of the protection zone for the purposes of making the
declaration. Cable-laying ships cannot guarantee to lay cables precisely at the nominal
location, particularly in deep water. In addition, the actual location of a submarine cable
may change over time because of ocean currents or movements of the seabed, or because
of repairs to the cable or contact of the cable with fishing gear.
References to the nominal location of a submarine cable become important when
considering restrictions within a protection zone. For example, petroleum exploration
may be allowed within half a nautical mile of a cable if certain actions are taken to
prevent damage to the cable.
Clause 10 - Prohibited activities
This clause allows the ACA to prohibit certain activities in a protection zone. Along with
clauses 11 and 12, it forms a framework for regulating activities in protection zones that
is intended to minimise the possibility of damage to cables.
This clause says that the ACA may specify, in a declaration of a protection zone,
activities that are prohibited in the protection zone. If the ACA's declaration does not
specify any prohibited activities, the activities specified in subclause 10(4) will be
prohibited.
The particular focus of this clause is to prohibit activities that are likely to result in a
physical connection between a ship or other object and the seabed that are capable of
damaging a cable. This clause prohibits activities that constitute a serious threat of
damage to a submarine cable, including:
fishing in protection zones using trawl gear, pots, traps, dredges, jigs, nets, seines,
lines, and fish aggregating devices of all kinds in which any part of the equipment
used is designed to rest on or to work at or near the seabed;
the towing, operating or suspending from a ship in a protection zone of equipment
used in those kinds of fishing, even if the equipment would not reach to the seabed in
the circumstances in which it is being used;
the raising, lowering and suspending of such equipment, or having such equipment
outside the hull of a ship, within a protection zone for any purpose. (For example, it
will prohibit having a net over the side of a ship to clean it.)
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Trawl gear is towed behind a vessel. Some kinds pull heavy equipment across the sea
bottom, which can easily damage cables.
There are many types of pots and traps used to catch fish and shellfish, including lobster,
octopus and crabs. Generally a number of pots are loaded on board a vessel, set on the
bottom and retrieved after a few hours or days. They can be marked by a line and buoy,
or may be set in series attached to branch lines along a main line. They do not penetrate
the bottom, but can easily snag a cable on top of the seabed.
Traps are stationary structures into which fish swim but cannot escape. They are usually
fixed to the bottom in shallow water with anchors or stakes.
Dredges include, but are not confined to, fishing dredges, which are dragged across the
bottom and used to collect molluscs such as clams and scallops in a rigid frame or mesh
bag. They include mechanised (hydraulic) dredges that shoot high pressure streams of
water into the seabed to dig out molluscs, which are collected in a metal frame.
Squid jigs are artificial hooked lures that may look like prawns or small fish. They are
generally cast and retrieved using a fishing rod.
Fish aggregating devices are used to attract fish, not to catch them. A simple type is an
anchored buoy which has objects attached and suspended in the water, such as plastic
floats, foam blocks or palm branches.
Seines are nets, often with a bag for the catch, which hang vertically in the water, with
floats at the top and weights at the bottom. Types include haul seines, which are
generally dragged by one or more people parallel to shore, and Danish seines, in which
one end of a seine is made fast to a buoy and the other is towed by a boat in a wide arc
and back to the buoy.
This clause also prohibits within a protection zone:
anchoring a ship (as defined in clause 2), including lowering, raising or suspending an
anchor from a ship;
sand mining;
exploring for resources or exploiting resources. This covers resources of all kinds
other than fish, and may include exploring for and exploiting petroleum and minerals
in the sea and on or under the sea bed;
mining activities and the use of mining techniques, including activities preparatory or
ancillary to mining;
any activity that involves a serious risk that an object connected to the surface or
attached to a ship (as defined in clause 2) will connect with the seabed, if a
connection between the object and a submarine cable would be capable of damaging
the cable. This will enable the ACA to prohibit activities dangerous to submarine
cables that may be developed in the future.
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An activity which, if done near a submarine cable, involves a serious risk of damaging a
cable may be specified in the regulations to be a prohibited activity.
An activity dangerous to submarine cables not specifically listed as a prohibited activity
(but which may amount to a prohibited activity in certain circumstances) is dumping,
which is the deliberate disposal into the sea of wastes or other matter from vessels.
Dumping is prohibited under the Environment Protection (Sea Dumping) Act 1981.
Heavy penalties apply for offences under this Act.
Clause 11 - Restricted activities
The particular focus of this clause is on activities that involve techniques and equipment
in the water that are less likely than those specified in clause 10 to result in physical
contact between a ship or other object and the seabed but that, if they occur, could still
damage a cable. This clause will enable the ACA to restrict activities that constitute a
threat of damage to a submarine cable, but a less serious threat than the activities
specified in clause 10.
This clause says that the ACA may specify restrictions on activities in a protection zone
in the protection declaration.
This will enable the ACA to restrict in a protection zone fishing operations that are not
prohibited, specifically types of fishing that do not use equipment designed to rest on or
to work at or near the seabed. This includes fishing with nets that are above the seabed at
all times, the towing, operating or suspension from a ship of fishing equipment other than
that specified in clause 8(3)(b), and line fishing whether from a ship or boat, or from the
shore, rocks or beach.
The ACA may specify restrictions to apply in a protection zone to the installation,
maintenance and removal of cables and pipelines of all kinds, including electricity cables
and oil and gas pipelines. The ACA may for example specify the conditions on which a
pipeline can cross a submarine cable, or the conditions on which a pipeline can be
installed in a protection zone.
The ACA may impose restrictions in a protection zone on the construction, maintenance
and removal of an installation for the use of ships, such as a wharf, jetty, boat ramp or
slipway, or of a navigational aid such as a buoy.
The ACA may impose restrictions in a protection zone on any activity that involves a risk
that an object connected to the surface or attached to a ship (as defined in clause 2) will
connect with the seabed, if a connection between the object and a submarine cable would
be capable of damaging the cable. This will enable the ACA to impose restrictions on
activities dangerous to submarine cables that may be developed in the future.
An activity which, if done near a submarine cable, involves a risk of damaging a cable
may be specified in the regulations to be a restricted activity.
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Clause 12 - Conditions
This clause allows the declaration of a protection zone to be made subject to any
conditions the ACA considers appropriate.
Where a protection zone is declared with conditions, the declared conditions may include,
for example, the provision of onshore signage relating to the protection zone or the
provision of marine user education. The conditions imposed by way of a declaration may
vary from zone to zone and within zones. The ACA is able to vary conditions at any
time. Where a protection zone is declared with conditions, those conditions remain in
force until modified or extinguished by the ACA, or until the protection zone declaration
is revoked (see clause 23).
The purpose of this clause is to give the ACA some flexibility in administering the
submarine cable protection regime. The nature of the conditions that the ACA may
impose on a protection zone declaration is not limited; conditions may for example relate
to matters raised when the Environment Secretary is consulted under clause 19.
Clause 13 - When a declaration takes effect
This clause allows the ACA to specify the time at which a protection zone declaration
comes into effect.
Where a protection zone is declared for a cable or cables not yet installed, the declaration
cannot come into effect at a time before the time the ACA is satisfied that the installation
of the cable or cables will begin.
The purpose of this clause is to ensure that the restrictions, conditions and prohibitions
made in relation to the protection zone do not unnecessarily apply before they have to, ie.
before there is a cable in the water.
Clause 14 - Duration of declaration
This clause provides that a protection zone declaration continues in effect until revoked
by the ACA regardless of whether or not there is an active cable in the protection zone.
Revocation of a declaration of a protection zone is dealt with in Division 3 of Part 2 of
proposed Schedule 3A.
Until the declaration of a protection zone is revoked, the offence provisions in Division 4
of Part 2 of proposed Schedule 3A will therefore continue to apply even if the cable is not
operative.
The purpose of this clause is to require a formal decision by the ACA before the
restrictions, conditions and prohibitions in a protection zone cease to apply. These
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restrictions will not cease to apply, for example, merely because a cable is temporarily
out of service.
Subdivision B - Prerequisites to declaration of a protection zone
Clause 15 - ACA to develop a proposal for a protection zone
This clause says that before the ACA declares a protection zone it must develop a
proposal for the declaration of the zone. A proposal for the declaration of a protection
zone may be made in relation to existing or proposed submarine cables of national
significance. The proposal must include a statement of the nominal location of the cable
or cables in Australian waters, details of the area of proposed protection zone where the
maximum protection zone width or outer limit specified in clause 9 do not apply, as well
as details of prohibited or restricted activities for the proposed protection zone.
This clause requires the ACA to specify enough detail of its proposal so that the advisory
committee and the public will understand what is intended.
Subclause 15(3) provides that an ACA proposal for a protection zone is not a legislative
instrument. This does not exempt an ACA proposal from the operation of the Legislative
Instruments Act 2003 because such a proposal would not fall under the definition of a
legislative instrument in section 5 of that Act in any event. However, because such a
proposal is an `instrument' that is not expressly excluded by the Legislative Instruments
Act or the Legislative Instruments Regulations 2004, it is the policy of the Office of
Parliamentary Counsel to include a provision along the lines of subclause 15(3) to make
the status of the instrument obvious on its face. Subclause 15(3) is for information only.
Clause 16 - ACA to refer proposal to advisory committee
This clause says that the ACA must refer any proposal for a protection zone to an
advisory committee.
The ACA will be able to give an advisory committee written directions as to the way in
which the committee is to carry out its functions and procedures to be followed in
relation to meetings (see subsection 51(3) of the ACA Act).
An advisory committee may make recommendations to the ACA. If it does not make
recommendations, the committee must give the ACA a statement of the opinion of each
member of the committee about the proposal. Clause 20 requires the ACA to have
regard to the recommendations or statements of opinion of the advisory committee. The
advisory committee is established under section 51 of the ACA Act, and is likely to be an
ad hoc committee, constituted on a case-by-case basis to examine a particular proposal.
The membership of an advisory committee may vary from time to time.
Clause 49 deals with the composition of advisory committees.
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This clause provides a formal mechanism that will allow representatives of stakeholder
groups likely to be affected by a protection zone to examine and consider the proposal,
and have their views taken into account by the ACA in its decision-making. This flows
from the desire to fairly balance the needs of various users of the sea and seabed.
Clause 17 - ACA to publish proposal
This clause says that the ACA is required to publish a proposal developed for the
declaration of a protection zone and invite public submissions on the proposal. The
proposal must be published in the Commonwealth of Australia Gazette, on the ACA's
Internet website and in a newspaper with general circulation in each State and internal
Territory, and in any affected external Territory. The ACA may publish a proposal at the
same time that it refers the proposal to an advisory committee. Details to be published
are outlined at clause 15.
This clause will allow members of the public to examine and consider a proposal, and
make submissions that the ACA must have regard to in its decision-making.
Clause 18 - Cable must be a submarine cable of national significance
This clause says that a protection zone cannot be declared by the ACA in respect of one
or more cables unless it is satisfied that the cable is or will be of national significance.
Submarine cables of national significance are generally high capacity cables that link
Australia to global communications systems and that are vital to the national interest.
Using the criterion of national significance ensures that national information
infrastructure is protected while the number of protected areas, and their effect on other
users of the sea, is minimised.
For example, three submarine cables that are particularly important to the national
economy and link Australia to global communications systems at present are the
Australia-Japan cable which links Sydney with Japan and then the US, the Southern
Cross cable which links Sydney with New Zealand and Fiji, then the US and the SEA-
ME-WE3 cable which links Perth with Jakarta, Singapore and then Europe.
In the case of a decision relating to a submarine cable that is yet to be installed, the ACA
must determine that the cable will be a cable of national significance before a protection
zone is declared.
The ACA will have a discretion to determine what constitutes a cable of national
significance. For example, the ACA may treat a particular cable as a cable of national
significance if it is vital for national security, defence or other purposes.
Note that the definition of `submarine cable' in clause 2 includes only cables that have as
one of their purposes the connection of Australia with a place outside Australia. It
therefore excludes, for example, those cables the only purpose of which is to connect one
Australian State to another.
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Clause 19 - Consultation with Environment Secretary
This clause says that a protection zone cannot be declared by the ACA in respect of one
or more cables unless the ACA has consulted with the Environment Secretary on the
proposal for the protection zone. The ACA is required to have regard to any advice or
recommendations provided by the Environment Secretary in relation to the proposal.
The Environment Secretary is defined in clause 2 of proposed Schedule 3A to mean the
Secretary of the Department responsible for the administration of the Environment
Protection and Biodiversity Conservation Act 1999. This is currently the Secretary of the
Commonwealth Department of the Environment and Heritage.
This clause and clause 21 provide a formal mechanism to ensure that environmental
considerations are properly taken into account in protection zone decision-making.
Clause 20 - Matters the ACA must have regard to
This clause provides that the ACA must have regard to a number of matters when
deciding whether to declare a protection zone in relation to one or more cables, which
may be either existing or proposed cables. The matters to be considered include:
the recommendations or statement of opinions of the advisory committee that has
considered the proposal for the protection zone;
any public submissions received on the proposal for the protection zone;
the objective of facilitating the supply of carriage services to the public; and
any other matters that the ACA considers relevant.
The `other matters' that the ACA may consider relevant could include, for example, an
agreement in place between a cable owner and other sea or seabed users, eg. a
Memorandum of Understanding with local fishers, or an agreement to follow the terms of
an international code when cables cross oil and gas pipelines.
Where the protection zone is proposed for a cable not yet installed, the matters to be
considered also include:
the impact of installing a submarine cable on the environment as defined in clause 2
(including heritage values of places);
the relevant technical and economic aspects of the installation;
whether the installation involves co-location with existing submarine cables; and
the economic and social benefits that are likely to result from the installation of the
cable.
These are in addition to the requirement that a protection zone may only be declared in
respect of a cable of national significance (see clause 18).
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Clause 21 - Environment and heritage considerations
This clause specifies the matters the ACA must have regard to when considering the
impact of the installation of a proposed submarine cable on the environment under
paragraph 20(d). It expands upon clause 19, which requires the ACA to consult with the
Environment Secretary before declaring a protection zone in relation to one or more
submarines cables. The known environmental effects of laying and operating submarine
cables are small.
First, the ACA must have regard to whether the installation, maintenance or operation of
the submarine cable:
is inconsistent with Australia's obligations under a listed international agreement as
defined in clause 2; or
could have an adverse effect on a listed threatened species (as defined in clause 2) or
a threatened ecological community (as defined in clause 2), or impede the recovery of
a listed threatened species or threatened ecological community; or
could have an adverse effect on a listed marine species as defined in clause 2; or
could have an adverse effect on the environment (as defined in clause 2), including
the environment within a Commonwealth marine area (as defined in clause 2); or
could have an adverse effect on cetaceans (as defined in clause 2); or
could have an adverse effect on a listed migratory species as defined in clause 2; or
could have an adverse effect on the National Heritage values of a place included in
the National Heritage List as defined in clause 2; or
could have an adverse effect on the ecological character of a declared Ramsar
wetland as defined in clause 2; or
could have an adverse effect on the world heritage values of a declared World
Heritage property as defined in clause 2; or
could have an adverse effect on a place that Australia is required to protect by the
terms of a listed international agreement as defined in clause 2; or
could have an adverse effect on an area that, under law of the Commonwealth, a State
or a Territory, is reserved wholly or principally for marine conservation purposes
(however described); or
could have an adverse effect on an area that, under a law of the Commonwealth, a
State or a Territory, is protected from significant environmental disturbance.
Second, the ACA must have regard to whether the submarine cable is to be installed at or
near an area or thing that is of particular significance to Aboriginal persons, or Torres
Strait Islanders, in accordance with their traditions.
Third, the ACA must have regard to such other matters as the ACA considers relevant.
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Clause 22 - Deadline for final decision about protection zone
This clause says that if the ACA publishes a proposal for a protection zone in accordance
with clause 17, the ACA's decision whether or not to declare the protection zone must be
made as soon as practicable, with the maximum timeframe being 12 months after the day
on which the proposal is published.
It is envisaged that in the majority of cases the ACA's protection zone decisions will be
made within reasonable timeframes, however, given the number of prerequisite processes
the ACA must undertake prior to making a protection zone decision, referral to an
advisory committee, consideration of public submissions, consultation with the
Environment Secretary and a number of additional environmental considerations,(see
clauses 16 and 17 and 19 to 21) there may be some circumstances in which the decision
making process requires the maximum 12 month timeframe.
Division 3 - Varying or revoking a declaration of a protection zone
Subdivision A - Variation or revocation
Clause 23 - ACA may vary or revoke a declaration of a protection zone
This clause allows the ACA to vary or revoke the declaration of a protection zone.
A declaration may be varied in several ways for a number of reasons. The area covered
by a protection zone declaration may be varied because, for example, the ACA needs to
widen a zone to accommodate a new cable or cables, within the maximum width
specified by clause 9.
The activities prohibited or restricted within a zone, as set out in the declaration, may be
varied. For example, the ACA may adjust a restriction to allow for emergent
circumstances such as newly discovered fish stocks or new technology such as new
methods of fishing.
A revocation or variation of a declaration will be a legislative instrument for the purposes
of the Legislative Instruments Act 2003. An instrument varying or revoking a previously
made declaration for a protection zone will therefore be required to be registered on the
Federal Register of Legislative Instruments, tabled in both Houses of Parliament and will
be subject to Parliamentary disallowance.
The ACA will be required to develop a variation or revocation proposal in relation to the
protection zone under Subdivision B of Division 3 prior to the making of the variation or
revocation.
A variation or revocation of a declaration for a protection zone may arise as a result of a
decommissioning of a submarine cable by a carrier. Under clause 47 telecommunications
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carriers are under an obligation to notify the ACA in writing as soon as practicable when
a cable in a protection zone ceases to be used or is decommissioned.
A protection zone declaration would normally be revoked only when there are no longer
any operating cables in the zone, and it is not proposed to install new cables in it.
Clause 24 - Variation or revocation on ACA's initiative or in response to request
This clause says that a variation or revocation of a protection zone declaration may be
made by the ACA on its own initiative or at the request of a person.
This clause allows the ACA to take account of changed circumstances in a protection
zone, or changes in the interests or needs of users of the sea and seabed in a protection
zone.
The clause allows any person to request the ACA to vary or revoke a declaration, in order
to have their interests better protected. For example, petroleum explorers and producers
may seek to vary the terms of restrictions on their activities within protection zones; and
commercial or recreational fishers may seek to have a restricted activity permitted if they
believe they can demonstrate that the activity poses no risk to the cables in the zone.
Clause 25 - ACA to notify affected carrier of request to vary or revoke a declaration
This clause says that if a person requests the ACA to vary or revoke a declaration of a
protection zone, the ACA must, as soon as practicable and before the ACA develops a
proposal, notify the carriers responsible for cables in the protection zone. It is intended
that the notification would give details of the request to vary or revoke a protection zone
declaration.
The notification process under this clause ensures that carriers likely to be affected by
changes to a declaration of a protection zone are provided with information about
requested changes in a timely manner.
Clause 26 - Response to a request to vary or revoke a declaration
This clause says that, in response to a request to vary or revoke a declaration of a
protection zone by a person, the ACA must decide whether to develop a proposal for the
variation or revocation of the declaration of the protection zone. If a decision is made to
develop the proposal, the ACA must give the person a copy of its proposal. If the
developed proposal differs from the request made by the person, the ACA must notify the
person in writing of the reasons for the difference.
If the ACA decides not to develop a proposal to vary or revoke a declaration in response
to a request from a person, it must then notify the person, in writing, providing reasons
for its decision.
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Allowing the ACA the power not to develop a variation or revocation proposal will
ensure that frivolous, vexatious or inadequately supported requests can be dealt with in an
appropriate way.
Clause 27 - Decision not to vary or revoke a declaration after a request to do so
This clause says that if the ACA, after developing a proposal to revoke or vary a
declaration of a protection zone, decides not to vary or revoke the declaration in response
to a request form a person, the ACA must notify the person in writing providing reasons
for its decision.
The ACA must also inform the person requesting the variation or revocation of the
outcome, giving reasons for the decision, in the following circumstances:
where the ACA decides to vary the declaration but in a different way to the request of
the person;
where the ACA decides to vary the declaration rather than revoke it; and
where the ACA decides to revoke the declaration rather than vary it.
Clause 28 - When a variation or revocation takes effect
This clause says that a variation or revocation of a protection zone declaration comes into
effect at a time specified by the ACA. This is to allow the ACA discretion to determine
when a variation or revocation should come into effect, depending on the individual
circumstance of each case.
The effect of section 12 of the Legislative Instruments Act 2003 is that the time specified
by the ACA will be in the instrument of variation or revocation and this time must not be
before the instrument is registered on the Federal Register of Legislative Instruments if
the instrument would disadvantage any person apart from the Commonwealth or a
Commonwealth authority.
Clause 29 - Protection zone as varied must not exceed permitted area
This clause says that the area of a protection zone as specified in subclauses 9(3) and (5)
will continue to apply in relation to any protection zone varied by the ACA. The effect of
this clause is that the maximum width of a protection zone, even with variations, will be
one nautical mile on either side of the outermost cable and the maximum outer limit of a
protection zone, even with variations, will be to the limit of Australia's exclusive
economic zone or to the edge of the continental shelf, whichever is the further. This will
minimise the effect of protection zones on other uses of the seabed.
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Subdivision B - Prerequisites to variation or revocation of declaration
Clause 30 - ACA to develop a variation or revocation proposal
This clause says that before the ACA varies or revokes a declaration of a protection zone
it must develop a proposal to vary or revoke that declaration. The proposal will be in
relation to the variation or revocation requested by a person or initiated by the ACA.
To `develop a proposal' means that the ACA should provide enough detail of the
proposed variation or revocation so that the advisory committee and the public can
understand its intention and likely effects.
Subclause 30(2) provides that an ACA proposal to vary or revoke a protection zone
declaration is not a legislative instrument. This does not exempt an ACA proposal from
the operation of the Legislative Instruments Act 2003 because such a proposal would not
fall under the definition of a legislative instrument in section 5 of that Act in any event.
However, because such a proposal is an `instrument' that is not expressly excluded by the
Legislative Instruments Act or the Legislative Instruments Regulations 2004, it is the
policy of the Office of Parliamentary Counsel to include a provision along the lines of
subclause 30(2) to make the status of the instrument obvious on its face. Subclause 30(2)
is for information only.
Clause 31 - ACA to refer proposal to advisory committee
This clause says that before varying or revoking a declaration for a protection zone, the
ACA must refer its developed proposal to an advisory committee. The ACA will be able
to give an advisory committee written directions as to the way in which the committee is
to carry out its functions and procedures to be followed in relation to meetings (see
subsection 51(3) of the ACA Act).
An advisory committee may make recommendations to the ACA. If it does not make
recommendations, the committee must give the ACA a statement of the opinion of each
member of the committee about the proposal. Clause 34 requires the ACA to have
regard to the recommendations or statements of opinion of the advisory committee. The
advisory committee is established under section 51 of the ACA Act, and is likely to be an
ad hoc committee, constituted on a case-by-case basis to examine a particular proposal.
The membership of an advisory committee may vary from time to time. Clause 49 deals
with the composition of advisory committees.
This clause provides a formal mechanism that will allow representatives of stakeholders
whose interests are likely to be affected by a protection zone, to examine and consider the
proposal, and have their views taken into account by the ACA in its decision-making.
This flows from the desire to fairly balance the needs of various users of the sea and
seabed.
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Clause 32 - ACA to publish proposal
This clause says that the ACA is required to publish a proposal developed for the
variation or revocation of a declaration of a protection zone. The publication of the
proposal must be accompanied by an invitation for public submissions on the proposal.
Publication of the proposal must occur in the Commonwealth of Australia Gazette, the
ACA's Internet website and in a newspaper with general circulation in each State and
internal Territory, and in any affected external Territory.
This clause will allow members of the public to examine and consider a proposal, and
make submissions that the ACA must have regard to in its decision-making.
Clause 33 - Consultation with Environment Secretary
This clause says that the ACA must not vary or revoke a protection zone declaration in
respect of one or more cables unless the ACA has consulted with the Environment
Secretary on the proposal to vary or revoke the protection zone declaration. The ACA is
required to have regard to any advice or recommendations provided by the Environment
Secretary in relation to the proposal.
The Environment Secretary is defined in clause 2 of proposed Schedule 3A to mean the
Secretary of the Department responsible for the administration of the Environment
Protection and Biodiversity Conservation Act 1999. This is currently the Secretary of the
Commonwealth Department of the Environment and Heritage.
This clause provides a formal mechanism to ensure that environmental considerations are
properly taken into account in protection zone decision-making.
Clause 34 - Matters the ACA must have regard to
This clause says that the ACA must have regard to a number of matters when deciding
whether to vary or revoke a declaration of a protection zone. The matters to be
considered are:
the recommendations or statement of opinions of the advisory committee that
considered the proposal to vary or revoke a protection zone declaration;
any public submissions received on the ACA's developed proposal;
the legitimate commercial interests of the owner of a submarine cable in the
protection zone and the carrier responsible for the cable if the carrier is not the owner
of that cable;
any other matters the ACA considers relevant.
Clause 35 - Deadline for final decision about varying or revoking a protection zone
This clause says that if the ACA publishes a proposal for a variation or revocation of a
declaration of a protection zone, a decision whether or not to vary or revoke the
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protection zone must be made within 180 days after the day on which the proposal was
published.
It is envisaged that in the majority of cases the ACA's decisions about varying or
revoking a protection zone will be made within reasonable timeframes, however, given
the number of prerequisite processes the ACA must undertake prior to making these
decisions, referral to an advisory committee, consideration of public submissions,
consultation with the Environment Secretary and a number of additional considerations
(see clauses 31 to 34) there may be some circumstances in which the decision making
process requires the maximum 180 day timeframe.
This clause requires the ACA to make a variation or revocation decision within a
reasonable time.
Division 4 - Offences in relation to a protection zone
This Division creates offences including damaging a submarine cable, or engaging in
prohibited or restricted activities in a protection zone, and provides substantial criminal
penalties for these offences. This is intended to create an effective deterrent to
unnecessary disruption to the operation of submarine cables of national significance.
Clauses 10 and 11 outline activities which are prohibited or restricted within protection
zones, including various kinds of fishing. Note that an offence may be committed if a
vessel has fishing gear outside the hull, as well as if actual fishing operations are
underway.
The penalties provided for the offences reflect the seriousness of the effects of damage to
submarine cables of national significance.
These penalties are generally in line with those provided for prohibited activities under
New Zealand`s Submarine Cables and Pipelines Protection Act 1996. The penalties are
also broadly consistent with the heavy penalties under the Environment Protection (Sea
Dumping) Act 1981 for the deliberate disposal of waste into the sea.
Division 5 of this Part provides that a person who has suffered a loss because a submarine
cable has been damaged or because another person has engaged in prohibited or restricted
activities in a protection zone may recover civil damages.
Division 5 of Part 3 provides criminal penalties for offences relating to the installation of
submarine cables without a permit.
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Subdivision A - Damaging submarine cables
Clause 36 - Damaging a submarine cable
This clause says that it is an offence for a person to engage in conduct that results in
damage to a submarine cable (or part of a cable) and the cable (or the part) is in a
protection zone.
The term `engage in conduct' is defined in clause 2 to mean to do an act or omit to do an
act.
As a result of section 5.6 of the Criminal Code, intention will be the fault element for the
physical element of conduct in paragraph 36(1)(a) and recklessness will be the fault
element for the physical element of the result of the conduct in paragraph 36(1)(b). The
prosecution will therefore first be required to prove that a person intentionally engaged in
the conduct. Subsection 5.2(1) of the Criminal Code provides that a person has intention
with respect to conduct if he or she means to engage in that conduct. In proving
recklessness, the prosecution will need to prove that the person was aware of a substantial
risk that the conduct would result in damage to a submarine cable and, having regard to
the circumstances that were known to the person, it was unjustifiable to take that risk (see
subsection 5.4(2) of the Criminal Code).
The maximum penalty for this offence is, in the case of an individual, 600 penalty units
or 10 years' imprisonment, or both, and, in the case of a body corporate, 3000 penalty
units (see s. 4B(1) and (3) of the Crimes Act). A penalty unit is currently worth $110
(see s. 4AA of the Crimes Act). The maximum monetary penalty currently applying to
this offence is therefore $66,000 for an individual and $330,000 for a body corporate.
Strict liability applies in relation to paragraph 36(1)(c) ie. that the cable, or part of the
cable, that is damaged is in a protection zone. As a result of section 6.1 of the Criminal
Code, no fault elements will apply in relation to paragraph 36(1)(c). The prosecution will
therefore not be required to prove intention, knowledge, recklessness or negligence in
relation to paragraph 36(1)(c). The prosecution need only prove that the relevant
physical element of the offence did occur, namely that the cable or part of the cable was
in a protection zone.
The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal
Code will be available in relation to paragraph 36(1)(c). That is, a person will not be
criminally responsible if, at or before the time of the conduct resulting in damage to the
submarine cable, the person considered whether or not the conduct would occur in a
protection zone but was under a mistaken but honest and reasonable belief about the
location of the protection zone.
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Clause 37 - Negligently damaging a submarine cable
This clause says that it is an offence for a person to engage in conduct that results in
damage to a submarine cable or part of a submarine cable and the person is negligent to
the fact that the conduct results in the damage and the cable or part of the cable is in a
protection zone.
The term `engage in conduct' is defined in clause 2 to mean to do an act or omit to do an
act.
Section 5.5 of the Criminal Code provides that a person is negligent with respect to a
physical element of an offence (in this case the result of conduct) if his or her conduct
involves:
(a) such a great falling short of the standard of care that a reasonable person would
exercise in the circumstances; and
(b) such a high risk that the physical element exists or will exist;
that the conduct merits criminal punishment for the offence.
The maximum penalty for this offence is, in the case of an individual, 180 penalty units
or 3 years imprisonment, or both, and, in the case of a body corporate, 900 penalty units
(see s. 4B(1) and (3) of the Crimes Act). A penalty unit is currently worth $110 (see
section 4AA of the Crimes Act). The maximum monetary penalty currently applying to
this offence is therefore $19,800 for an individual and $99,000 for a body corporate.
Strict liability applies in relation to paragraph 37(1)(d) ie. that the cable, or part of the
cable, that is damaged is in a protection zone. As a result of section 6.1 of the Criminal
Code, no fault elements will apply in relation to paragraph 37(1)(d). The prosecution will
therefore not be required to prove intention, knowledge, recklessness or negligence in
relation to paragraph 37(1)(d). The prosecution need only prove that the relevant
physical element of the offence did occur, namely that the cable or part of the cable was
in a protection zone.
The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal
Code will also be available in relation to paragraph 37(1)(d). That is, a person will not be
criminally responsible if, at or before the time of the conduct resulting in damage to the
submarine cable, the person considered whether or not the conduct would occur in a
protection zone but was under a mistaken but honest and reasonable belief about the
location of the protection zone.
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Clause 38 - Defence to offences of damaging a submarine cable
This clause says that an offence under subclauses 36(1) and 37(1) will not occur if:
the conduct resulting in the damage was necessary to save a life or ship (as defined in
clause 2); or
the conduct was necessary to prevent pollution; or
the defendant took all reasonable steps to avoid the damage to the submarine cable; or
the damage was caused by an owner or operator of a cable; or
the damage was caused by a person acting on behalf of an owner or operator of the
cable.
The offences under subclauses 36(1) and 37(1) require proof of recklessness as to the
result of the conduct.
It could be argued that a defence that a person took all reasonable steps to avoid causing
the damage is redundant, because, if there is evidence to that effect, the prosecution
would find it difficult to prove recklessness.
The `reasonable steps' defence has been included out of an abundance of caution to make
it clear that a defendant should not be guilty of an offence if the defendant took all
reasonable steps to avoid causing damage to a submarine cable.
This clause permits owners of cables or their agents to do things in relation to their own
cables in protection zones that would otherwise be prohibited or restricted. For example,
they may be permitted to anchor a cable-laying ship in a protection zone when laying a
cable.
The evidential burden expressed in subsection 13.3(3) of the Criminal Code applies for
the purpose of these defences. This means that a defendant must adduce or point to
evidence that suggests a reasonable possibility that a matter specified in one or more of
these defences exists or does not exist.
Clause 39 - Master or owner of ship used in offence of damaging a submarine cable
This clause says that an owner or master of a ship (as defined in clause 2) will commit an
offence where:
the owner or master permits another person to use the ship; and
that other person commits an offence under clause 36 (which provides an offence in
relation to damaging a submarine cable); and
the ship is used in the commission of the offence; and
the owner or master is reckless as to that fact.
The owner and master of a ship may each be liable in respect of the same offence.
The element of recklessness in the offence means that liability is imposed where the
master or owner of the ship acted recklessly in permitting another person to use the ship
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and engage in conduct that results in damage to a submarine cable or part of a submarine
cable in a protection zone.
As a result of section 5.4 of the Criminal Code, recklessness will arise where the master
or owner of the ship was aware of a substantial risk that the damage to the cable would
occur and having regard to the circumstances known to the master or owner, it was
unjustifiable to take the risk.
The maximum penalty for this offence is, in the case of an individual, 600 penalty units
or 10 years' imprisonment, or both, and, in the case of a body corporate, 3000 penalty
units (see ss. 4B(1) and (3) of the Crimes Act). A penalty unit is currently worth $110
(see s. 4AA of the Crimes Act). The maximum monetary penalty currently applying to
this offence is therefore $66,000 for an individual and $330,000 for a body corporate.
Strict liability applies in relation to paragraph 39(1)(c) ie. that the person whom the
owner or master of a ship has permitted to use the ship has committed an offence against
clause 36 (which deals with damaging a submarine cable). As a result of section 6.1 of
the Criminal Code, no fault elements will apply in relation to paragraph 39(1)(c). The
prosecution need only prove that the relevant physical element of the offence did occur,
namely that the person concerned committed an offence against clause 36.
Subdivision B - Engaging in prohibited or restricted activities
Clause 40 - Engaging in prohibited or restricted activities
This clause says that, in a protection zone, it is an offence for a person to engage in
conduct that is prohibited (as set out in clause 10 and specified in the declaration) or
contravenes a restriction (as set out in clause 11 and specified in the declaration). The
term `engage in conduct' is defined in clause 2 to mean to do an act or omit to do an act.
The conduct of the person must occur in a protection zone for the offence to be
committed.
This clause permits owners of cables or their agents to do things in relation to repairing or
maintaining their own cables or installing a cable in accordance with a permit in a
protection zone that would otherwise be prohibited or restricted. For example, they may
be permitted to anchor a cable-laying ship in a protection zone and retrieve their damaged
cable with a grapnel.
As a result of section 5.6 of the Criminal Code, intention will be the fault element for the
physical element of conduct in paragraph 40(a). The prosecution will therefore be
required to prove that a person intentionally engaged in the conduct. Subsection 5.2(1) of
the Criminal Code provides that a person has intention with respect to conduct if he or
she means to engage in that conduct. Subsection 5.2(3) of the Criminal Code provides
that a person has intention with respect to a result if he or she means to bring it about or is
aware that it will occur in the ordinary course of events.
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Recklessness will be the fault element for paragraphs 40(b) and (c). In proving
recklessness, the prosecution will need to prove that the person was aware of a substantial
risk that the conduct would occur in a protection zone, that the conduct was prohibited or
restricted in the zone and, having regard to the circumstances that were known to the
person, it was unjustifiable to take that risk (see subsection 5.4(2) of the Criminal Code).
It will also be necessary in each prosecution under clause 40 for the prosecution to
establish that paragraphs 40(d) and (e) are satisfied.
The maximum penalty for this offence is, in the case of an individual, 300 penalty units
or 5 years' imprisonment, or both, and, in the case of a body corporate, 1500 penalty
units (see s. 4B(1) and (3) of the Crimes Act). A penalty unit is currently worth $110
(see s. 4AA of the Crimes Act). The maximum monetary penalty currently applying to
this offence is therefore $33,000 for an individual and $165,000 for a body corporate.
Note that having fishing gear such as lines or nets over the side of a boat within a
protection zone comes within the definitions of prohibited or restricted activity under
clauses 10 and 11, and may constitute an offence, even if the boat is not actually engaged
in a fishing operation at the time.
Clause 41 - Aggravated offence of engaging in prohibited or restricted activities
This clause says that it is an offence for a person to engage in conduct that is prohibited
or contravenes a restriction in a protection zone and the conduct has been engaged in for
commercial gain. The term `engage in conduct' is defined in clause 2 to mean to do an
act or omit to do an act. The conduct of the person must occur in a protection zone for
the offence to be committed and the person must engage in the conduct with the intention
of making a commercial gain.
This clause introduces a distinction between an activity conducted for commercial gain
and other activities. The meaning of `commercial gain' is intended to be interpreted
broadly in the sense of producing an income or profit, and is to be distinguished from
recreational or non-commercial activities. An activity conducted for commercial gain
includes any activity that is part of the normal routine of a commercial enterprise, or of a
ship or vessel being used by a commercial enterprise, eg. commercial fishing, or breaking
a competitor's submarine cable.
This clause permits owners of cables or their agents to do things in relation to repairing or
maintaining their own cables or installing a cable in accordance with a permit in a
protection zone that would otherwise be prohibited or restricted. For example, they may
be permitted to anchor a cable-laying ship in a protection zone.
As a result of section 5.6 of the Criminal Code, intention will be the fault element for the
physical element of conduct in paragraph 41(a) and (d). The prosecution will therefore
be required to prove that a person intentionally engaged in the conduct. Subsection
5.2(1) of the Criminal Code provides that a person has intention with respect to conduct
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if he or she means to engage in that conduct. Subsection 5.2(3) of the Criminal Code
provides that a person has intention with respect to a result if he or she means to bring it
about or is aware that it will occur in the ordinary course of events. A person will
therefore commit an aggravated offence if they have engaged in the prohibited or
restricted conduct and they meant to engage in the conduct for commercial gain.
Recklessness will be the fault element for paragraphs 41(b) and (c). In proving
recklessness, the prosecution will need to prove that the person was aware of a substantial
risk that the conduct would occur in a protection zone, that the conduct was prohibited or
restricted in the zone and, having regard to the circumstances that were known to the
person, it was unjustifiable to take that risk (see subsection 5.4(2) of the Criminal Code).
It will also be necessary in each prosecution under clause 41 for the prosecution to
establish that paragraphs 41(e) and (f) are satisfied.
The maximum penalty for this offence is, in the case of an individual, 420 penalty units
or 7 years' imprisonment, or both, and, in the case of a body corporate, 2100 penalty
units (see s. 4B(1) and (3) of the Crimes Act). A penalty unit is currently worth $110
(see s. 4AA of the Crimes Act). The maximum monetary penalty currently applying to
this offence is therefore $46,200 for an individual and $231,000 for a body corporate.
Clause 42 - Defence to offences of engaging in prohibited or restricted activities
This clause says that clauses 40 and 41 (which make it an offence to engage in prohibited
or restricted activities) do not apply if:
the conduct was necessary to save a life or ship (as defined in clause 2); or
the conduct was necessary to prevent pollution; or
the defendant took all reasonable steps to avoid engaging in the conduct.
The evidential burden expressed in subsection 13.3(3) of the Criminal Code applies for
the purpose of these defences. This means that a defendant must adduce or point to
evidence that suggests a reasonable possibility that a matter specified in one or more of
these defences exists or does not exist.
Clause 43 - Alternative verdict if aggravated offence not proven
This clause says that where there is a trial for an aggravated offence of engaging in
prohibited or restricted activities, the defendant may be found not guilty of an offence
against clause 41 if the arbiter of fact is not satisfied that the defendant engaged in the
activity with the intention of commercial gain and is otherwise satisfied that an offence
against clause 40 has been committed. In the circumstances, a finding of not guilty in
relation to clause 41 and a finding of guilty of an offence against clause 40 may arise so
long as principles of procedural fairness have been adhered to.
An offence against clause 41 may not be established if the prosecution cannot establish
that the person has engaged in the prohibited or restricted activity with the intention of
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deriving a commercial gain out of the activity. Where intention cannot be proved the
aggravated offence will not arise although the accused may be found guilty of an offence
under clause 40.
Clause 44 - Master or owner of ship used in offence of engaging in prohibited or
restricted activities
This clause says that an owner or master of a ship (as defined in clause 2) commits an
offence if:
the owner or master permits another person to use the ship; and
that other person commits an offence under clause 40 (which makes it an offence to
engage in prohibited or restricted activities in a protection zone) or clause 41 (which
makes it an aggravated offence to engage in prohibited or restricted activities in a
protection zone for commercial gain); and
the ship is used in the commission of the offence; and
the owner or master is reckless as to that fact.
The owner and master of a ship may each be liable in respect of the same offence.
The element of recklessness in the offence means that liability is imposed where the
master or owner of the ship acted recklessly in permitting another person to use the ship
and engage in conduct that is prohibited or restricted in a protection zone.
As a result of section 5.4 of the Criminal Code, recklessness will arise where the master
or owner of the ship was aware of a substantial risk that the other person would engage in
a prohibited or restricted activity and having regard to the circumstances known to the
master or owner, it was unjustifiable to take the risk.
Where the person permitted to use the ship commits an offence against clause 40, the
maximum penalty for the offence under clause 44 is, in the case of a master or owner
who is an individual, 300 penalty units or 5 years' imprisonment, or both, and, in the case
of master or owner that is a body corporate, 1500 penalty units (see ss. 4B(1) and (3) of
the Crimes Act). A penalty unit is currently worth $110 (see s. 4AA of the Crimes Act).
The maximum monetary penalty currently applying to this offence in these circumstances
is therefore $33,000 for an individual and $165,000 for a body corporate.
Where the person permitted to use the ship commits an offence against clause 41, the
maximum penalty for the offence under clause 44 is, in the case of a master or owner
who is an individual, 300 penalty units or 5 years' imprisonment, or both, and, in the case
of a master or owner that is a body corporate, 2100 penalty units (see ss. 4B(1) and (3) of
the Crimes Act). A penalty unit is currently worth $110 (see s. 4AA of the Crimes Act).
The maximum monetary penalty currently applying to this offence is therefore $46,200
for an individual and $231,000 for a body corporate.
Strict liability applies in relation to paragraph 44(1)(c) ie. that the person whom the
owner or master permitted to use the ship committed an offence against clause 40 or 41.
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As a result of section 6.1 of the Criminal Code, no fault elements will apply in relation to
paragraph 44(1)(b). The prosecution need only prove that the relevant physical element
of the offence did occur, namely that person concerned committed an offence against
clause 40 or 41.
Division 5 - Miscellaneous
Clause 45 - Person may claim damages
This clause gives a statutory right to damages to a person who suffers direct or indirect
loss or damage because a submarine cable in a protection zone is damaged by the conduct
of another person or because that other person has engaged in prohibited or restricted
activities in a protection zone. A claim for loss or damage may be against the other
person or anyone involved in the damage or prohibited or restricted activities in a
protection zone.
For the purposes of this clause a person will be taken to be involved in a contravention if
the person has:
aided, abetted, counselled or procured the contravention; or
induced, whether by threats or promises or otherwise, the contravention; or
been in any way, directly or indirectly, knowingly concerned in, or party to, the
contravention; or
conspired with others to effect the contravention.
It would usually be the case that owners of submarine cables would suffer direct loss or
damage. However, this clause also permits a person who suffers an indirect loss to
recover damages. This may include, for example, any customer of the cable owner who
can demonstrate loss because the cable has been damaged and telecommunications have
been disrupted.
This provision is considered a significant deterrent to cable damage because it does not
limit the right to civil damages, and is in addition to the criminal penalties provided under
Division 4 of Part 2 of proposed Schedule 3A to the Telecommunications Act. Note that
damages can be claimed in respect of conduct regardless of the outcome of any criminal
prosecution for the same conduct.
An action for damages under clause 45 may be commenced in the Federal Court within 6
years after the day on which the person concerned suffered direct or indirect loss or
damage.
Clause 46 - Indemnity for loss of anchor etc.
This clause is based on s. 9 of the Submarine Cables and Pipelines Protection Act 1963.
It says that the owner of a ship (as defined in clause 2) will be entitled to be indemnified
for the loss of an anchor, net or fishing gear belonging to the ship that is sacrificed in
order to avoid damage to a submarine cable in a protection zone where, at the time of the
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sacrifice, no person on the ship was engaged in a prohibited or restricted activity in the
protection zone. The carrier responsible for the submarine cable must indemnify the loss.
The Federal Court has jurisdiction to hear any civil proceeding instituted under this
clause.
Clause 47 - ACA to notify relevant authorities of declaration, variation etc of
protection zone
This clause says that if a protection zone is declared, varied or revoked the ACA must
notify a number of listed authorities as soon as practicable after the decision to declare,
vary or revoke has been made. The authorities listed are the Australian Fisheries
Management Authority, the Australian Hydrographic Service; the Australian Maritime
Safety Authority and the authority administering the business carried on at the relevant
port or ports of a State or the Northern Territory.
Any declaration, variation or revocation of a protection zone is a legislative instrument
for the purposes of the Legislative Instruments Act 2003, which must be tabled in both
Houses of Parliament and is subject to Parliamentary disallowance. Legislative
instruments must be registered on the Federal Register of Legislative Instruments.
It is not considered necessary to require the ACA to publish protection zone decisions
further. However, the ACA may also notify other bodies of a protection zone
declaration, variation or revocation, for any reason it sees fit. This may include any
member of an advisory committee or any other interested party.
Clause 48 - Notice if carrier decommissions a submarine cable
This clause says that where a declaration of a protection zone in relation to a submarine
cable has been made and the cable is decommissioned or no longer used, the carrier
responsible for the cable must notify the ACA in writing of the decommissioning or
cessation of use of the cable as soon as practicable. The obligation to notify the ACA
does not arise where the submarine cable is temporarily out of commission.
Clause 49 - Composition of advisory committee
This clause says that an advisory committee established by the ACA for the purpose of
making recommendations on a proposal for a protection zone declaration, variation or
revocation (see clauses 16 and 31) must not consist of more than 12 members. The ACA
will have a wide discretion in relation to the persons who should be members of an
advisory committee. Without limiting this discretion, an advisory committee established
for the purposes of proposed Schedule 3A might include representatives of the
Commonwealth, interested States or the Northern Territory, interested Commonwealth,
State or Territory authorities or instrumentalities, interested industries or interest groups.
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In this clause, `interested' means 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.
Members of the advisory committee may, for example, include representatives of: the
telecommunications industry; the fishing industry; a body or association representing
persons engaged in recreational fishing; the petroleum or gas industry; the mining
industry; the shipping industry; an environmental body or association, or the Great
Barrier Reef Marine Park Authority if a proposal included an area within the Great
Barrier Reef Marine Park. The membership of an advisory committee is likely to vary
between one application and another, and over time.
Part 3 - Permits to install submarine cables
Division 1 - Simplified outline
Clause 50 - Simplified outline
This clause gives a simplified outline of Part 3 of proposed Schedule 3A. This Part
governs the issue of permits to install submarine cables in a protection zone or in
Australian waters as defined in clause 2 (other than Australian waters that are in a
protection zone or that are coastal waters). It also makes it an offence to install a
submarine cable without a permit or breach the conditions of a permit where granted. A
carrier that installs a submarine cable in a protection zone in accordance with a permit
granted under this Part will be exempt from certain State and Territory laws.
The National Bandwidth Inquiry identified a lack of explicit authorisation to install
submarine cables as one of the problems of the current regulatory framework, along with
insufficient protection of cables once they are in place. The Inquiry recommended that
more explicit authorisation to install submarine cables be included in legislative
provisions.
Proposed subclause 6(4A) of Schedule 3 to the Telecommunications Act (see item 4 of
Schedule 1 to the Bill) makes it clear that a submarine telecommunications cable as
defined in clause 2 cannot be a low-impact facility, and is therefore not covered by
Schedule 3.
This Part provides for the ACA to issue permits to carriers to install submarine cables,
both in declared protection zones (protection zone installation permits) and in Australian
waters outside a protection zone and outside coastal waters (non-protection zone
installation permits). It deals with the grant and refusal of permits, the payment and
refund of charges, matters the ACA must have regard to before it makes a decision about
a permit, conditions applying to the installation of submarine cables, offences in relation
to the installation of submarine cables, and the requirement for carriers to comply with
the terms of a permit in installing a submarine cable.
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Division 2 - Protection zone installation permits
Clause 51 - Application for a permit to install a submarine cable in a protection
zone
This clause allows a carrier to apply to the ACA for a permit to install one or more
submarine cables in a protection zone. The permit referred to in this Division is known
as a protection zone installation permit.
The penalties for damaging submarine cables in protection zones, and the streamlined
administrative arrangements for installing cables in protection zones, will encourage
cable owners to locate new cables in protection zones where possible, and minimise their
effect on other users of the sea and seabed.
Unless otherwise declared by the ACA, a protection zone will run from the mean low-
water mark on the coast for a distance of 200 nautical miles or to the edge of Australia's
continental shelf, whichever is the further. The low-water mark is the height of the
lowest ebb tide. Mean low water is a recognised tidal datum. The issued permit will
allow installation of one or more submarine cables in a declared protection zone.
Clause 52 - Form of application etc.
This clause requires a carrier's application for a protection zone installation permit to be
in writing and in the form approved by the ACA.
The kind of information the ACA is likely to require includes the nominal location of the
proposed cable, and relevant technical and economic aspects of the installation.
Clause 53 - Application to be accompanied by charge
This clause requires an application for a protection zone installation permit to be
accompanied by the charge (if any) imposed on the application by a determination under
section 53 of the ACA Act.
Section 53 of the ACA Act allows the ACA to make determinations by written
instrument fixing charges for any matter in relation to which expenses are incurred by the
ACA under the Telecommunications Act and specifying the persons by whom, and the
times when, the charges are payable.
It is intended that the cost to the ACA of administering permits under the submarine
cable regulation and protection regime to be established under this Bill will be recovered
from the telecommunications industry.
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Clause 54 - Withdrawal of application
This clause allows an application for a protection zone installation permit to be
withdrawn and a fresh application submitted. This will give carriers applying for a
permit a certain amount of flexibility in relation to the application process.
Clause 55 - Further information
This clause allows the ACA to ask an applicant for further information in relation to an
application for a protection zone installation permit and to refuse to consider the
application until the requested information is provided.
Clause 56 - Grant or refusal of permit
This clause allows the ACA, after considering the application for a protection zone
installation permit, to either grant or refuse to grant the permit. The grant of a permit will
authorise the installation of the cable or cables specified in the application.
If an application is granted, the ACA may make the permit subject to specified conditions
in relation to the installation of the cable or cables in a protection zone. Conditions may
include, for example, a requirement that the cable be buried or otherwise specially
protected against damage for a specified part of its length, or may expand on conditions
contained in the Telecommunications Code of Practice.
The purpose of this clause is to give the ACA some flexibility in administering the
submarine cable protection regime. The nature of the conditions that the ACA may
impose on a protection zone declaration is not limited; conditions may for example relate
to matters raised when the Environment Secretary is consulted under clause 70.
Such special conditions should not unduly impact on the operational efficiency of the
cable or the ability to maintain the cable, and should have the effect of improving the
standards of submarine cable installation over time (within technological and site-specific
limitations).
These conditions may vary from zone to zone and within zones. Conditions may be
varied by the ACA at any time, and would remain in force until modified or extinguished
by the ACA.
If an application for a protection zone installation permit is refused, the ACA will be
required to notify the applicant in writing of the decision and the reasons for the refusal.
An ACA decision to refuse to grant a protection zone installation permit, or to grant such
a permit subject to conditions, will be able to be reviewed by the AAT following a
process of internal reconsideration by the ACA (see Part 29 of the Telecommunications
Act and item 7 of Schedule 1 to the Bill).
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Clause 57 - Automatic refusal
This clause provides that an application by a carrier for a protection zone installation
permit will be deemed to have been refused if the ACA has not granted or refused the
permit by the deadline day. The deadline day will generally be the 20th business day after
the day the application was made.
If the ACA requests further information from the carrier under clause 55 and the request
has been complied with, the deadline day will be the tenth business day after the ACA's
request has been complied with.
If the ACA has requested further information from the carrier and the request has not
been complied with, the deadline day will be the tenth business day after the end of the
period specified by the ACA in its request.
Clause 57 is intended to impose a discipline on the ACA to deal quickly with an
application for a protection zone installation permit. If there is a deemed refusal under
clause 57, the ACA will be required to refund any applicable application charge under
clause 58. This will provide an incentive for the ACA to be efficient in assessing an
application.
Clause 58 - Refund of application charge if automatic refusal
This clause requires the ACA, on behalf of the Commonwealth, to refund any charge that
a carrier has paid under clause 53 if an application for a protection zone installation
permit is automatically refused under clause 57. The Consolidated Revenue Fund will be
appropriated for any refunds made. This will provide an incentive for the ACA to be
efficient in assessing an application.
Clause 59 - Duration of permit
This clause allows a protection zone installation permit to remain in force for 18 months.
The 18-month period of the permit commences the day it is granted. An applicant may
seek an extension of a permit under clause 61. There is no limit on the number of
extensions that may be granted.
Clause 60 - Surrender of permit
This clause allows a carrier to surrender a protection zone installation permit at any time
by notifying the ACA in writing.
A carrier may surrender the permit, for example, where it has been granted an installation
permit and no longer wishes to install the cable, or wishes to install the cable in a
different location.
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Clause 61 - Extension of permit
This clause allows a carrier holding a protection zone installation permit to apply to the
ACA to extend the duration of the permit for a further 180 days.
A carrier seeking such an extension will be required to give the ACA written reasons for
seeking the extension. A carrier must seek an extension before the protection zone
installation permit expires.
If the ACA refuses an application to extend a permit, it must give the carrier its reasons
for refusal in writing. An ACA decision to refuse to extend the duration of a protection
zone installation permit will be able to be reviewed by the AAT following a process of
internal reconsideration by the ACA (see Part 29 of the Telecommunications Act and
item 7 of Schedule 1 to the Bill).
Under section 53 of the ACA Act, the ACA will be able to charge a fee in relation to an
extension to a protection zone installation permit.
Note that there is no limit to the number of extensions that can be granted, but a fee will
be payable in each case.
Clause 62 - Suspension or cancellation of permit
This clause allows the ACA to suspend or cancel a protection zone installation permit by
written notice to the holder of the permit. To suspend or cancel a permit, the ACA must
be satisfied that the carrier holding the permit has breached a condition of the permit or
has not complied with any conditions in the Telecommunications Code of Practice
applying to the installation of submarine cables.
This clause gives the ACA authority to enforce compliance with the terms of its
installation permits and with the Telecommunications Code of Practice.
Clause 15 of Schedule 3 to the Telecommunications Act allows the Minister to make a
Code of Practice setting out conditions that carriers must comply with when they are
installing and maintaining facilities. Item 5 of Schedule 1 to the Bill allows the Minister
to include conditions in a Code of Practice that carriers must comply with when they are
installing submarine cables in accordance with a permit under Part 3 of proposed
Schedule 3A.
The ACA must give the holder of a permit 30 days' written notice of its intention to
suspend or cancel the permit before it does so. The grounds upon which the suspension
or cancellation is based must be given in the notice.
The ACA must give the permit holder the opportunity to submit to the ACA any matters
for consideration, and must take into account any matters submitted and any remedial
action taken, before deciding whether to suspend or cancel the permit.
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If, following the ACA's consultation with the permit holder, the ACA decides to suspend
or cancel the permit, the ACA's decision will be able to be reviewed by the AAT
following a process of internal reconsideration by the ACA (see Part 29 of the
Telecommunications Act and item 7 of Schedule 1 to the Bill).
Clause 63 - Exemption from State and Territory laws
This clause provides that certain State and Territory laws do not apply when a submarine
cable is installed in accordance with a protection zone installation permit.
When installing a submarine cable in accordance with a protection zone installation
permit, carriers will be exempt from State and Territory laws dealing with:
the assessment of the environmental effects of engaging in the activity;
the protection of places or items of significance to Australia's national or cultural
heritage (except insofar as the law provides for the protection of places or items of
significance to the cultural heritage of Aboriginal persons or Torres Strait Islanders);
the powers and functions of a local government body;
the supply of fuel and power, including the supply and distribution of extra-low
voltage power systems (except insofar as the law deals with the supply of electricity
at a voltage that exceeds that used for ordinary commercial or domestic
requirements); or
a matter specified in regulations made under the Telecommunications Act.
Carriers' exemption from certain State and Territory laws will not prevent other State and
Territory laws from operating, so far as they are capable of operating concurrently with
proposed Schedule 3A, nor will it exempt carriers from State and Territory taxes.
This clause allows a carrier that wishes to install a submarine cable in a protection zone
to deal with a single government regulatory authority, reducing the complexity of the
legislative framework identified by the National Bandwidth Inquiry.
Note that exemption for State and Territory laws does not extend to the installation of a
submarine cable outside a protection zone. In these cases, applicable State and Territory
laws will continue to apply.
Division 3 - Non-protection zone installation permits
This Division provides explicit authority for carriers to install submarine cables in
Australian waters outside a protection zone and outside coastal waters, which are within
the jurisdiction of States and Territories. Within coastal waters (ie. up to 3 nautical miles
from shore), applicable State and Territory laws will continue to apply.
Proposed subclause 6(4A) of Schedule 3 to the Telecommunications Act (see item 4 of
Schedule 1 to the Bill) makes it clear that a submarine telecommunications cable cannot
be a low-impact facility, and is therefore not covered by Schedule 3.
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Clause 64 - Application for a permit to install a submarine cable in Australian
waters (otherwise than in a protection zone or coastal waters)
This clause allows a carrier to apply to the ACA for a permit to install one or more
submarine cables in Australian waters (as defined in clause 2) outside a protection zone
and outside coastal waters (as defined in clause 2). The permit referred to in this
Division is known as a non-protection zone installation permit.
Within coastal waters up to 3 nautical miles from shore that are outside a protection zone,
carriers will still be required to comply with State and Territory laws applicable to the
installation of submarine cables.
Clause 65 - Form of application etc.
This clause requires a carrier's application for a non-protection zone installation permit to
be in writing and in the form approved by the ACA.
The kind of information the ACA is likely to require includes the nominal location of the
proposed cable, and relevant technical and economic aspects of the installation. In
addition, carriers may be required to supply information to assist the ACA to satisfy its
obligations under clauses 71 and 72.
Clause 66 - Application to be accompanied by charge
This clause provides an application for a non-protection zone installation permit to be
accompanied by the charge (if any) determined by the ACA under section 53 of the ACA
Act.
Section 53 of the ACA Act allows the ACA to make determinations by written
instrument fixing charges for any matter in relation to which expenses are incurred by the
ACA under the Telecommunications Act and specifying the persons by whom, and the
times when, the charges are payable.
It is intended that the cost to the ACA of administering permits under the submarine
cable regulation and protection regime to be established under this Bill will be recovered
from the telecommunications industry.
Clause 67 - Withdrawal of application
This clause allows an application for a non-protection zone installation permit to be
withdrawn and a fresh application submitted. This will give carriers applying for a
permit a certain amount of flexibility in relation to the application process.
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Clause 68 - Further information
This clause allows the ACA to ask an applicant for a non-protection zone installation
permit for further information in relation to the application and to refuse to consider the
application until the requested information is provided.
Clause 69 - Grant or refusal of permit
This clause allows the ACA, after considering an application for a non-protection zone
installation permit, consulting with the Environment Secretary and other relevant persons
about the application under clause 70, and considering the matters specified in clause 71,
either to grant or refuse to grant the permit. The grant of a permit will authorise the
installation of the cable or cables specified in the application.
If an application is granted, the ACA may make the permit subject to specified conditions
that relate to the installation of the cable or cables. Conditions may include, for example,
a requirement that the cable be buried or otherwise specially protected against damage for
part of its length, or may expand on conditions contained in the Telecommunications
Code of Practice.
Such special conditions should not unduly impact on the operational efficiency of the
cable or the ability to maintain the cable, and should have the effect of improving the
standards of submarine cable installation over time (within technological and site-specific
limitations).
These conditions may vary from zone to zone and within zones. Conditions could be
varied by the ACA at any time, and would remain in force until modified or revoked by
the ACA.
The ACA, after considering an application for a non-protection zone installation permit,
may refuse to grant the permit. If an application is refused, the ACA must notify the
applicant in writing of the refusal and the reasons for the refusal.
An ACA decision to refuse to grant a non-protection zone installation permit, or to grant
such a permit subject to conditions, will be able to be reviewed by the AAT following a
process of internal reconsideration by the ACA (see Part 29 of the Telecommunications
Act and item 7 of Schedule 1 to the Bill).
Clause 70 - Consultation before the ACA makes a decision about a permit
This clause provides that the ACA must not grant a non-protection zone installation
permit unless it has undertaken consultation in relation to the application for the permit
with the Environment Secretary and with any other person the ACA considers relevant.
The term `Environment Secretary' is defined in clause 2 to mean the Secretary of the
Department administrating the Environment Protection and Biodiversity Conservation
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Act 1999, currently the Secretary of the Commonwealth Department of the Environment
and Heritage.
The outcomes of consultation with the Environment Secretary or other persons may
affect the conditions subject to which the ACA grants a protection zone installation
permit.
Clause 71 - Matters the ACA must have regard to before it makes a decision about
a permit
This clause provides that, in deciding whether to grant a non-protection zone installation
permit, the ACA must have regard to:
the objective of facilitating the supply of efficient, modern and cost-effective carriage
services to the public;
the impact of the installation on the environment (as defined in clause 2), including
the heritage values of places);
any relevant technical and economic aspects of the installation;
whether the installation involves co-location of the submarine cable with another
submarine cable or cables; and
any other matters the ACA considers relevant.
The requirement to consider the possibility of co-locating a new cable with existing
cables is intended to encourage the installation of future cables in existing protection
zones. This will concentrate cables in limited areas and minimise the impact of the
cables on the environment, sea and seabed. An application to install a cable outside a
protection zone and outside coastal waters may not be approved if co-location of the
cable with another cable in an existing protection zone is feasible.
Clause 72 - Environmental and heritage considerations
This clause specifies the matters the ACA must have regard to when considering the
impact of the installation of a proposed submarine cable on the environment under
paragraph 71(b). It expands upon clause 70, which requires the ACA to consult with the
Environment Secretary before deciding whether to grant a non-protection zone
installation permit in relation to one or more submarine cables. The known
environmental effects of laying and operating submarine cables are small.
First, the ACA must have regard to whether the installation, maintenance or operation of
the submarine cable:
is inconsistent with Australia's obligations under a listed international agreement as
defined in clause 2; or
could have an adverse effect on a listed threatened species (as defined in clause 2) or
a threatened ecological community (as defined in clause 2), or impede the recovery of
a listed threatened species or threatened ecological community; or
could have an adverse effect on a listed marine species as defined in clause 2; or
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could have an adverse effect on the environment (as defined in clause 2), including
the environment within a Commonwealth marine area (as defined in clause 2); or
could have an adverse effect on cetaceans (as defined in clause 2); or
could have an adverse effect on a listed migratory species as defined in clause 2; or
could have an adverse effect on the National Heritage values of a place included in
the National Heritage List as defined in clause 2; or
could have an adverse effect on the ecological character of a declared Ramsar
wetland as defined in clause 2; or
could have an adverse effect on the world heritage values of a declared World
Heritage property as defined in clause 2; or
could have an adverse effect on a place that Australia is required to protect by the
terms of a listed international agreement as defined in clause 2; or
could have an adverse effect on an area that, under law of the Commonwealth, a State
or a Territory, is reserved wholly or principally for marine conservation purposes
(however described); or
could have an adverse effect on an area that, under a law of the Commonwealth, a
State or a Territory, is protected from significant environmental disturbance.
Second, the ACA must have regard to whether the submarine cable is to be installed at or
near an area or thing that is of particular significance to Aboriginal persons, or Torres
Strait Islanders, in accordance with their traditions.
Third, the ACA must have regard to such other matters as the ACA considers relevant.
Clause 73 - Time limit on decision about a permit
This clause requires the ACA to decide to grant or refuse to grant a non-protection zone
installation permit within 180 days after the day the application for the permit was made.
The ACA may extend, or further extend, this initial 180-day period by not more than 90
days. An extension of time must be accompanied by a written notice from the ACA to
the applicant notifying them why the ACA has been unable to make a decision within the
initial or previously extended time period under this clause.
If the ACA has requested further information under clause 68, the `clock stops' for the
purposes of this clause, until the requested information is received.
This clause requires the ACA to make a decision on a non-protection zone installation
permit within a reasonable time.
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Clause 74 - Duration of permit
This clause allows a non-protection zone installation permit to remain in force for 18
months. The 18-month period of the permit commences on the day it is granted. An
applicant may seek an extension of a permit under clause 76.
Clause 75 - Surrender of permit
This clause allows a carrier holding a non-protection zone installation permit to surrender
the permit at any time by notifying the ACA in writing.
A carrier may surrender the permit, for example, where it has been granted an installation
permit and no longer wishes to install the cable.
Clause 76 - Extension of permit
This clause allows a carrier holding a non-protection zone installation permit to apply to
the ACA to extend the duration of the permit for a further 180 days.
A carrier seeking such an extension will be required to give the ACA reasons in writing
for seeking the extension. A carrier must seek an extension before the non-protection
zone installation permit expires.
If the ACA refuses an application to extend a permit, it must give the carrier its reasons
for refusal in writing. An ACA decision to refuse to extend the duration of a non-
protection zone installation permit will be able to be reviewed by the AAT following a
process of internal reconsideration by the ACA (see Part 29 of the Telecommunications
Act and item 7 of Schedule 1 to the Bill).
Under section 53 of the ACA Act, the ACA will be able to charge a fee in relation to an
extension of a non-protection zone installation permit.
There is no limit to the number of extensions that can be granted, but a fee will be
payable in each case.
Clause 77 - Suspension or cancellation of permit
This clause allows the ACA to suspend or cancel a non-protection zone installation
permit by giving written notice to the holder of the permit. To suspend or cancel a
permit, the ACA must be satisfied that the carrier holding the permit has breached a
condition of the permit or has not complied with any conditions in the
Telecommunications Code of Practice applying to the installation of submarine cables.
This clause gives the ACA authority to enforce compliance with the terms of its
installation permits and with the Telecommunications Code of Practice.
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Clause 15 of Schedule 3 to the Telecommunications Act allows the Minister to make a
Code of Practice setting out conditions to be complied with by carriers in installing and
maintaining facilities. Item 5 of Schedule 1 to the Bill allows the Minister to include
conditions in a Code of Practice to be complied with by carriers installing submarine
cables in accordance with a permit to install submarine cables under Part 3 of proposed
Schedule 3A.
The ACA must give the holder of a permit 30 days' written notice of its intention to
suspend or cancel a permit before it does so. The grounds upon which the suspension or
cancellation is based must be given in the notice.
The ACA must give the permit holder the opportunity to submit to the ACA any matters
for consideration, and must take into account any matters submitted and any remedial
action taken, before deciding whether to suspend or cancel the permit.
If, following the ACA's consultation with the permit holder, the ACA decides to suspend
or cancel the permit, the ACA's decision will be able to be reviewed by the AAT
following a process of internal reconsideration by the ACA (see Part 29 of the
Telecommunications Act and item 7 of Schedule 1 to the Bill).
Division 4 - Conditions applicable to the installation of submarine
cables
Division 4 of Part 3 of proposed Schedule 3A to the Telecommunications Act sets out
certain conditions that will be applicable to the installation of submarine cables in
accordance with that Schedule. The Telecommunications Code of Practice 1997 may
impose conditions in addition to those in Division 4 of Part 3 of this Schedule (see item 5
of Schedule 1 to the Bill).
This Division applies to submarine cables installed by carriers both in declared protection
zones (under protection zone installation permits) and in Australian waters outside a
protection zone and outside coastal waters (under non-protection zone installation
permits).
Clause 78 - Application of this Division
Clause 78 provides that Division 4 applies to the installation of a submarine cable by a
carrier, or another person on behalf of the carrier, in a protection zone or in Australian
waters (as defined in clause 2), other than coastal waters of a State or Territory.
Installations in coastal waters that are not in a protection zone will come under the
jurisdiction of relevant State or Territory planning authorities and it is not proposed to
apply the conditions in Division 4 in such waters.
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Clause 79 - Installation to do as little damage as practicable
This clause requires a carrier installing a submarine cable in a protection zone or in
Australian waters other than coastal waters of a State or Territory in accordance with a
permit granted by the ACA to take all reasonable steps to cause as little detriment,
inconvenience and damage as is practicable.
Clause 80 - Management of installation activities
This clause requires a carrier to ensure that all reasonable steps are taken to ensure that
the installation of a submarine cable in a protection zone or in Australian waters (other
than coastal waters) accords with good engineering practice, protects the safety of
persons and property, and protects the environment.
Clause 81 - Compliance with industry standards
This clause requires a carrier to ensure that the installation of a submarine cable in a
protection zone or in Australian waters (other than coastal waters) is done according to
any standard recognised by the ACA as a standard for use in the telecommunications
industry that relates to the installation and is likely to reduce the risks to the public in
relation to safety if it is complied with.
Part 6 of the Telecommunications Act gives the ACA the power to determine industry
standards in certain circumstances and to require compliance with them.
Clause 82 - Compliance with international agreements
This clause requires a carrier to ensure that the installation of a submarine cable in a
protection zone or in Australian waters (other than coastal waters) is undertaken in a
manner consistent with Australia's obligations under a relevant listed international
agreement (as defined in clause 2).
Clause 83 - Conditions specified in the regulations
This clause requires a carrier to ensure that the installation of a submarine cable in a
protection zone or in Australian waters (other than coastal waters) complies with
conditions that are specified in the regulations.
Division 5 - Offences in relation to installation of submarine cables
This Division creates offences including installing a submarine cable without a permit
from the ACA, breaching a condition of a permit, and failing to comply with a direction
from the ACA to remove an unlawfully-installed cable.
Note that Division 4 of Part 2 provides criminal penalties for offences relating to
activities in protection zones.
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Note also that Division 5 of Part 2 enables a person who has suffered loss or damage
because a submarine cable has been damaged or because another person has engaged in
prohibited or restricted activities in a protection zone to recover civil damages.
Clause 84 - Installing a submarine cable without a permit
This clause provides that it is an offence to install or cause to be installed a submarine
cable where the cable is installed in a protection zone or in Australian waters (other than
in a protection zone or coastal waters) and the person installing the cable does not have a
permit authorising the installation of a cable issued under clause 56 or clause 69.
Note that enforcement of laws relating to the installation of cables in coastal waters
outside a protection zone and within the jurisdiction of States or Territories is a matter for
those jurisdictions.
For the purposes of the offence, `install', in relation to a submarine cable, will have a
meaning that corresponds to the definition of `installation' in clause 2 (see Acts
Interpretation Act 1901, s. 18A, which provides that in any Act, unless the contrary
intention appears, where a word or phrase is given a particular meaning, other parts of
speech and grammatical forms of that word or phrase have corresponding meanings).
The word `install', in relation to a submarine cable, in clause 84 will therefore include:
(a) to lay the cable on or beneath the seabed; and
(b) to attach the cable to any other cable or thing; and
(c) to carry out any other activity that is ancillary or incidental to the installation.
As a result of section 5.6 of the Criminal Code, intention will be the fault element for the
physical element of the conduct of installing a submarine cable without a permit. The
prosecution will therefore be required to prove that a person intentionally engaged in the
conduct in question. Subsection 5.2(1) of the Criminal Code provides that a person has
intention with respect to conduct if he or she means to engage in that conduct.
As this offence will apply only in relation to a carrier (as only a carrier may be issued
with an installation permit), the maximum penalty for this offence will be 200 penalty
units. A penalty unit is currently worth $110 (see s. 4AA of the Crimes Act). The
maximum penalty currently applying to this offence is therefore $22,000.
Strict liability applies in relation to paragraph 84(1)(b) ie. that the cable is installed in a
protection zone or in Australian waters that are not in a protection zone and that are not
coastal waters. As a result of section 6.1 of the Criminal Code, no fault elements will
apply in relation to paragraph 84(1)(b). The prosecution will therefore not be required to
prove intention, knowledge, recklessness or negligence in relation to paragraph 84(1)(b).
The prosecution need only prove that the relevant physical element of the offence did
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occur, namely that the cable is installed in a protection zone or in Australian waters that
are not in a protection zone and that are not coastal waters.
The defence of honest and reasonable mistake of fact under section 9.2 of the Criminal
Code will be available in relation to paragraph 84(1)(b). That is, a person will not be
criminally responsible if, at or before the time of the conduct resulting in damage to the
submarine cable, the person considered whether or not the conduct would occur in a
protection zone or non-protection zone but was under a mistaken but honest and
reasonable belief about the location of the protection zone and the non-protection zone.
Subclause 84(3) provides that the offence will not apply to a person who installs a
submarine cable on behalf of a carrier, if the carrier has a permit authorising the
installation of the cable.
The evidential burden expressed in subsection 13.3(3) of the Criminal Code applies for
the purpose of this defence. This means that a defendant must adduce or point to
evidence that suggests a reasonable possibility that a matter specified in the defence
exists or does not exist.
Clause 85 - Breaching conditions of a permit
This clause provides that it is an offence for a carrier to install a submarine cable in a
protection zone or in Australian waters (other than in a protection zone or coastal waters)
if the carrier, or person acting on behalf of the carrier, installing the cable engages in
conduct that breaches a condition of a permit issued under clause 56 or clause 69.
The term `engage in conduct' is defined in clause 2 to mean to do an act or omit to do an
act.
As a result of section 5.6 of the Criminal Code, intention will be the fault element for the
physical element of the conduct of installing a submarine cable in contravention of the
conditions of a permit. The prosecution will therefore be required to prove that a person
intentionally engaged in the conduct in question. Subsection 5.2(1) of the Criminal Code
provides that a person has intention with respect to conduct if he or she means to engage
in that conduct.
The maximum penalty for this offence will be 100 penalty units. A penalty unit is
currently worth $110 (see s. 4AA of the Crimes Act). The maximum penalty currently
applying to this offence is therefore $11,000.
A permit may contain conditions specific to the installation of a particular submarine
cable. For example, the ACA may require the cable to be trenched or buried within a
specified distance of the landing point.
A carrier in breach of a condition of an installation permit under this clause will also be
in breach of its licence conditions (see ss. 61, 68 and cl. 1 of Schedule 1 of the
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Telecommunications Act) and potentially liable to pecuniary penalties under Part 31 of
the Telecommunications Act. However, the effect of section 572 of the
Telecommunications Act is that criminal proceedings cannot be brought against a carrier
solely on the basis that they are in breach of their licence conditions.
Clause 86 - Failing to comply with ACA direction to remove an unlawfully installed
cable
This clause provides that the ACA may direct a carrier to remove a submarine cable in a
number of circumstances. These are:
where, after the commencement of proposed Schedule 3A, the carrier has
installed or caused to be installed a submarine cable in a protection zone or in
Australian waters without a permit authorising the installation; or
where, after the commencement of proposed Schedule 3A, the carrier installing or
causing to be installed a submarine cable in a protection zone or in Australian
waters is undertaking the installation without a permit authorising the installation.
A carrier that fails to comply with a direction by the ACA to remove a cable in these
circumstances will be guilty of an offence. The maximum penalty for this offence will be
200 penalty units. A penalty unit is currently worth $110 (see s. 4AA of the Crimes Act).
The maximum penalty currently applying to this offence is therefore $22,000.
Failing to comply with an ACA direction under this clause will also be a breach of a
carrier's licence conditions (see ss. 61, 68 and cl. 1 of Schedule 1 of the
Telecommunications Act). The carrier concerned will therefore potentially be liable for
pecuniary penalties under Part 31 of the Telecommunications Act. However, the effect
of section 572 of the Telecommunications Act is that criminal proceedings cannot be
brought against a carrier solely on the basis that they are in breach of their licence
conditions.
Part 4 - Compensation
Clause 87 - Compensation
This clause is based on clause 42 of Schedule 3 to the Telecommunications Act. It
provides for a carrier to pay compensation to a person who suffers financial loss or
damage in relation to property because of anything done by a carrier under the powers
conferred on it under proposed Schedule 3A.
Clause 88 - Compensation for acquisition of property
This clause inserts a constitutional `safety net' provision to deal with the possibility that a
court may find that the actions of a carrier under proposed Schedule 3A, or rights
conferred on a carrier under that Schedule in relation to a submarine cable, may result in
an invalid acquisition of property from a person within the meaning of section 51(xxxi)
of the Constitution. In such circumstances, the carrier (rather than the Commonwealth)
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will be required to pay the person a reasonable amount of compensation as agreed
between the person and the carrier or, failing agreement, a reasonable amount of
compensation determined by a court of competent jurisdiction.
There is a degree of uncertainty about the operation of section 51(xxxi) of the
Constitution. It is possible that in certain circumstances a court may find that the
activities of a carrier exercising the powers and immunities provided under proposed
Schedule 3A to the Telecommunications Act, or the existence of rights conferred on a
carrier under Schedule 3A in relation to a submarine cable, amount to an `acquisition of
property', and that compensation on `just terms' has not been provided.
In the absence of clause 88, if a court were to find that there has been an acquisition of
property otherwise than on just terms, the Commonwealth may be liable to pay
compensation under section 591 of the Telecommunications Act. Section 591 provides a
constitutional safety net to permit people whose property has been acquired by the
operation of the Telecommunications Act otherwise than on just terms to claim
compensation from the Commonwealth.
The effect of this clause is to ensure that, in the event that installation and maintenance
work being done by carriers under Schedule 3A, or the operation of Schedule 3A itself,
gives rise to an acquisition of property, the carriers will bear the risk of liability and the
cost of compensation rather than the Commonwealth.
In assessing compensation under this clause, any other compensation or damages
obtained by the person from the carrier arising from the same event, or any other remedy
given in a proceeding arising from the same event, must be taken into account.
Subclause 88(3) makes it clear that clause 88 is not intended to limit the operation of
clause 87, which provides for a carrier to pay compensation to a person who suffers
financial loss or damage in relation to property because of anything done by a carrier
under the powers conferred on it under proposed Schedule 3A.
Part 5 - Miscellaneous
Clause 89 - Review of operation of this Schedule
This clause requires the ACA to review the operation of proposed Schedule 3A to the
Telecommunications Act, dealing with the protection of submarine cables, within 5 years
of the commencement of the Schedule. The resulting review report must be given to the
Minister, who must cause a copy of the report to be laid before each House of Parliament
within 15 sitting days of receiving the report. Note that this review is of the operation of
the protection regime as a whole established under this Bill, not the operation of any
protection zone declaration.
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Item 7 - At the end of clause 1 of Schedule 4
Schedule 4 to the Telecommunications Act specifies the kinds of decisions that are
reviewable by the AAT following a process of internal reconsideration by the ACA.
This item adds to the list of reviewable decisions the following:
a decision under clause 56 of proposed Schedule 3A to refuse to grant a protection
zone installation permit, or to grant such a permit subject to conditions;
a decision under clause 61 of proposed Schedule 3A to refuse to extend the duration
of a protection zone installation permit;
a decision under clause 62 of proposed Schedule 3A to suspend or cancel a protection
zone installation permit;
a decision under clause 69 of proposed Schedule 3A to refuse to grant a non-
protection zone installation permit, or to grant such a permit subject to conditions;
a decision under clause 76 of proposed Schedule 3A to refuse to extend the duration
of a non-protection zone installation permit; and
a decision under clause 77 of proposed Schedule 3A to suspend or cancel a non-
protection zone installation permit.
This clause clarifies the nature of decisions that are subject to merits review. Note that
decisions under clauses 4, 10, 11 and 23 are not merits-reviewable, but are made by way
of a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Part 2 - Amendments required if the Australian Communications and
Media Authority Act 2005 commences before this Act
Part 2 of Schedule 1 to the Bill contains amendments which will be required if the
proposed Australian Communications and Media Authority Act 2005 (the ACMA Act)
commences before the Bill, as enacted. The ACMA Act, if enacted, will deal with the
proposed merger of the ACA and the Australian Broadcasting Authority to form the
ACMA. However, if Part 1 of Schedule 1 to the Bill commences before the
establishment of the ACMA, the amendments in Part 2 of Schedule 1 will not commence
at all (see item 3 of the table in clause 2 of the Bill). In that case, the proposed Australian
Communications and Media Authority (Consequential and Transitional Provisions) Act
2005 will make the appropriate amendments from 1 July 2005 or an earlier date to be
proclaimed.
Telecommunications Act 1997
Item 8 - Clause @1 of Schedule 3A
Clause 1 of proposed Schedule 3A to the Telecommunications Act provides a simplified
outline to that Schedule, which deals with the protection of submarine cables.
If the ACMA Act commences before the Bill, as enacted, item 8 will omit references to
`ACA' in clause 1 and substitute references to `ACMA'.
99
Item 9 - Subclause 2(1) of Schedule 3A (definition of advisory committee)
Subclause 2(1) of proposed Schedule 3A to the Telecommunications Act defines the term
`advisory committee' for the purposes of that Schedule as an advisory committee
established under section 51 of the ACA Act.
If the ACMA Act commences before the Bill, as enacted, item 9 will replace this
definition with a definition referring to an advisory committee established under the
corresponding provision of the ACMA Act (proposed section 58 of that Act).
Item 10 - Subclause 2(1) of Schedule 3A (definition of protection zone)
Subclause 2(1) of proposed Schedule 3A to the Telecommunications Act defines the term
`protection zone' as a protection zone declared by the ACA under clause 4 of that
Schedule.
If the ACMA Act commences before the Bill, as enacted, item 10 will omit the reference
in this definition to `ACA' and substitute a reference to `ACMA'.
Item 11 - Clause 3 of Schedule 3A
Clause 3 of proposed Schedule 3A to the Telecommunications Act provides a simplified
outline to Part 2 of that Schedule which deals with protection zones in relation to a
submarine cable installed in Australian waters.
If the ACMA Act commences before the Bill, as enacted, item 11 will omit references to
`ACA' in clause 3 and substitute references to `ACMA'.
Item 12 - Subclause 4(1) of Schedule 3A
Item 13 - Subclause 4(2) of Schedule 3A (including the note)
Clause 4 of proposed Schedule 3A to the Telecommunications Act provides that the ACA
may, after satisfying the consultation and other requirements of Subdivision B of
Division 2 of Part 2 of that Schedule, declare a protection zone in relation to one or more
submarine cables, or one or more submarine cables that are proposed to be installed, in
Australian waters.
If the ACMA Act commences before the Bill, as enacted, items 12 and 13 will omit
references to `ACA' in clause 4 and substitute references to `ACMA'. The heading to
clause 4 and the note to subclause 4(2) will also be altered by omitting references to
`ACA' and substituting references to `ACMA'.
100
Item 14 - Paragraph 5(a) of Schedule 3A
Paragraph 5(a) of proposed Schedule 3A to the Telecommunications Act provides that a
declaration of a protection zone may be made on the ACA's initiative.
If the ACMA Act commences before the Bill, as enacted, item 14 will omit the reference
to `ACA's' from paragraph 5(a) and substitute a reference to `ACMA's'. The heading to
clause 5 will also be altered by omitting the reference to `ACA's' and substituting a
reference to `ACMA's'.
Item 15 - Subclause 6(1) of Schedule 3A
Item 16 - Subclause 6(2) of Schedule 3A
Item 17 - Subclause 6(2) of Schedule 3A
Clause 6 of proposed Schedule 3A to the Telecommunications Act provides that, in
response to a request to declare a protection zone by a person, the ACA may decide to
develop a proposal for a protection zone, and if the ACA so decides it must then give the
person a copy of its proposal. If the ACA decides not to develop a proposal for a
protection zone, in response to a request to declare a protection zone, it must then notify
the requesting person in writing providing reasons for the ACA's decision.
If the ACMA Act commences before the Bill, as enacted, items 15 and 16 will omit
references to `ACA' from subclauses 6(1) and (2) and substitute references to `ACMA'.
The references to `ACA' in the headings to subclauses 6(1) and (2) will also be
substituted with references to `ACMA'. Item 17 will omit the reference to `ACA's' from
subclause 6(2) and substitute a reference to `ACMA's'.
Item 18 - Subclause 7(1) of Schedule 3A
Item 19 - Subclause 7(1) of Schedule 3A
Item 20 - Subclause 7(2) of Schedule 3A
Clause 7 of proposed Schedule 3A to the Telecommunications Act provides that if the
ACA develops a protection zone proposal in response to a request from a person but
subsequently decides not to declare a protection zone, the ACA must notify the person in
writing providing reasons for its decision. If the ACA develops a protection zone
proposal in response to a request from a person but then declares a protection zone that is
different from the proposed protection zone, the ACA must provide the person with a
copy of the declaration.
If the ACMA Act commences before the Bill, as enacted, items 18 and 19 will omit
references to `ACA' and `ACA's' from subclauses 7(1) and substitute references to
`ACMA' and `ACMA's'. Item 20 will omit references to `ACA' from subclause 7(2)
and substitute references to `ACMA'.
101
Item 21 - Subclause 9(1) of Schedule 3A
Subclause 9(1) of proposed Schedule 3A to the Telecommunications Act provides for the
area of a protection zone unless the ACA specifies otherwise.
If the ACMA Act commences before the Bill, as enacted, item 21 will omit the reference
in subclause 9(1) to `ACA' and substitute a reference to `ACMA'.
Item 22 - Subclause 12(1) of Schedule 3A
Subclause 12(1) of proposed Schedule 3A to the Telecommunications Act allows the
declaration of a protection zone to be made subject to any conditions the ACA considers
appropriate.
If the ACMA Act commences before the Bill, as enacted, item 22 will omit the reference
in subclause 12(1) to `ACA' and substitute a reference to `ACMA'.
Item 23 - Subclause 13(1) of Schedule 3A
Item 24 - Subclause 13(2) of Schedule 3A
Clause 13 of proposed Schedule 3A to the Telecommunications Act allows the ACA to
specify the time at which a protection zone declaration comes into effect. Where a
protection zone is declared for a cable or cables not yet installed, the declaration cannot
come into effect at a time before the time the ACA is satisfied that the installation of the
cable or cables will begin.
If the ACMA Act commences before the Bill, as enacted, items 23 and 24 will omit
references to `ACA' in subclauses 13(1) and (2) and substitute references to `ACMA'.
Item 25 - Subclause 14(1) of Schedule 3A
Subclause 14(1) of proposed Schedule 3A to the Telecommunications Act provides that a
declaration of a protection zone continues in effect until the ACA revokes it.
If the ACMA Act commences before the Bill, as enacted, item 25 will omit the reference
in subclause 14(1) to `ACA' and substitute a reference to `ACMA'.
Item 26 - Subclause 15(1) of Schedule 3A
Subclause 15(1) of proposed Schedule 3A to the Telecommunications Act requires the
ACA to develop a proposal for a submarine cable protection zone before declaring the
zone.
If the ACMA Act commences before the Bill, as enacted, item 26 will omit the references
in subclause 15(1) to `ACA' and substitute references to `ACMA'. The heading to clause
102
15 will also be altered by omitting the reference to `ACA' and substituting a reference to
`ACMA'.
Item 27 - Subclauses 16(1) and (3) of Schedule 3A
Clause 16 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
refer a proposal for a submarine cable protection zone to an advisory committee.
If the ACMA Act commences before the Bill, as enacted, item 27 will omit the references
in subclauses 16(1) and (3) to `ACA' and substitute references to `ACMA'. The heading
to clause 16 will also be altered by omitting the reference to `ACA' and substituting a
reference to `ACMA'.
Item 28 - Subclause 17(1) of Schedule 3A
Item 29 - Paragraph 17(2)(b) of Schedule 3A
Clause 17 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
publish a proposal for a submarine cable protection zone and invite public submissions
about the proposal.
If the ACMA Act commences before the Bill, as enacted, items 28 and 29 will omit the
references in subclause 17(1) and paragraph 17(2)(b) to `ACA' and substitute references
to `ACMA'. The heading to clause 17 will also be altered by omitting the reference to
`ACA' and substituting a reference to `ACMA'.
Item 30 - Clause 18 of Schedule 3A
Clause 18 of proposed Schedule 3A to the Telecommunications Act provides that the
ACA must not declare a submarine cable protection zone unless the ACA is satisfied that
the cable or cables in question is or will be of national significance.
If the ACMA Act commences before the Bill, as enacted, item 30 will omit the references
to `ACA' in clause 18 and substitute references to `ACMA'.
Item 31 - Subclauses 19(1) and (2) of Schedule 3A
Clause 19 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
consult with the Environment Secretary before declaring a submarine cable protection
zone.
If the ACMA Act commences before the Bill, as enacted, item 31 will omit the references
to `ACA' in subclauses 19(1) and (2) and substitute references to `ACMA'.
103
Item 32 - Clause 20 of Schedule 3A
Clause 20 of proposed Schedule 3A to the Telecommunications Act sets out the matters
to which the ACA must have regard in deciding whether to declare a submarine cable
protection zone.
If the ACMA Act commences before the Bill, as enacted, item 32 will omit the references
to `ACA' in clause 20 and substitute references to `ACMA'. The heading to clause 20
will also be altered by omitting the reference to `ACA' and substituting a reference to
`ACMA'.
Item 33 - Clause 21 of Schedule 3A
Clause 21 of proposed Schedule 3A to the Telecommunications Act specifies the
environment and heritage considerations to which the ACA must have regard if a
proposed protection zone relates to a submarine cable that is not yet installed.
If the ACMA Act commences before the Bill, as enacted, item 33 will omit the references
to `ACA' in clause 21 and substitute references to `ACMA'.
Item 34 - Clause 22 of Schedule 3A
Item 35 - Clause 22 of Schedule 3A
Clause 22 of proposed Schedule 3A to the Telecommunications Act deals with the
deadline for the ACA's final decision about whether or not to declare a protection zone.
If the ACMA Act commences before the Bill, as enacted, items 34 and 35 will omit
references to `ACA' and `ACA's' in clause 22 and substitute references to `ACMA' and
`ACMA's'.
Item 36 - Subclauses 23(1) and (2) of Schedule 3A (including the notes)
Clause 23 of proposed Schedule 3A to the Telecommunications Act provides that the
ACA may vary or revoke a declaration of a protection zone after complying with the
consultation and other requirements of Subdivision B of Division 3 of Part 2 of that
Schedule.
If the ACMA Act commences before the Bill, as enacted, item 36 will omit references to
`ACA' in subclauses 23(1) and (2) and in the notes to those subclauses and substitute
references to `ACMA'. The heading to clause 23 will also be altered by omitting the
reference to `ACA' and substituting a reference to `ACMA'.
104
Item 37 - Paragraph 24(a) of Schedule 3A
Paragraph 24(a) of proposed Schedule 3A to the Telecommunications Act provides that a
variation or revocation of a declaration of a submarine cable protection zone may be
made on the ACA's own initiative.
If the ACMA Act commences before the Bill, as enacted, item 37 will omit the reference
to `ACA's' in paragraph 24(a) and substitute a reference to `ACMA's'. The heading to
clause 24 will also be altered by omitting `ACA's' and substituting `ACMA's'.
Item 38 - Clause 25 of Schedule 3A
Clause 25 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
notify an affected carrier of any request to vary or revoke a submarine cable protection
zone declaration.
If the ACMA Act commences before the Bill, as enacted, item 38 will omit references to
`ACA' in clause 25 and substitute references to `ACMA'. The heading to clause 25 will
also be altered by omitting the reference to `ACA' and substituting a reference to
`ACMA'.
Item 39 - Subclauses 26(1) and (2) of Schedule 3A
Item 40 - Subclause 26(2) of Schedule 3A
Clause 26 of proposed Schedule 3A to the Telecommunications Act specifies how the
ACA is to deal with a request to vary or revoke a declaration of a submarine cable
protection zone.
If the ACMA Act commences before the Bill, as enacted, items 39 and 40 will omit
references to `ACA' and `ACA's' in subclauses 26(1) and (2) and substitute references to
`ACMA' and `ACMA's'. The headings to subclauses 26(1) and 26(2) will also be
altered by omitting `ACA' and substituting `ACMA'.
Item 41 - Clause 27 of Schedule 3A
Item 42 - Clause 27 of Schedule 3A
Clause 27 of proposed Schedule 3A to the Telecommunications Act provides that if the
ACA, after developing a proposal to revoke or vary a declaration of a protection zone,
decides not to vary or revoke the declaration in response to a request form a person, the
ACA must notify the person in writing providing reasons for its decision.
If the ACMA Act commences before the Bill, as enacted, items 41 and 42 will omit
references to `ACA' and `ACA's' in clause 27 and substitute references to `ACMA' and
`ACMA's'.
105
Item 43 - Clause 28 of Schedule 3A
Clause 28 of proposed Schedule 3A to the Telecommunications Act provides that a
variation or revocation of a declaration of a protection zone takes effect at the time
specified by the ACA.
If the ACMA Act commences before the Bill, as enacted, item 43 will omit the reference
to `ACA' in clause 28 and substitute a reference to `ACMA'.
Item 44 - Subclause 30(1) of Schedule 3A
Subclause 30(1) of proposed Schedule 3A to the Telecommunications Act provides that
before the ACA varies or revokes a declaration of a protection zone, the ACA must
develop a proposal to vary or revoke the declaration.
If the ACMA Act commences before the Bill, as enacted, item 44 will omit references to
`ACA' in subclause 30(1) and substitute references to `ACMA'. The heading to clause
30 will also be altered by omitting the reference to `ACA' and substituting a reference to
`ACMA'.
Item 45 - Subclauses 31(1) and (3) of Schedule 3A
Clause 31 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
refer a proposal for the variation or revocation of a protection zone declaration to an
advisory committee.
If the ACMA Act commences before the Bill, as enacted, item 45 will omit references in
subclauses 31(1) and (3) to `ACA' and substitute references to `ACMA'. The heading to
clause 31 will also be altered by omitting the reference to `ACA' and substituting a
reference to `ACMA'.
Item 46 - Subclause 32(1) of Schedule 3A
Item 47 - Paragraph 32(2)(b) of Schedule 3A
Clause 32 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
publish a proposal to vary or revoke the declaration of a submarine cable protection zone
and invite public submissions about the proposal.
If the ACMA Act commences before the Bill, as enacted, items 46 and 47 will omit
references to `ACA' in subclause 32(1) and paragraph 32(2)(b) and substitute references
to `ACMA'. The heading to clause 32 will also be altered by omitting the reference to
`ACA' and substituting a reference to `ACMA'.
106
Item 48 - Subclauses 33(1) and (2) of Schedule 3A
Clause 33 of proposed Schedule 3A to the Telecommunications Act requires the ACA to
consult the Environment Secretary before varying or revoking a declaration of a
protection zone.
If the ACMA Act commences before the Bill, as enacted, item 48 will omit references to
`ACA' in subclauses 33(1) and (2) and substitute references to `ACMA'.
Item 49 - Clause 34 of Schedule 3A
Clause 34 of proposed Schedule 3A to the Telecommunications Act specifies the matters
to which the ACA must have regard in deciding whether to vary or revoke a declaration
of a protection zone.
If the ACMA Act commences before the Bill, as enacted, item 49 will omit references to
`ACA' in clause 34 and substitute references to `ACMA'. The heading to clause 34 will
also be altered by omitting the reference to `ACA' and substituting a reference to
`ACMA'.
Item 50 - Clause 35 of Schedule 3A
Clause 35 of proposed Schedule 3A to the Telecommunications Act specifies the
deadline for the ACA's final decision about varying or revoking a protection zone
declaration.
If the ACMA Act commences before the Bill, as enacted, item 50 will omit references to
`ACA' in clause 35 and substitute references to `ACMA'.
Item 51 - Subclause 47(1) of Schedule 3A
Item 52 - Subclause 47(1) of Schedule 3A
Subclause 47(1) of proposed Schedule 3A to the Telecommunications Act requires the
ACA to notify relevant authorities of any declaration, variation or revocation of a
protection zone.
If the ACMA Act commences before the Bill, as enacted, items 51 and 52 will omit
references to `ACA' and `ACA's' in subclause 47(1) and substitute references to
`ACMA' and `ACMA's'. The heading to clause 47 will also be altered by omitting the
reference to `ACA' and substituting a reference to `ACMA'.
Item 53 - Clause 48 of Schedule 3A
Clause 48 of proposed Schedule 3A to the Telecommunications Act provides that where
a declaration of a protection zone in relation to a submarine cable has been made and the
cable is decommissioned or no longer used, the carrier responsible for the cable must
107
notify the ACA in writing of the decommissioning or cessation of use of the cable as
soon as practicable. The obligation to notify the ACA does not arise where the
submarine cable is temporarily out of commission.
If the ACMA Act commences before the Bill, as enacted, item 53 will omit the reference
to `ACA' in clause 48 and substitute a reference to `ACMA'.
Item 54 - Subclause 49(2) of Schedule 3A
Item 55 - Subclause 49(3) of Schedule 3A (definition of interested)
Clause 49 of proposed Schedule 3A to the Telecommunications Act provides that an
advisory committee established by the ACA for the purpose of making recommendations
on a proposal for a protection zone declaration, variation or revocation must not consist
of more than 12 members, including representatives of interested States, authorities,
instrumentalities, industries and groups.
If the ACMA Act commences before the Bill, as enacted, item 54 will omit references to
`ACA' in subclause 49(2) and in the definition of `interested' in subclause 49(3) and
substitute references to `ACMA'.
Item 56 - Clause 50 of Schedule 3A
Clause 50 of proposed Schedule 3A to the Telecommunications Act provides a simplified
outline of Part 3 of that Schedule which deals with permits to install submarine cables.
If the ACMA Act commences before the Bill, as enacted, item 56 will omit the reference
to `ACA' in clause 50 and substitute a reference to `ACMA'.
Item 57 - Clause 51 of Schedule 3A
Clause 51 of proposed Schedule 3A to the Telecommunications Act provides that a
carrier may apply to the ACA for a permit to install one or more submarine cables in a
protection zone.
If the ACMA Act commences before the Bill, as enacted, item 57 will omit the reference
to `ACA' in clause 51 and substitute a reference to `ACMA'.
Item 58 - Paragraph 52(b) of Schedule 3A
Paragraph 52(b) of proposed Schedule 3A to the Telecommunications Act provides that
an application for a protection zone installation permit must be in a form approved in
writing by the ACA.
If the ACMA Act commences before the Bill, as enacted, item 58 will omit the reference
to `ACA' in paragraph 52(b) and substitute a reference to `ACMA'.
108
Item 59 - Clause 53 of Schedule 3A
Clause 53 of proposed Schedule 3A to the Telecommunications Act provides that an
application for a protection zone installation permit must be accompanied by a charge (if
any) imposed on the application by a determination under section 53 of the ACA Act.
If the ACMA Act commences before the Bill, as enacted, item 59 will omit the reference
to section 53 of the ACA Act and substitute a reference to the corresponding section
(section 60) of the ACMA Act.
Item 60 - Subclauses 55(1) and (2) of Schedule 3A
Clause 55 of proposed Schedule 3A to the Telecommunications Act allows the ACA to
request an applicant for a protection zone installation permit to provide further
information about the application.
If the ACMA Act commences before the Bill, as enacted, item 60 will omit the references
to `ACA' in subclauses 55(1) and (2) and substitute references to `ACMA'.
Item 61 - Subclause 56(1) of Schedule 3A
Item 62 - Subclause 56(2) of Schedule 3A
Item 63 - Subclauses 56(3) and (4) of Schedule 3A
Item 64 - Subclause 56(4) of Subclause 3A
Clause 56 of proposed Schedule 3A to the Telecommunications Act deals with the ability
of the ACA to grant or refuse to grant a protection zone installation permit.
If the ACMA Act commences before the Bill, as enacted, items 61 to 64 will omit
references in clause 56 to `ACA' and `ACA's' and substitute references to `ACMA' and
`ACMA's'.
Item 65 - Subclause 57(1) of Schedule 3A
Item 66 - Subclauses 57(2), (3) and (4) of Schedule 3A
Item 67 - Subclause 57(5) of Schedule 3A (definition of business day)
Clause 57 of proposed Schedule 3A to the Telecommunications Act provides that an
application by a carrier for a protection zone installation permit will be deemed to have
been refused if the ACA has not granted or refused the permit by the relevant deadline
day.
If the ACMA Act commences before the Bill, as enacted, items 65 to 67 will omit
references in clause 57 to `ACA' and substitute references to `ACMA'.
109
Item 68 - Clause 58 of Schedule 3A
Clause 58 of proposed Schedule 3A to the Telecommunications Act provides for a refund
of the application charge for a protection zone installation permit where the application is
deemed to have been refused by the ACA.
If the ACMA Act commences before the Bill, as enacted, item 68 will omit references to
`ACA' in clause 58 and substitute references to `ACMA'.
Item 69 - Clause 60 of Schedule 3A
Clause 60 of proposed Schedule 3A to the Telecommunications Act allows the holder of
a protection zone installation permit to surrender the permit to the ACA at any time.
If the ACMA Act commences before the Bill, as enacted, item 69 will omit the reference
in clause 60 to `ACA' and substitute a reference to `ACMA'.
Item 70 - Subclauses 61(1) and (2) of Schedule 3A
Item 71 - Subclause 61(3) of Schedule 3A
Item 72 - Subclause 61(3) of Schedule 3A
Clause 61 of proposed Schedule 3A to the Telecommunications Act allows the holder of
a protection zone installation permit to apply to the ACA to extend the duration of the
permit.
If the ACMA Act commences before the Bill, as enacted, items 70 to 72 will omit
references to `ACA' and `ACA's' in clause 61 and substitute references to `ACMA' and
`ACMA's'.
Item 73 - Subclause 62(1) of Schedule 3A
Item 74 - Paragraph 62(2)(a) of Schedule 3A
Item 75 - Paragraph 62(2)(a) of Schedule 3A
Item 76 - Paragraph 62(2)(b) of Schedule 3A
Item 77 - Paragraph 62(2)(c) of Schedule 3A
Item 78 - Paragraph 62(2)(c) of Schedule 3A
Clause 62 of proposed Schedule 3A to the Telecommunications Act allows the ACA to
suspend or cancel a protection zone installation permit in certain circumstances.
If the ACMA Act commences before the Bill, as enacted, items 73 to 78 will omit
references to `ACA' and `ACA's' in clause 62 and substitute references to `ACMA' and
`ACMA's'.
110
Item 79 - Clause 64 of Schedule 3A
Clause 64 of proposed Schedule 3A to the Telecommunications Act allows a carrier to
apply to the ACA for a permit to install one or more submarine cables in Australian
waters that are not in a protection zone and that are not coastal waters of a State or the
Northern Territory.
If the ACMA Act commences before the Bill, as enacted, item 79 will omit the reference
to `ACA' in clause 64 and substitute a reference to `ACMA'.
Item 80 - Paragraph 65(b) of Schedule 3A
Paragraph 65(b) of proposed Schedule 3A to the Telecommunications Act provides that
an application for a non-protection zone installation permit must be in the form approved
by the ACA.
If the ACMA Act commences before the Bill, as enacted, item 80 will omit the reference
to `ACA' in paragraph 65(b) and substitute a reference to `ACMA'.
Item 81 - Clause 66 of Schedule 3A
Clause 66 of proposed Schedule 3A to the Telecommunications Act provides that an
application for a non-protection zone installation permit must be accompanied by the
charge (if any) imposed on the application by a determination under section 53 of the
ACA Act.
If the ACMA Act commences before the Bill, as enacted, item 81 will omit the reference
in clause 66 to section 53 of the ACA Act and substitute a reference to the corresponding
section (section 60) of the ACMA Act.
Item 82 - Subclauses 68(1) and (2) of Schedule 3A
Clause 68 of proposed Schedule 3A to the Telecommunications Act allows the ACA to
request the applicant for a non-protection zone installation permit for further information
about the application.
If the ACMA Act commences before the Bill, as enacted, item 82 will omit references to
`ACA' in subclauses 68(1) and (2) and substitute references to `ACMA'.
111
Item 83 - Subclause 69(1) of Schedule 3A
Item 84 - Subclause 69(2) of Schedule 3A
Item 85 - Subclauses 69(3) and (4) of Schedule 3A
Item 86 - Subclause 69(4) of Schedule 3A
Clause 69 of proposed Schedule 3A to the Telecommunications Act deals with the ability
of the ACA to grant or refuse to grant an application for a non-protection zone
installation permit.
If the ACMA Act commences before the Bill, as enacted, items 83 to 86 will omit
references in clause 69 to `ACA' and `ACA's' and substitute references to `ACMA' and
`ACMA's'.
Item 87 - Clause 70 of Schedule 3A
Clause 70 of proposed Schedule 3A to the Telecommunications Act provides that the
ACA must not grant a non-protection zone installation permit unless it has consulted with
the Environment Secretary and any other persons the ACA considers relevant in relation
to the application for the permit.
If the ACMA Act commences before the Bill, as enacted, item 87 will omit references to
`ACA' in clause 70 and substitute references to `ACMA'. The heading to clause 70 will
also be altered by omitting `ACA' and substituting `ACMA'.
Item 88 - Clause 71 of Schedule 3A
Clause 71 of proposed Schedule 3A to the Telecommunications Act specifies the matters
to which the ACA must have regard in deciding whether to grant a non-protection zone
installation permit.
If the ACMA Act commences before the Bill, as enacted, item 88 will omit references to
`ACA' in clause 71 and substitute references to `ACMA'. The heading to clause 71 will
also be altered by omitting `ACA' and substituting `ACMA'.
Item 89 - Clause 72 of Schedule 3A
Clause 72 of proposed Schedule 3A to the Telecommunications Act specifies the
environment and heritage considerations to which the ACA must have regard in
considering the impact of the installation of a submarine cable on the environment in
relation to an application for a non-protection zone installation permit.
If the ACMA Act commences before the Bill, as enacted, item 89 will omit references to
`ACA' in clause 72 and substitute references to `ACMA'.
112
Item 90 - Subclauses 73(1) and (2) of Schedule 3A
Item 91 - Paragraph 73(2)(b) of Schedule 3A
Item 92 - Subclause 73(3) of Schedule 3A
Clause 73 of proposed Schedule 3A to the Telecommunications Act imposes a time limit
on the ACA's decision to grant, or refuse to grant a non-protection zone installation
permit.
If the ACMA Act commences before the Bill, as enacted, items 90 to 92 will omit
references to `ACA' in clause 73 and substitute references to `ACMA'.
Item 93 - Clause 75 of Schedule 3A
Clause 75 of proposed Schedule 3A to the Telecommunications Act provides that the
holder of a non-protection zone installation permit may, at any time, surrender the permit
by written notice given to the ACA.
If the ACMA Act commences before the Bill, as enacted, item 93 will omit the reference
to `ACA' in clause 75 and substitute a reference to `ACMA'.
Item 94 - Subclauses 76(1) and (2) of Schedule 3A
Item 95 - Subclause 76(3) of Schedule 3A
Item 96 - Subclause 76(3) of Schedule 3A
Clause 76 of proposed Schedule 3A to the Telecommunications Act allows the holder of
a non-protection zone installation permit to apply to the ACA to extend the duration of
the permit.
If the ACMA Act commences before the Bill, as enacted, items 94 to 96 will omit
references to `ACA' and `ACA's' in clause 76 and substitute references to `ACMA' and
`ACMA's'.
Item 97 - Subclause 77(1) of Schedule 3A
Item 98 - Paragraph 77(2)(a) of Schedule 3A
Item 99 - Paragraph 77(2)(a) of Schedule 3A
Item 100 - Paragraph 77(2)(b) of Schedule 3A
Item 101 - Paragraph 77(2)(c) of Schedule 3A
Item 102 - Paragraph 77(2)(c) of Schedule 3A
Clause 77 of proposed Schedule 3A to the Telecommunications Act allows the ACA to
suspend or cancel a non-protection zone installation permit in certain circumstances.
If the ACMA Act commences before the Bill, as enacted, items 97 to 102 will omit
references to `ACA' and `ACA's' in clause 77 and substitute references to `ACMA' and
`ACMA's'.
113
Item 103 - Paragraph 81(b) of Schedule 3A
Paragraph 81(b) of proposed Schedule 3A to the Telecommunications Act requires a
carrier to ensure that the installation of a submarine cable is done in accordance with any
standard that is recognized by the ACA as a standard for use in the telecommunications
industry.
If the ACMA Act commences before the Bill, as enacted, item 103 will omit the
reference to `ACA' in paragraph 81(b) and substitute a reference to `ACMA'.
Item 104 - Subclauses 86(1) and (3) of Schedule 3A
Clause 86 of proposed Schedule 3A to the Telecommunications Act allows the ACA
to direct a carrier to remove a submarine cable if it has been installed without a permit.
If the ACMA Act commences before the Bill, as enacted, item 104 will omit references
to `ACA' in subclauses 86(1) and (3) and substitute references to `ACMA'. The heading
to clause 86 will also be altered by omitting `ACA' and substituting `ACMA'.
Item 105 - Subclause 89(1) of Schedule 3A
Subclause 89(1) of proposed Schedule 3A to the Telecommunications Act requires the
ACA to review the operation of that Schedule within 5 years after its commencement.
If the ACMA Act commences before the Bill, as enacted, item 105 will omit the
reference to `ACA' in subclause 89(1) and substitute a reference to `ACMA'.
Schedule 2 - Other measures
Item 1 - Clause 2 of Schedule 3 (definition of environment)
Item 1 of Schedule 2 to the Bill repeals the existing definition of the term `environment'
in Schedule 3 to the Telecommunications Act and replaces it with the definition of the
term in the Environment Protection and Biodiversity Conservation Act 1999.
The effect of this change so far as Schedule 3 to the Telecommunications Act is
concerned will be to require the ACA to include `heritage values of places' in its
consideration of the environmental aspects of proposed terrestrial installation activities
under Schedule 3 to the Telecommunications Act.
Item 2 - At the end of Schedule 3
Item 2 of Schedule 2 to the Bill inserts a new Part 3 in Schedule 3 to the
Telecommunications Act. Schedule 3 to the Telecommunications Act gives carriers
certain powers to enter on land and install a telecommunications facility on the land or
maintain a facility that is situated on the land.
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New Part 3 of Schedule 3 consists of 2 new clauses: clause 62 dealing with compensation
for acquisition of property for the purposes of Schedule 3 and clause 63 which deals with
the application of new Part 3.
Part 3 - Compensation for acquisition of property
Clause 62 - Compensation for acquisition of property
This clause applies to actions of a carrier in entering on land to inspect it, installing
facilities on the land and maintaining facilities on the land, in pursuance of the powers
and immunities allowed to carriers under Schedule 3 to the Telecommunications Act. It
also applies to the existence of rights conferred on a carrier under, or because of,
Schedule 3 in relation to a building, structure or facility owned or operated by a carrier.
This clause is inserted because of the degree of uncertainty about the operation of section
51(xxxi) of the Constitution. It is possible that in certain circumstances a court may find
that the activities of a carrier exercising the powers and immunities provided under
Schedule 3, or the existence of rights conferred on a carrier under or because of Schedule
3, amount to an `acquisition of property', and that compensation on `just terms' has not
been provided.
As the law currently stands, if a court were to find that there has been an acquisition of
property otherwise than on just terms, the Commonwealth may be liable to pay
compensation under section 591 of the Telecommunications Act. Section 591 provides a
constitutional safety net to permit people whose property has been acquired otherwise
than on just terms by the operation of that Act to claim compensation from the
Commonwealth.
The effect of this clause is to ensure that, in the event that a court were to find that
installation and maintenance work being done by carriers under Schedule 3, or the
operation of Schedule 3 itself, would result in an acquisition of property, the relevant
carrier would bear the risk of liability and the cost of compensation rather than the
Commonwealth.
The amount of compensation will be able to be agreed between the carrier and the person
whose property has been acquired. Failing agreement, a court of competent jurisdiction
may determine a reasonable amount of compensation.
In assessing compensation under this clause, any other compensation or damages
obtained by the person from the carrier arising from the same event, or any other remedy
given in a proceeding arising from the same event, must be taken into account.
The clause does not limit the operation of clause 42 of Schedule 3, which requires a
carrier to pay reasonable compensation to a person who suffers financial loss or damage
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because of anything done by a carrier under Schedule 3 in relation to the person's
property.
In this clause, the term `acquisition of property' will have the same meaning as in section
51(xxxi) of the Constitution.
Clause 63 - Application of this Part
This clause is an application provision for the purposes of proposed clause 62 of
Schedule 3 to the Telecommunications Act.
It provides for clause 62 to have a prospective operation (from the commencement of
Schedule 2 to the Bill). Clause 2 of the Bill provides that Schedule 2 commences on the
day after the Bill, when enacted, receives Royal Assent.