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2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(SUBMARINE CABLE PROTECTION) BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
the Honourable Malcolm Turnbull MP)
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(SUBMARINE CABLE PROTECTION) BILL 2013
OUTLINE
The Australian Government recognises the importance of submarine cables to Australia`s
economy and in 2005 put in place legislation to protect certain submarine cables under
Schedule 3A of the Telecommunications Act 1997 (Cth) (the Act). The Australian
Communications and Media Authority (ACMA) conducted a review into the first five years
of operation of the regime, as required under Schedule 3A to the Act. The review made six
recommendations. After considering the recommendations, the Government developed a
number of legislative amendments to improve the operation of Schedule 3A. Public
consultation on the proposed amendments was undertaken in March 2013.
Background
Submarine cables are an important component of Australia`s national infrastructure. They
carry the bulk of Australia`s international voice and data traffic, and provide a vital link
between Australia and other countries. As an island nation, the Australian economy is
especially dependent on submarine cables.
Damage to cables which causes service disruption can therefore have a significant economic
impact. Man-made causes account for the overwhelming majority of damage caused to
cables. Around 70% of all cable faults are caused by fishing and anchoring in depths of less
than 200 metres.1 For a nation that is so dependent on submarine cables to connect to the
global telecommunications network and engage in the global digital economy society, the
risks associated with cable damage are particularly serious. That is why the Australian
Government established a regime for the protection of nationally significant submarine cables
connecting Australia to other countries in 2005.
Submarine cable protection regime
Schedule 3A to the Act currently sets out a regulatory regime for the protection of submarine
telecommunications cables that connect Australia to places outside of Australia. That is, the
scheme only captures cables that enter Australia`s territorial sea and land in Australia. The
aim of the regime is to minimise the risk to submarine cables from human activity,
particularly some kinds of fishing, anchoring of vessels and dredging.
Schedule 3A gives the industry regulator, ACMA, the power to establish protection zones
around existing or planned submarine cables of national significance and regulate activities of
vessels and persons within protection zones.
Schedule 3A also establishes an installation permit system for international submarine cables
that connect to Australia. The requirement for carriers to obtain a permit to install
international submarine cables that land in Australia provides certainty in relation to people`s
rights in Australian waters and to manage cable congestion.
1
Marles, G., Carter, L., Burnett, D., International Cable Protection Committee, About submarine
telecommunications cables, 2011.
1
Australia`s regime has been widely praised, by both the Asia-Pacific Economic Cooperation2
and the International Cable Protection Committee,3 as a global best practice example for the
protection of submarine cables. The amendments proposed in this Bill are intended to further
enhance the regime.
Review on the operation of Schedule 3A
Clause 89 of Schedule 3A required the ACMA to review the operation of Schedule 3A and
report to the Minister Communications (the Minister) within five years after the Schedule
commenced. In accordance with clause 89, the ACMA completed its review of Schedule 3A
in 2010 and published a report on its review, A report on five years' operation of Schedule 3A
to the Telecommunications Act 1997, the submarine cable protection regime4 (the Report).
The Report concluded that generally the operation of Schedule 3A had met the policy
objectives set by the Government. However, the ACMA identified some scope for
improvements to the operation of Schedule 3A and made six recommendations, namely that:
1. The Minister consult with the Commonwealth Attorney-General (Attorney-General) about
the conduct and funding for a study to determine whether active compliance monitoring
in protection zones is necessary and if needed, how this monitoring could be provided.
2. Clauses 17 and 32 of Schedule 3A be amended so that the ACMA is only required to
publish a summary of a proposal to declare, vary or revoke a protection zone.
3. Clause 56 of Schedule 3A be amended so the ACMA has the power to set standard
conditions that would apply to protection zone permits.
4. Clause 69 of Schedule 3A be amended so the ACMA has the power to set standard
conditions that would apply to non-protection zone permits.
5. The Minister make note of the concerns raised about potential inconsistency between
Schedule 3A and the United Nations Convention on the Law of the Sea (UNCLOS) and
recognise the need to remove the potential for any inconsistency.
6. The Minister take steps to amend Schedule 3A to provide for protection zones around
other submarine cables with national significance that are wholly within Australian waters.
Recommendation 1 of the Report has been considered separately by the Government, and the
Government has decided to rely on existing practices to ensure protection zones are
monitored.
Recommendations 2 to 6 involve amendments to Schedule 3A. These recommendations are
the basis for the proposed amendments in this Bill, along with some other issues identified by
the Government.
2
Detecon Asia-Pacific Ltd, Economic Impact of Submarine Cable Disruptions prepared for Asia-Pacific
Economic Cooperation Policy Support Unit, Bangkok, 2012, p. 60,
3
International Cable Protection Committee, Critical Infrastructure - Submarine Telecommunications Cables`,
International Cable Protection Committee, Submarine Cable Network Security`,
4
Australian Communications and Media Authority, A report on five years` operation of Schedule 3A to the
Telecommunications Act 1997, the submarine cable protection regime`,
2
Overview of the Bill
The Bill covers five main themes, namely:
(a) clarifying consistency between Schedule 3A and UNCLOS;
(b) enabling domestic submarine cables to be brought within the scope of the regime by
regulation;
(c) providing a clearer consultation process between the ACMA and the
Attorney-General`s Department on submarine cable installation permit applications;
(d) further streamlining the submarine cable installation permit process by removing the
requirement to obtain multiple permits, tightening permit application processing
timeframes and reducing unnecessary duplication with the Environment Protection
and Biodiversity Act 1999 (EPBC Act); and
(e) otherwise enhancing the operation of Schedule 3A by ensuring the protection zone
declaration, revocation and variation processes are administratively more efficient.
Subject to proposed transitional provisions outlined in the Bill, the amendments, if passed by
the Australian Parliament, would commence at the start of the day after the Bill receives the
Royal Assent.
Key concepts
At the outset, it is important to note that the proposed amendments to Schedule 3A will not
capture international submarine cables that do not connect to a place in Australia (as defined
in the Act). That is, Schedule 3A will continue to cover international submarine cables that
enter Australia`s territorial sea and connect to a place in Australia to a place in another
country (item 15). The amendments will also create scope to bring domestic submarine
cables (i.e. cables that enter Australia`s territorial sea and connect to Australia from another
place in Australia) within the regime (item 12). However, Schedule 3A will not capture
submarine cables only transiting through Australian waters and not landing in Australia.
Maritime boundaries
An important concept in Schedule 3A is that of maritime boundaries. UNCLOS is the
international agreement that establishes the rights and duties of nations in relation to the seas
and oceans. Australia ratified UNCLOS on 5 October 1994.
International law permits coastal States5 to claim maritime zones extending from their
coastlines. As a result, coastal States have certain rights (and obligations) over the ocean,
seabed, subsoil and air space adjacent to their territory. The extent of each zone, and the
rights and obligations of States therein, are governed principally by UNCLOS. The main
maritime zones of relevance to the submarine cable regime, moving seaward from the
coastline, are:
· coastal waters, under Australian law, each State and the Northern Territory has
primary jurisdiction over its respective coastal waters (up to three nautical miles
from the coastline) and the land where submarine cables emerge from the sea.
Coastal waters` are not prescribed by international law. It is a mechanism under
which Australia provides some jurisdictional rights to the States and Territories
5
A coastal State is a State that is not landlocked e.g. Australia.
3
within Australia`s territorial sea. Schedule 3A provides carriers with immunity from
certain state and territory laws when installing submarine cables within protection
zones. However, submarine cable installation permits do not apply in waters outside
protection zones that are in coastal waters. In coastal waters, carriers may need to
obtain certain permits under state and territory law. Nothing in this bill alters these
arrangements.
· territorial sea, within which a coastal State exercises full sovereignty, subject only
to the right of innocent passage by foreign ships. The territorial sea is measured from
the low water mark of the coastline, known as the territorial sea baseline, out to 12
nautical miles.
· contiguous zone within which Australia may exercise control necessary to prevent
and punish infringement of its customs, fiscal, immigration or sanitary laws and
regulations within its territory or territorial sea. The contiguous zone is measured
from the territorial sea baseline out to 24 nautical miles.
· exclusive economic zone (EEZ) within which a coastal State has sovereign rights
and jurisdiction with respect to certain activities. The EEZ extends from the limits of
the territorial sea out to 200 nautical miles from the territorial sea baseline.
· continental shelf within which the coastal State exercises sovereign rights over
natural resources. The continental shelf comprises the seabed and subsoil of the
submarine area which forms a natural prolongation to a coastal State`s land territory.
The continental shelf extends to 200 nautical miles, from the territorial sea baseline,
and may extend up to 350 nautical miles where the physical features permit.
The following diagram illustrates the maritime boundaries in Australian waters:
© Commonwealth of Australia (Geoscience Australia) 2012.
UNCLOS provides that all States are entitled to lay submarine cables on the continental shelf,
in accordance with the relevant provisions of UNCLOS.
Pursuant to UNCLOS, Australia may exercise jurisdiction over Australian nationals and
Australian-flagged ships wherever they are in the world. Australia may also exercise
jurisdiction over foreign nationals and ships undertaking activities in Australia`s territorial
4
sea. However, Australia does not have jurisdiction to regulate foreign nationals or ships in the
EEZ or on the continental shelf unless specifically provided for under UNCLOS or at
international law. In addition, while Australia can require carriers, including carriers that are
foreign nationals, to obtain a permit to install a cable that enters its territorial sea, any
conditions on the permit must be consistent with Australia`s rights and obligations under
UNCLOS or other international law.
Outline of the Bill
This section outlines the main amendments proposed in the Bill.
(a) Clarifying consistency between Schedule 3A and UNCLOS
As currently enacted, Schedule 3A appears to enable the regulation of activities of foreign
nationals and vessels in the waters of the EEZ and the continental shelf that fall within
submarine cable protection zones. Schedule 3A also appears to impose permit conditions on
carriers that are foreign nationals installing submarine cables landing in Australia, which can
attract civil and criminal penalties if breaches of the permit conditions are enforced.
To remove concerns about any potential inconsistency with UNCLOS, the Bill would modify
the application of Schedule 3A to foreign nationals6 and foreign ships. Under the proposed
amendment, it would not be an offence for foreign nationals and ships to engage in an
activity otherwise prohibited beyond Australia`s territorial sea, unless such regulation is
consistent with Australia`s rights and obligations under UNCLOS (item 41).
A further amendment would require the Minister or a government agency (intended to refer
to an agency other than the ACMA) to obtain the Attorney-General`s consent before it can
institute any proposed criminal or civil proceedings (in respect of an injunction or recovery of
a pecuniary penalty) against a carrier that is a foreign national for breach of a permit
condition where the breach occurs beyond the territorial sea. The Attorney-General would
need to have regard to whether the enforcement action would be consistent with UNCLOS
(item 73).
It should be noted that in practice the ACMA does not exercise its powers under Schedule 3A
in manners inconsistent with UNCLOS. The ACMA is required under the Act7 to have regard
to UNCLOS in performing its telecommunications functions and exercising its powers, such
as taking civil enforcement action against carriers for breach of an installation permit
condition.
6
Foreign national` under the proposed changes to Schedule 3A would mean a national that is not an Australian
national. An Australian national` would be defined to mean an Australian citizen; a body corporate established
by, or under a law of the Commonwealth, State or a Territory; the Commonwealth; a State; or a Territory.
7
Section 580 of the Act and item 21 of the Telecommunications (International Conventions) Notification No. 1
of 1997.
5
The current and proposed approaches are summarised in the table below.
Nationality Territorial EEZ Continental shelf
waters*
Maximum distance 12 NM 200 NM Variable depending
from shore (22.23 km) (370.40 km) on sea topography
but a minimum of
200 NM (370.40 km)
Current treatment Australian national or All offences apply
ship
Offences in a protection
Foreign national or All offences apply
ship
Proposed treatment Australian national or All offences apply
ship
Foreign national on a All offences The offences do not apply unless
foreign ship apply regulation of the act or omission is
zone
consistent with Australia`s rights and
obligations under UNCLOS
Current treatment Australian carrier All conditions apply
Enforcement of permit
Foreign carrier All conditions apply
Proposed treatment Australian carrier All conditions apply
Foreign carrier All conditions Where there is no involvement of an
conditions
apply Australian ship, conditions
enforceable for certain types of
enforcement action with consent of
Attorney-General
*includes coastal waters, which extend to 3 NM from the coastline
Shaded areas indicate a change made by the Bill
While the proposed new approach means there is some asymmetry in the treatment of
Australian nationals and ships and foreign nationals and ships, the view has been taken that
this is acceptable to maximise both the protection of submarine cables and consistency with
Australia`s rights and obligations under UNCLOS. In this context, it is worth noting that
Australian nationals and ships are also subject to the provisions of the Submarine Cables and
Pipelines Protection Act 1963 which reflects Australia`s obligations under UNCLOS and the
Convention for the Protection of Submarine Telegraph Cables of 1884, and these obligations
apply to Australian nationals and ships in all waters globally.
(b) Enabling domestic submarine cables to be brought within the scope of the regime
Currently, Schedule 3A only applies to submarine cables that connect a place in Australia to a
place outside of Australia. However, there may be undersea cables that connect one place in
Australia to another place in Australia (domestic submarine cables) that have potential
economic and wider importance and, therefore, warrant protection.
To ensure significant domestic submarine cables can be suitably protected, the Bill would
amend Schedule 3A to:
give the Governor-General the power to specify in regulations that a domestic submarine
cable or cable route warrants protection (item 20);
6
give the ACMA the power to declare a protection zone in relation to a domestic
submarine cable or cable route that is specified in the regulations (items 20, 29); and
allow carriers to apply for a protection zone permit to land a domestic submarine cable in
an existing protection zone at the time of the application, so as to allow for the installation
of domestic cables in protection zones (items 47, 77).
In relation to the first point, the power is given to the Governor-General because it would
allow stakeholder issues to be considered by the executive government. This process would
allow appropriate weight to be given to all stakeholder issues, including maritime industries
that may be affected. In relation to the third point, Schedule 3A currently does not allow
domestic submarine cables to land in protection zones. The proposed amendment would
allow this if such a situation were to arise. A permit would not be required to land domestic
cables outside a protection zone, as this activity is not regulated under Schedule 3A.
(c) Providing a clearer consultation process on installation permit applications
Schedule 3A does not provide a structured process for consideration of the
Attorney-General`s Department`s portfolio matters in relation to proposed submarine cable
installations. To provide a structured process for the consideration of these matters including,
for example, international law, native title or security matters, the Bill would require the
ACMA to consult the Secretary of the Attorney-General`s Department on permit
applications. In light of such consultation, the Secretary of the Commonwealth
Attorney-General`s Department can indicate there is no objection to the application, make a
submission, or extend the consultation period by giving notice to the ACMA. If the Secretary
of the Attorney-General`s Department makes a submission, the ACMA would be required to
consider the submission in deciding whether to issue a permit (items 51, 54, 63, 65).
The Bill would also give the Commonwealth Attorney-General the power, after consultation
with the Prime Minister and the Minister, to direct the ACMA not to issue a permit if doing
so would be prejudicial to security (items 54, 68). The Attorney-General can only give this
direction on the consideration of security matters, not on consideration of other matters
within the Attorney-General`s portfolio responsibilities. It is envisaged that this power would
only be used in exceptional cases where appropriate risk mitigation strategies could not
otherwise be put in place.
To support the proposed process, the Bill would include consequential amendments,
including appropriate review rights (items 1, 2, 3, 85, 86, 87 and 88). The proposed
provisions are modelled on the carrier licence application process under the Act, particularly
proposed sections 56A and 58A, and are therefore familiar to industry.
(d) Further streamlining the installation permit process
This group of amendments is aimed at streamlining the permit regime. One key amendment
proposed is the removal of the requirement for carriers to obtain two permits for an
international submarine cable that will pass through a protection zone and non-protection
zone. A further amendment reduces the timeframe for processing non-protection zone permit
applications.
Currently, Schedule 3A requires carriers to obtain a protection zone permit for the part of a
cable that will be laid in a protection zone, and a non-protection zone permit for the part of a
cable that will be laid in a non-protection zone. In addition, the timeframe for processing a
7
non-protection zone permit application--180 days with the possibility of an extension of 90
days--is lengthy.
To ensure the permit process is more efficient and provides industry with greater certainty,
the Bill will amend Schedule 3A so:
carriers only need to apply for one permit to land a submarine cable, with a protection
zone permit required for cables that pass through a protection zone and a non-protection
zone permit for cables that do not pass through a protection zone (item 47); and
processing timeframes for permit applications are clear, including reducing the default
processing timeframe for non-protection zone permit applications from 180 days to 60
business days and ensuring the processing timeframe for protection zone permit
applications is reasonable (items 54, 68).
Another key amendment is the removal of requirement for the ACMA to consult with the
Secretary of the Commonwealth Department of the Environment (Environment Secretary).
Under Schedule 3A, the ACMA is required to consult the Environment Secretary in relation
to non-protection zone installation permit applications. However, the EPBC Act also
regulates environmental and heritage aspects of proposed cable installations. As such, the
requirement to consult the Environment Secretary is duplicative and may unnecessarily delay
the permit decision process. The Bill would therefore remove the requirement for the ACMA
to consult the Environment Secretary (items 63, 66). Instead, the Bill would clarify that to
land a submarine cable a carrier must obtain all necessary Commonwealth regulatory
approvals (items 55, 69).
Other proposed amendments in the Bill to improve the permit process include:
setting allowable deviations from a specified cable route in protection zones and
non-protection zones as conditions for all cable installations, and empowering the ACMA
to vary the allowable deviations on individual permits if required (this gives effect to
recommendations 3 and 4 of the Report) (items 55, 69);
requiring permit applicants to notify the ACMA if any details in their application change
while the application is under consideration (items 50, 60); and
removing the provisions that deem a protection zone permit application to be refused
once the processing timeframe for such an application expires (item 54).
The flow chart (Figure A) illustrates the process for determining whether a carrier needs to
apply for an installation permit under the Bill.
Carriers installing submarine cables that will transit through Australian waters (which do not
require a permit) or connect to Australia (which do require a permit) are encouraged to
register their cables with the Australian Hydrographic Service (AHS). The AHS is the
Government agency responsible for the publication and distribution of nautical charts and
other information required for the safety of ships navigating in Australian waters.
In considering the Report, consideration was given to the merit of a mechanism to resolve
potential concerns about congestion in a protection zone. The industry response was that any
such issues can be addressed under established industry practices such as those set out in the
International Cable Protection Committee`s Recommendation No. 2: Recommended Routing
and Reporting Criteria for Cables in Proximity to Others. As such, the Bill does not tackle
this issue. Nevertheless, the Government maintains a watching brief on this matter.
8
(e) Otherwise enhancing the operation of Schedule 3A
Finally, the Bill proposes several administrative and technical amendments to improve the
overall operation of the regime. These amendments would:
require the ACMA to notify additional relevant authorities involved in sea monitoring and
enforcement activities of declared, varied or revoked protection zones (items 42, 43, 44);
allow the ACMA to publish a summary of a proposal to declare, vary or revoke a
protection zone in newspapers and the Gazette, but require the full proposal to be
published on its website (this gives effect to recommendation 2 of the Report) (items 27,
31);
require the ACMA to provide reasons if it declares a protection zone that is different to a
request for a protection zone (item 23);
clarify that prohibited or restricted activities in protection zones do not include activities
associated with the maintenance or repair of a submarine cable (items 25, 26); and
remove clause 89, which requires the ACMA to conduct a statutory review on the
operation of Schedule 3A by 2010, as the review has occurred (item 84).
9
10
FINANCIAL IMPACT STATEMENT
The amendments in the Bill are not expected to have any direct financial impact on
Commonwealth revenue or expenditure.
11
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications Legislation Amendment (Submarine Cable Protection) Bill 2013
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Background
Schedule 3A to the Telecommunications Act 1997 (the Act) was established in 2005 and sets
out a regulatory regime for the protection of telecommunications submarine cables that
connect Australia to places outside Australia. The aim of the regime is to minimise the risk to
submarine cables from human activity, particularly some kinds of fishing, anchoring and
dredging.
Schedule 3A gives the industry regulator, the Australian Communications and Media
Authority (the ACMA), the power to declare protection zones around existing or planned
submarine cables of national significance, regulate activities of ships and persons within
protection zones, and establishes an installation permit system for international submarine
cables that connect to Australia.
Purpose and overview of the Bill
Following a 2010 review of the regime by the ACMA,8 the Australian Government is
proposing amendments to improve the general operation of Schedule 3A.
The Bill covers five main themes, namely:
(a) ensuring consistency between Schedule 3A and the United Nations Convention on the
Law of the Sea (UNCLOS);9
(b) bringing domestic submarine cables within the scope of the regime;
(c) providing a clearer consultation process on installation permit applications;
(d) further streamlining the installation permit regime; and
(e) enhancing the operation of Schedule 3A.
8
http://www.acma.gov.au/webwr/_assets/main/lib311258/acma_submarine_cables_report.pdf.
9
UNCLOS is the international agreement that establishes the rights and duties of nations in relation to the seas
and oceans. Australia ratified UNCLOS on 5 October 1994.
12
Outline of the Bill
(a) Ensuring consistency between Schedule 3A and UNCLOS
As currently enacted, Schedule 3A seeks to regulate the activities of Australian and foreign
nationals and ships in the waters of the exclusive economic zone (EEZ)10 and the continental
shelf11 that fall within submarine cable protection zones. Schedule 3A also imposes permit
conditions on Australian and foreign carriers installing submarine cables connecting with
Australia, which attract civil and criminal penalties if breached. This gives rise to the
potential for inconsistency with UNCLOS.
To address these concerns, the Bill will amend Schedule 3A to modify how the regime
applies to foreign nationals and foreign ships, specifically:
it would not be an offence for foreign nationals and ships to engage in otherwise
prohibited or restricted activities beyond Australia`s territorial sea,12 unless such
regulation is consistent with Australia`s rights and obligations under UNCLOS; and
the Minister or a government agency 13 will be required to obtain the Commonwealth
Attorney-General`s consent before any proposed criminal proceedings, or civil
proceedings for an injunction or recovery of a pecuniary penalty against a foreign carrier
for breach of a permit condition, or installing a cable without a permit respectively,
beyond Australia`s territorial sea can be instituted (where there is no involvement of an
Australian ship).
(b) Bringing domestic submarine cables within the scope of the regime
Currently, Schedule 3A only applies to submarine cables that connect a place in Australia to a
place outside of Australia. However, to ensure significant domestic submarine cables that
connect one place in Australia to another place in Australia can be suitably protected, the Bill
will amend Schedule 3A to:
give the Governor-General the power to specify in regulations that a domestic submarine
cable or cable route warrants protection;
give the ACMA the power to declare a protection zone around a domestic submarine
cable or cable route that is specified in the regulations; and
allow carriers to apply for a protection zone installation permit to install a domestic
submarine cable in an existing protection zone at the time of the application, so as to
allow for the installation of domestic cables in protection zones.
(c) Providing a clearer consultation process on installation permit applications
Schedule 3A requires the ACMA to consult the Secretary of the Commonwealth Department
of the Environment (Environment Secretary) on non-protection zone installation permit
applications. As the Environment Protection and Biodiversity Conservation Act 1999 already
regulates environmental and heritage aspects of proposed cable installations, the separate
consultation requirement under Schedule 3A is unnecessary and will be removed.
10
Between 12 to 200 nautical miles from the coast.
11
The sea that is beyond the limits of the EEZ.
12
Between 3 to 12 nautical miles from the coast.
13
The ACMA is already required under the Act to consider UNCLOS before it brings any civil proceedings
against a foreign carrier (see section 580 of the Act and item 21 of the Telecommunications (International
Conventions) Notification No. 1 of 1997).
13
Clarification will be included to require carriers to obtain all necessary Commonwealth
regulatory approvals to install a submarine cable.
Schedule 3A does not provide a structured process for consideration of the Commonwealth
Attorney-General`s Department`s (AGD) portfolio matters in relation to proposed submarine
cable installations. To provide a process for the consideration of these matters including, for
example, international law, native title or security matters as relevant, the Bill will amend
Schedule 3A to:
require the ACMA to consult the Secretary of AGD on permit applications; and
give the Commonwealth Attorney-General the power, after consultation with the Prime
Minister and Minister for Communications, to direct the ACMA not to issue a permit if
doing so would be prejudicial to security. This power is expected to only be used in
exceptional cases where appropriate risk mitigation strategies cannot be put in place.
To support the proposed consultation process, the Bill will include consequential
amendments, including in respect of administrative review rights (see below).
The proposed provisions are modelled on the carrier licence application process under the
Act, particularly sections 56 and 58A, and are therefore familiar to industry.
(d) Streamlining the installation permit regime
The key amendment is the removal of the requirement for carriers to obtain two permits for
an international submarine cable that will pass through a protection zone and non-protection
zone. The default processing timeframes will be reduced from 180 to 60 business days for a
non-protection zone installation permit. Other technical administrative changes include
standard permit conditions:
allowing specified deviations from a declared cable route;
requiring permit applicants to notify ACMA of changes to the original application
(e) Further enhancing the operation of Schedule 3A
Finally, the Bill proposes several administrative and technical amendments to improve the
overall operation of the regime. These amendments include:
requiring the ACMA to notify relevant authorities involved in sea monitoring and
enforcement activities of declared, varied or revoked protection zones;
requiring the ACMA to give reasons if it declares a protection zone that is different to a
request for a protection zone; and
clarifying that prohibited or restricted activities in protection zones do not include
activities associated with the maintenance and repair of a submarine cable.
Human rights implications
The Bill engages the following rights and freedoms:
the right to access courts and tribunals for a fair hearing (Article 14(1) of the
International Covenant on Civil and Political Rights (the ICCPR));
the presumption of innocence and imposition of burden of proof on accused person
(Article 14(2) of the ICCPR);
the right to freedom from arbitrary or unlawful interference with privacy (Article 17 of
the ICCPR); and
the right to non-discrimination on the basis of other status (Article 26 of the ICCPR).
14
The right to access courts and tribunals for a fair hearing
Article 14(1) of the ICCPR provides that in any criminal hearing or suit at law (that is, civil
rights and obligations), a person has a right to a fair and public hearing by a competent,
independent and impartial tribunal or court.
The Bill would exclude the availability of expedited judicial review under the Administrative
Decisions (Judicial Review) Act 1977 (ADJR Act) for decisions of the Attorney-General to
direct the ACMA not to grant a permit to install a submarine cable (see proposed
paragraph (daaa) of Schedule 1 to the AJDR Act and proposed clauses 57A and 72A of
Schedule 3A to the Act). The Bill would also exclude the availability of reconsideration by
the ACMA and merits review by the Administrative Appeals Tribunal (AAT) respectively,
where one of the grounds for the ACMA refusing a permit includes security, or where the
ACMA imposes or varies a security related permit condition (see proposed paragraphs 1(za),
(zaa), (zd) and (zda) of Schedule 4 to the Act).
Given the sensitive national security implications of such decisions, it is considered a
legitimate objective that these decisions under proposed clauses 57A and 72A of Schedule
3A to the Act not be subject to judicial review under the ADJR Act and subject to
reconsideration and merits review rights. Excluding such decisions from these particular
forms of administrative review are considered necessary for protecting Australia`s national
security interests.
Similarly, it is considered a legitimate objective that decisions to refuse an installation permit
application on security grounds (see subclauses 56(3) and 69(3) of Schedule 3A to the Act);
or to impose or vary a security related permit condition (see proposed paragraphs 58A(1)(d)
and 73A(1)(c) of Schedule 3A to the Act) not be subject to reconsideration and merits review
rights. If the ACMA makes any such decisions, expedited judicial review rights under the
ADJR Act would remain.
The limitation is also considered proportionate for the purposes of Article 14(1) of the
ICCPR, as the person would still have the right to judicial review under section 39B of the
Judiciary Act 1903, or section 75(v) of the Constitution in a case where expedited review
under the ADJR Act was not available. Further, in a case where the Australian Security
Intelligence Organisation (ASIO) provides an adverse or qualified security assessment to the
Attorney-General to enable him or her to consider whether to direct the ACMA not to issue a
permit, that person would have a right to merits review by the AAT, in accordance with
Division 4 of Part IV of the Australian Security Intelligence Organisation Act 1979.
Similarly, to the extent that any civil or criminal enforcement action would be taken for a
breach of an installation permit condition or engagement in a restricted or prohibited activity
in a protection zone, the person would have a fair hearing or trial by an independent court or
tribunal.
Therefore, the Bill would be compatible with the right to a fair hearing under Article 14(1) of
the ICCPR.
15
Presumption of innocence and imposition of burden of proof on accused person
Provisions which place a legal or evidential burden of proof on a defendant in relation to a
matter will engage the right to be presumed innocent under Article 14(2) of the ICCPR.14 The
presumption of innocence generally requires the prosecution to prove each element of a
criminal offence beyond a reasonable doubt. Such provisions will constitute a permissible
limitation on the right to be presumed innocent where they are reasonable, necessary and
proportionate to achieving a legitimate aim.
Imposition of evidential burdens on the accused
Evidential burdens and offences relating to a protection zone for domestic cables
The Bill would allow the ACMA to declare protection zones around domestic submarine
cables that are specified in the regulations. In the event that a domestic submarine cable were
to be specified in the regulations and, following the public consultation processes set out in
the Act, the ACMA declared a protection zone around that cable the penalties for undertaking
a prohibited or restricted activity in a protection zone would apply, as they would if the
ACMA were to exercise its existing powers to declare a new protection zone around an
international submarine cable. Some of the existing penalties for undertaking prohibited or
restricted activities in a protection zone place the evidentiary burden of proof on the
defendant. Consistent with paragraphs 4.3.1 and 4.3.2 of the September 2011 A Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (the
Guide), none of the proposed offences or defences would impose a legal burden of proof on a
defendant.
The Bill would therefore result in specified provisions of Schedule 3A reversing the
evidential burden15 for offences in connection with undertaking a restricted or prohibited
activity within a protection zone that has been declared around domestic submarine cables
(i.e. if a person sought to rely on certain excuses or exemptions, the person would bear an
evidential burden in relation to the relevant facts). The relevant provisions are:
existing clause 38 (defences to offences of damaging a submarine cable under existing
subclauses 36(1) and 37(1)); and
existing clause 42 (defences to offences of engaging in prohibited or restricted activities
in a protection zone under existing clauses 40 and 41).
It is important to note that the enactment of the Bill itself would not be sufficient for the
offences and penalties to be enlivened in relation to a domestic submarine cable. Unless a
domestic submarine cable or cable route was specified in the regulations and the ACMA
declared a protection zone, the offences and penalties will not apply in those areas. For
clarity, the making of regulations and the declaration of a protection zone for a domestic
submarine cable would also be subject to a requirement to prepare a statement of
compatibility with human rights for the purposes of the Human Rights (Parliamentary
Scrutiny) Act 2011.
14
See, for example, R v Lambert [2001] UKHL 37; R v Momcilovic [2010] VSCA 50.
15
An evidential burden is where the defendant must adduce or point to evidence suggesting a reasonable
possibility that the matter does not exist (see subsection 13.3(6) of the Schedule to the Criminal Code Act 1995
(the Criminal Code).
16
A person would not be guilty of an offence if he or she displaced the evidential burden for
one of the available defences in existing clause 38. The defences are
where the conduct that caused the damage to the cable was necessary to save a life or
a ship;
the conduct was necessary to prevent pollution;
the defendant took all reasonable steps to avoid causing the damage;
the defendant is the carrier who owns or operates the submarine cable; or
at the time of the relevant conduct, the defendant was acting on behalf of the carrier
who owns or operates the submarine cable.
For the purposes of the offences under existing clauses 40 and 41, a person would be subject
to an evidential burden in relation to available defences under existing clause 42. These
defences are:
where the conduct that caused the damage to the cable was necessary to save a life or
a ship;
the conduct was necessary to prevent pollution; or
the defendant took all reasonable steps to avoid causing the damage.
As noted above, the objective of imposing evidential burdens on a defendant raising the
available defences are for the protection of submarine cables of critical significance to the
Australian economy (whether international or domestic). Given the harm that would follow
from any damage to domestic submarine cables, the Bill would impose substantial criminal
and civil penalties for conduct likely to damage such cables, in the same manner as the
current arrangements for international submarine cables.
The reversal of the evidential burdens are necessary, because all the matters specified in
existing clauses 38 and 42 are readily provable by the defendant as matters within their own
knowledge or that they would have ready access to. For example, the location of where a ship
is in relation to a protection zone can be readily proved given the widespread availability and
use of global positioning systems technology for ships. Indeed protection zones are
commonly included in hydrographical maps that are publicly available. Similarly, it is
appropriate that a defendant provide an explanation of why they considered conduct
necessary to save a life or a ship, as the defendant would be alleged to have taken the relevant
action. The defence of mistake of fact (see section 9.2 of the Criminal Code) would also be
available to the master or owner of the ship. As noted above, by virtue of subsection 13.3(3)
of the Criminal Code, the defendant would be subject to an evidential burden in relation to
the offence-specific defence, or the general defence of mistake of fact.
Therefore, the reversal of the evidential burdens (rather than legal burdens) constitutes a
reasonably proportionate means of achieving the legitimate objective of protecting critical
infrastructure of national significance.
Evidential burdens and offences relating to installing a domestic submarine cable in a
protection zone
The Bill will allow carriers installing a domestic submarine cable to apply for a permit to
install the proposed cable within an existing protection zone (regardless of whether the
protection zone was created for a domestic or international submarine cable). Proposed
clause 84A will make it an offence to install a domestic submarine cable in a protection zone
without a permit, mirroring existing clause 84 which applies to international submarine
17
cables only. Proposed subclauses 84A(3) and (4) respectively impose eventual burdens on a
person seeking to raise a defence that:
the carrier has a permit authorising the installation of the domestic submarine cable;
or
the person installed, or commenced installing the domestic submarine before
commencement of proposed clause 84A.
Once again, the objective being pursued by the Bill is for the protection of submarine cables
of national significance (whether international or domestic). The requirement that cables only
be in a protection zone where there is a permit to do so is necessary because this promotes the
protection, safety and proper functioning of critical infrastructure. For instance, if it is
proposed that a domestic submarine cable be installed, it may be necessary that the ACMA
impose conditions to avoid congestion with other cables.
Further, the objective being pursued is reasonable and proportionate as the matters are within
the knowledge of the accused. The carrier would be in a position to know whether they have
a permit authorising the installation of the domestic submarine cable. The carrier will also be
in the best position to know whether installation of the submarine cable commenced prior to
commencement of proposed clause 84A. It should be noted that this is already an offence to
install a domestic submarine cable in a protection zone (and permits cannot be obtained
allowing for the installation).
Proposed clause 84A would also contain elements of strict liability (see below).
Strict liability offences
Article 14(2) of the ICCPR is also engaged where strict liability offences apply.
Strict liability offences relating to a protection zone for domestic submarine cables
The Bill would result in strict liability applying to:
offence of damaging a domestic submarine cable under existing clauses 36 and 37;
offence for a master or owner of a ship under existing clause 39 permitting another person
to use the ship damaging a domestic submarine cable under existing clause 36;
offence for a master or owner of a ship under existing clause 44 permitting another person
to use the ship to engage in a restricted or prohibited activity in a protection zone under
existing clause 40 or 41.
For the purposes of existing clauses 36 and 37, strict liability applies only in respect of the
element of the submarine cable being in a protection zone. Consistent with paragraph 2.2.6 of
the Guide this is a jurisdictional element. It does not go to the essence of the offence. For
existing clause 36, the prosecution must still prove that the person intentionally engaged in
conduct which damaged a submarine cable. For existing clause 37, the prosecution must still
prove that the person was negligent as to the conduct damaging a cable. A defendant would
still be able to rely on a defence of mistake of fact (see section 9.2 of the Criminal Code) if at
or before the time of the conduct the person considered whether the conduct would occur in a
protection zone, but was under an honest and reasonable belief about the location of the
protection zone.
The objective being pursued is necessary to enable the successful prosecution of such
conduct. It would be difficult for the prosecution to adduce evidence as to the defendant`s
knowledge about whether the defendant was in a protection zone at the time of the relevant
18
conduct. The measures are reasonably proportionate as they go to jurisdictional elements only
and go to the defendant`s state of mind.
For existing clauses 39 and 44, strict liability applies only to the element that the person who
is permitted to use the ship by the master or the owner commits one of the underlying
offences under existing clause 36 (for existing paragraph 39(1)(c)); or existing clauses 40 or
41 (for existing paragraph 44(1)(c)). The prosecution must still prove that the owner or
master or the ship permitted another person to use the ship, the other person committed the
underlying offence; and the ship is used in the commission of the offence and the owner or
master is reckless. The prosecution does not need to prove any knowledge on the part of the
owner or master of the ship in relation to the specific elements of the underlying offence,
because it is difficult for the prosecution to prove that the defendant had knowledge in
relation to each element of the underlying offence.
Therefore the objective is necessary to enable the successful prosecution of such conduct.
Once again, the measures are reasonably proportionate to the objective as they go to technical
jurisdictional elements only (rather than the core element of the criminal offence). As noted
above, the defendant is also able to rely on a defence of mistake of fact (see section 9.2 of the
Criminal Code).
Strict liability offences relating to installing a domestic submarine cable in a protection zone
As noted above, proposed clause 84A will make it an offence to install a domestic submarine
cable in a protection zone without a permit. As is the case with the other strict liability
offences, strict liability applies only for the jurisdictional element of a domestic submarine
cable being installed in a protection zone without a permit. In addition to a defence of
mistake of fact (see section 9.2 of the Criminal Code), a person would have the right to the
exceptions in proposed subclauses 84A(3) and (4) discussed above.
Once again, the objective is protecting critical infrastructure of national significance. The
measures are necessary because it would be difficult for the prosecution to prove that the
defendant was aware whether the domestic submarine cable was in a protection zone. The
measures are reasonable and proportionate as they go to the jurisdictional element only,
reflecting a matter within the defendant`s state of mind.
Conclusion on offences applying for protection zones for domestic submarine cables and
installing a submarine cable in a protection zone
Accordingly, the evidential burdens and strict liability offences that would be imposed on a
defendant under Schedule 3A (as proposed to be amended by the Bill), constitute a
permissible limitation on the right to be presumed innocent under Article 14(2) of the ICCPR
and are therefore compatible with that right. The imposition of evidential burdens and strict
liability offences on a defendant would be a reasonable and proportionate limitation to protect
the security of submarine cables, and to allow for successful prosecution of unlawful conduct.
Submarine cables are critical to the Australian economy, with transoceanic communications
representing the overwhelming majority of communications between Australia and the rest of
the world. Similarly, the objective of protecting the security of significant domestic
submarine cables is of vital importance. In all instances, a defendant has a right to the general
defence of mistake of fact (see section 9.2 of the Criminal Code); and in some instance there
19
are offence-specific defences available. The reversal of the evidentiary burden and imposition
of strict liability offences would apply in a regulatory context where participants are expected
to know their obligations regarding submarine cables and protection zones.
Civil enforcement action
To clarify, to the extent that the Minister or the ACMA may take civil enforcement action
regarding a breach of the Act (such as a breach of a statutory condition under existing
Division 4 of Part 3 of Schedule 3A), there would be no legal burden imposed on the
defendant. The Minister or the ACMA would need to prove all elements of the civil penalty
provision on the balance of probabilities.
The right to freedom from arbitrary or unlawful interference with privacy
Article 17 of the ICCPR relevantly provides that everyone has the right to protection from
being subjected to arbitrary or unlawful interference with their privacy.
The Bill would require the ACMA`s approved application form for an installation permit to
include information about the ownership and control of any submarine cables specified in the
application (see proposed clauses 52 and 65 of Schedule 3A to the Act). As only a carrier
may apply for a permit, by definition ownership and control information will generally relate
to persons that are corporations. By virtue of section 52 of the Act, a person applying for a
carrier licence must be a corporation, eligible partnership or a public body. Although, it is
anticipated that the information required in a form would potentially include personal
information about an individual (as distinct from information about a corporation).
For the purposes of Article 17 of the ICCPR, the collection of information would not be
unlawful as it would be provided for and authorised under the Act. Further, requiring this
information would not be an arbitrary interference with the right to privacy, as it would be for
the legitimate and necessary objective of ensuring that national security and other relevant
matters are taken into account in deciding whether to grant a permit. Information collected on
owners or controllers of a submarine cable would be taken into account by the ACMA as part
of the decision making process for a permit application. Further, the Secretary of the AGD,
ASIO or the Attorney-General may have regard to the information in discharging their
respective functions in mitigating national security concerns.
The objective of having this information provided is necessary because it is for protecting
Australia`s national security interests; and ensuring that the ACMA has all relevant
information it requires in order to decide whether a permit should be granted.
Further, the limitation on the right to privacy is proportionate as the provision of personal
information in a permit application would only be triggered if a carrier chooses to apply for a
permit. The information would be used for the purposes of administering the permit regime
only. Information collected would be subject to safeguards preventing unauthorised
disclosure (such as the Information Privacy Principles under section 14 of the Privacy Act
1988; section 70 of the Crimes Act 1914; and the APS Values and Code of Conduct under the
Public Service Act 1999, where applicable). For example, the Information Privacy Principles
govern all stages of the processing of personal information, setting out standards for the
collection, storage, security, use, disclosure and quality of personal information.
20
Therefore, to the extent that the Bill may limit the right to privacy, the measures would
neither be unlawful nor arbitrary. Rather, the limitations are reasonable, necessary and
proportionate to protecting critical infrastructure of national significance under Schedule 3A
to the Act, and Australia`s national security interests.
The right to non-discrimination on the basis of other status (i.e. nationality)
Article 26 of the ICCPR prohibits discrimination in law or in practice in any field regulated
by public authorities on a number of grounds In addition to specifically enumerated
prohibited grounds of discrimination, there is the general category of other status`. The
United Nations Human Rights Committee (UNHRC) has previously indicated that nationality
will fall within the category of other status`.16 The UNHRC has recognised that not every
differentiation of treatment will constitute discrimination, if the criteria for such
differentiation are reasonable and objective and if the aim is to achieve a purpose which is
legitimate under the Covenant.`17
The proposed amendments in this Bill to remove concerns about Schedule 3A`s consistency
with UNCLOS may limit the application of offence provisions and penalty enforcement
action for foreign nationals, ships and carriers for acts or omissions beyond Australia`s
territorial sea (see proposed clauses 44A, 83A and 85 of Schedule 3A to the Act). In this way
the proposed amendments may result in differential enforcement action taken between
Australian nationals and foreign nationals for contravention of Schedule 3A.
As noted above, the objective of the related measures are to ensure that Schedule 3A is
compatible with UNCLOS. To the extent that Australian nationals may be subject to greater
enforcement action than foreign nationals, this is a reasonable objective of ensuring
compliance with Australia`s international obligations. Also, in accordance with the principle
of nationality, Australia has the sovereign right to enforce offence provisions and take civil
enforcement action against its own nationals and foreign nationals regarding Australian
flagged ships in in all Australian waters.
The measures are therefore necessary to ensure that Australia`s enforcement action taken for
contravention of Schedule 3A is consistent with international law. As such the distinctions do
not constitute discrimination on the basis of other status (i.e. nationality), as they are
reasonable and proportionate to the legitimate objective of ensuring Australia complies with
international obligations. Further, Australia has a legitimate sovereign right to take
enforcement action against its own nationals in all Australian waters.
No human rights issues were raised during consultation on the Bill.
Conclusion
The Bill is therefore compatible with human rights and to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate to the objectives of
protecting critical infrastructure of national significance.
16
Gueye v France, Communication No. 196/1985.
17
General Comment No. 18: Non-Discrimination.
21
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
2005 Bill: Telecommunications and Other Legislation Amendment
(Protection of Submarine Cables and Other Measures)
Bill 2005
AAT: Administrative Appeals Tribunal
ACBPS: Australian Customs and Border Protection Service
ACCC: Australian Competition and Consumer Commission
ACMA: Australian Communications and Media Authority
ACMA Report: A report on the five years' operation of Schedule 3A to
the Telecommunications Act 1997, the submarine cable
regime, ACMA, September 2010
Act: Telecommunications Act 1997
ACT: Australian Capital Territory
ADF: Australian Defence Force
ADJR Act: Administrative Decisions (Judicial Review) Act 1977
AFP: Australian Federal Police
AGD Secretary: Secretary of the Attorney-General`s Department
AIA: Acts Interpretation Act 1901
ASIO: Australian Security Intelligence Organisation
ASIO Act: Australian Security Intelligence Organisation Act 1979
Bill: Telecommunications Legislation Amendment
(Submarine Cable Protection) Bill 2013
EEZ: exclusive economic zone of Australia
Environment Minister: Minister responsible for the administration of the
Environment Protection and Biodiversity Conservation
Act 1999
Environment Secretary: Secretary of the Department responsible for the
administration of the Environment Protection and
Biodiversity Conservation Act 1999
22
EPBC Act: Environment Protection and Biodiversity Conservation
Act 1999
LIA: Legislative Instruments Act 2003
Minister: Minister responsible for the Act
Maritime Powers Act: Maritime Powers Act 2013
NOPSEMA: National Offshore Petroleum Safety and Environmental
Management Authority
NOPTA: National Offshore Petroleum Titles Administrator
NT: Northern Territory
Schedule 3A: Schedule 3A to the Act
UNCLOS: United Nations Convention on the Law of the Sea, done
at Montego Bay on 10 December 1982 as set out in
Australian Treaty Series 1994 No. 31.
23
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Telecommunications
Legislation Amendment (Submarine Cable Protection) Act 2013.
Clause 2 - Commencement
Clause 2 of the Bill provides for the commencement of the Bill.
Clauses 1 to 3 of the Bill and any other provisions not covered in the table provided at
subclause 2(1) would commence on the day on which the Bill receives the Royal Assent.
Schedule 1 to the Bill would commence on the day after the Bill receives the Royal Assent.
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or
repealed as set out in that Schedule, and any other item in a Schedule has effect according to
its terms. The Bill has one Schedule that would amend the Act, the ADJR Act and the
ASIO Act.
24
Schedule 1 - Amendments
Part 1 - Amendments
Part 1 of Schedule 1 of the Bill amends Schedule 3A to the Act and makes consequential
amendments to the ADJR Act and the ASIO Act.
Part 1 of Schedule 1 to the Bill implements recommendations of the ACMA Report, as well
as other measures designed to improve the efficiency and effectiveness of the administration
of Schedule 3A.
Administrative Decisions (Judicial Review) Act 1977
Item 1 - After paragraph (daa) of Schedule 1
Item 1 amends Schedule 1 to the ADJR Act by adding a new paragraph to that Schedule.
Schedule 1 to the ADJR Act contains a list of the class of decisions that are not decisions to
which the ADJR Act applies. The proposed amendment will add to this class of decisions,
decisions of the Attorney-General made under proposed clause 57A or proposed clause 72A
of Schedule 3A (which would allow the Attorney-General to issue a direction to the ACMA
not to grant a protection zone installation permit, or a non-protection zone installation permit
respectively - see items 54 and 68).
The reason that availability of judicial review of decisions made under these provisions
would be excluded under the ADJR Act is because these decisions would be made on
grounds of Australia`s security interests. Such decisions are not usually open to judicial
review under the ADJR Act. For example, the ADJR Act exempts decisions made under the
ASIO Act, the Intelligence Services Act 2001, the Telecommunications (Interception) Act
1979 and the Foreign Acquisitions and Takeovers Act 1975 from judicial review on the basis
of their national security or national interest implications.
Paragraph (daa) of Schedule 1 to the ADJR Act also exempts decisions under section 58A
and subsection 581(3) of the Act. The effect of proposed paragraph (daaa) in Schedule 1 of
the ADJR Act is analogous to the ADJR Act process that already applies to section 58A and
subsection 581(3) of the Act, on which proposed clauses 57A and 72A of Schedule 3A are
modelled. As submarine cables are critical infrastructure and of vital importance to
Australia`s economy, it is considered necessary to ensure proposals relating to the
deployment of submarine cables are subject to effective national security scrutiny but
appropriate review provisions apply.
In addition, the ADJR Act mechanism is an expedited judicial review process that cannot
deal effectively with the review of classified material. Judicial review of decisions under
proposed clauses 57A and 72A would still be available under section 39B of the Judiciary
Act 1903 and under section 75(v) of the Constitution.
25
Australian Security Intelligence Organisation Act 1979
Item 2 - Subsection 35(1) (paragraph (d) of the definition of prescribed
administrative action)
Item 3 - Subsection 38A(1)
Existing paragraph (d) of the definition of prescribed administrative action` in
subsection 35(1) of the ASIO Act refers to the exercise of a power under section 58A or
subsection 581(3) of the Act. Item 2 would substitute paragraph (d) to include in that
definition the exercise of a power under proposed clause 57A (see item 54) or proposed
clause 72A (see item 68) of Schedule 3A.
Existing subsection 38A(1) of the ASIO Act provides that section 38A applies in respect of
an adverse or qualified security assessment for the purposes of existing section 58A or
existing subsection 581(3) of the Act. Item 3 would amend subsection 38A(1) to extend the
application of section 38A of the ASIO Act to an adverse or qualified security assessment in
respect of an assessed person for the purposes of proposed clause 57A or 72A of
Schedule 3A. Adverse security assessment` and qualified security assessment` are defined
in section 35 of the ASIO Act.
Part IV of the ASIO Act provides a security assessment function. It provides a mechanism for
security to be considered in certain Government decision-making processes (described as
prescribed administrative actions` in the ASIO Act). Security assessments are a means by
which ASIO provides advice to the relevant Government department and agency decision
makers. Upon making an assessment ASIO may provide:
non-prejudicial advice, which means ASIO has no security-related concerns about the
prescribed administrative action;
a qualified assessment, which generally means that ASIO provides to the agency
concerned information about the subject relevant to security, but is not making a
prejudicial recommendation in relation to the prescribed administrative action; or
an adverse assessment in which ASIO recommends that a prescribed administrative
action be taken or not taken.
In relation to the Act, Part IV currently allows ASIO to provide a security assessment to the
Attorney-General to form the basis of the Attorney-General`s consideration of whether to
exercise his or her powers under section 58A or subsection 581(3) of the Act to direct the
ACMA to not grant a carrier licence.
The purpose of item 3 is to extend the operation of Part IV of the ASIO Act to proposed
clauses 57A and 72A of Schedule 3A in the same manner as Part IV of the ASIO Act
currently applies to existing section 58A and subsection 581(3) of the Act. That is, it is
envisaged that a security assessment would form the basis of consideration by the Attorney-
General whether to exercise his or her powers under proposed clause 57A or 72A to direct the
ACMA to not grant a permit.
In a case where an adverse or qualified security assessment is provided to the Attorney-
General in respect of a person, the person must be notified of the assessment within 14 days
of the assessment being provided to the Attorney-General and be provided with a copy of the
assessment (subsection 38A(2) of the ASIO Act).
26
If the Attorney-General is satisfied that the assessment (which must be attached to the notice
to the person in respect of whom the assessment has been made) contains any matter which,
if disclosed, would be prejudicial to the interests of security, the Attorney-General must
exclude that matter from the copy provided with the notice (subsection 38A(3) of the ASIO
Act).
The purpose of the amendments to sections 35 and 38A of the ASIO Act is to enable a person
(who is the subject of a qualified or adverse security assessment provided to the Attorney-
General) to seek review by the AAT of that assessment.
Where the AAT does not wholly confirm an adverse or qualified security assessment upon
review, subsection 61(1) of the ASIO Act would require the Attorney-General to treat the
AAT`s finding in respect of the assessment as superseding the assessment to the extent that
the finding does not confirm the assessment. As a consequence, in circumstances in which the
Attorney-General`s direction under proposed clause 57A or 72A was based upon an
assessment that was not wholly confirmed by the AAT, the basis for the direction would have
changed and a reconsideration of the decision to issue the direction would necessarily arise.
This might result in the Attorney-General deciding to revoke a direction, or deciding that
there are other national security concerns that mean that the direction should not be revoked
in the circumstances.
Telecommunications Act 1997
Item 4 - Clause 1 of Schedule 3A
Item 5 - Clause 1 of Schedule 3A
To aid the reader, existing clause 1 of Schedule 3A provides a simplified outline of the
operation of the Schedule. The amendments to clause 1 (items 4 and 5) would be
consequential to the substantive amendments that would be made to Schedule 3A.
Item 6 - Subclause 2(1) of Schedule 3A
Item 6 inserts a definition of Attorney-General`s Department` into subclause 2(1) of
Schedule 3A. This is a consequential change to reflect the inclusion of the requirement of the
ACMA to consult with the AGD Secretary in deciding whether to issue a protection zone
installation permit under proposed clause 55A or a non-protection zone installation permit
under new clause 70.
Item 7 - Subclause 2(1) of Schedule 3A
Item 7 inserts a definition of Australian national` into subclause 2(1) of Schedule 3A. This
represents a consequential change due to the insertion of the term foreign national` in
subclause 2(1) by item 13, which uses the definition of an Australian national`. This
proposed definition mirrors the definition of Australian national` in the Maritime Powers
Act.
Item 8 - Subclause 2(1) of Schedule 3A
Item 8 inserts a definition of Australian ship` into subclause 2(1) of Schedule 3A. An
Australian ship` would be defined as a ship other than a foreign ship. The proposed
definition of foreign ship' is discussed in the explanatory note for item 14 below.
27
Item 9 - Subclause 2(1) of Schedule 3A (paragraph (a) of the definition of
Australian waters)
Item 9 makes a minor, consequential change to the definition Australian waters` in
subclause 2(1) of Schedule 3A by deleting the reference to the meaning given under the Seas
and Submerged Lands Act 1973 in respect of the waters of the territorial sea. The reference is
not required because the term territorial sea` already has the same meaning as in the Seas
and Submerged Lands Act 1973 by virtue of section 2B of the AIA (as currently in force).
Item 10 - Subclause 2(1) of Schedule 3A
Item 10 inserts a definition of business day` into subclause 2(1) of Schedule 3A. This
definition appears in existing clause 57 of Schedule 3A. The definition intentionally refers to
a day that the ACMA is open for business in both Victoria and the ACT, because the
ACMA`s offices are located in these jurisdictions. As the ACMA regulates Schedule 3A (e.g.
deciding whether to issue permits), it is appropriate that this definition apply.
Item 11 - Subclause 2(1) of Schedule 3A
Item 11 inserts a definition of Commonwealth regulatory approval`, in relation to submarine
cables, into subclause 2(1) of Schedule 3A. The definition of Commonwealth regulatory
approval` is discussed in the explanatory note for proposed clause 58A of Schedule 3A
(item 55).
The definition is intended to cover any kind of regulatory permission under Commonwealth
law, whether it be called a licence, approval, permit or otherwise. For example, a carrier
seeking to install a submarine cable may need to obtain an approval under Part 9 of the EPBC
Act, as well as a permit under Part 13 of the EPBC Act.
Item 12 - Subclause 2(1) of Schedule 3A
Item 12 inserts a definition of domestic submarine cable` into subclause 2(1) of
Schedule 3A. The definition would clarify that a submarine cable will be a domestic
submarine cable` provided that it is laid for purposes of connecting two or more places in
Australia and in fact connects two or more places in Australia.
The effect of this change is to enable domestic submarine cables (i.e. submarine cables that
connect two places in Australia) to be brought within the scope of Schedule 3A. The reasons
for these amendments are discussed in the explanatory notes for items 20, 29, 47 and 77.
For example, if a cable was laid on or beneath the seabed of the territorial sea of Australia to
connect two points in Australia and a part of the cable ran through international waters but
did not connect with a place outside Australia, the cable would be regarded as a domestic
submarine cable` for the purposes of Schedule 3A.
On the other hand, if a cable or part of a cable, connected a place in Australia with a place
outside Australia, and the cable entered Australia`s territorial sea, then the cable would be
regarded as an international submarine cable`, rather than a domestic submarine cable`.
If a cable connected a place in Australia with an offshore platform, then whether the cable
would be regarded as a domestic submarine cable` or international submarine cable` would
depend on the location of the offshore platform and would be determined on a case-by-case
28
basis. By virtue of the definitions of Australia` and Australian waters` in existing clause 2
of Schedule 3 and section 15B of the AIA, where an offshore platform is located within the
waters of the territorial sea it will be considered a place within Australia. Conversely, where
an offshore platform is located in the waters of the EEZ or the sea above that part of the
continental shelf beyond the limits of the EEZ, it will be considered a place outside Australia.
Item 13 - Subclause 2(1) of Schedule 3A
Item 13 inserts a definition of foreign national` into subclause 2(1) of Schedule 3A. The
definition refers to a person who is not an Australian national (see item 7 above). The
application of Division 4 of Part 2 of Schedule 3A to foreign nationals is discussed in the
explanatory note for proposed new clause 44A at item 41. Similarly, the application of
enforcement action for foreign nationals under Division 4 of Part 3 of Schedule 3A and
offences under existing clause 85 are discussed in the explanatory notes to proposed new
clause 83A and proposed subclauses 85(2) and (3) at items 73 and 79, respectively.
Item 14 - Subclause 2(1) of Schedule 3A
Item 14 inserts a definition of foreign ship` into subclause 2(1) of Schedule 3A. The
definition is the same as that in the Customs Act 1901. The Customs Act 1901 defines a
foreign ship` as a ship that is not an Australian ship. An Australian ship` is defined in the
Customs Act 1901 to be a ship that:
(a) is an Australian ship as defined in the Shipping Registration Act 1981; or
(b) is not registered under the law of a foreign country and is either wholly owned by, or
solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian nationals.
The application of Division 4 of Part 2 of Schedule 3A to foreign ships is discussed in the
explanatory note for proposed clause 44A at item 41.
Item 15 - Subclause 2(1) of Schedule 3A
Item 15 inserts a definition of international submarine cable` into subclause 2(1) of
Schedule 3A. This amendment is consequential to the inclusion of domestic submarine
cables` in Schedule 3A as noted above at item 12.The existing definition of submarine cable`
requires a cable to connect a place in Australia with a place outside Australia.
The new definition of international submarine cable` largely mirrors the existing definition
of submarine cable`. For the sake of clarity, the proposed definition more explicitly refers to
a cable actually landing in Australia. The existing definition of submarine cable` has always
required that a cable be laid for purposes including connecting a place in Australia. Schedule
3A has never captured submarine cables that transit through Australian waters, but which do
not land in Australia. Nevertheless, this amendment is for abundance of caution and to
remove any possible doubt.
29
Item 16 - Subclause 2(1) of Schedule 3A
Item 16 inserts a definition of security` into subclause 2(1) of Schedule 3A. This term is
defined by reference to the meaning in the ASIO Act. The use of this term is explained in the
explanatory notes to proposed clause 58A at item 55.
Item 17 - Subclause 2(1) of Schedule 3A (definition of submarine cable)
As noted above, the existing definition of submarine cable` is for an international submarine
cable and this will continue to be reflected in the proposed definition of international
submarine cable`. Item 17 makes a consequential change by defining the term submarine
cable` in subclause 2(1) to mean:
a domestic submarine cable; or
an international submarine cable.
This amendment is consequential to the Bill extending Schedule 3A`s scope to include, by
the making of regulations, domestic submarine cables.
Item 18 - At the end of clause 2 of Schedule 3A
Item 18 inserts proposed subclauses 2(3) to (5) into Schedule 3A. Proposed subclauses 2(3)
to (5) clarify that a reference to a submarine cable (whether domestic or international)
includes part of the cable. The insertion of this overarching provision:
simplifies the drafting of Schedule 3A, eliminating the need for multiple occurrences
of the phrase a part of a submarine cable` and the part of the cable` at paragraphs
36(1)(b), 36(1)(c), 37(1)(b), 37(1)(d) and 38(a) and (b) of Schedule 3A; and
ensures that the offences for damaging a submarine cable in a protection zone apply to
damage to a part or parts of a submarine cable.
Related consequential amendments proposed in items 32, 33, 35, 36 and 38 would delete the
references to a part of a submarine cable` and the part of the cable` in the existing
paragraphs referred to above.
Item 19 - At the end of Part 1 of Schedule 3A
Item 19 inserts proposed clause 2A into Schedule 3A. By operation of this amendment,
Schedule 3A will apply in all Australian waters, including waters adjacent to a State, the NT,
an island in Australia and all external territories of Australia. This is consistent with the
original intent of the drafting of Schedule 3A.
By virtue of existing paragraph 11(1)(b) of the Act, Schedule 3A relevantly applies in
relation to the following external territories only:
the Territory of Christmas Island; and
the Territory of Cocos (Keeling) Islands.
These specified territories are the only eligible territories` for the purposes of section 10 of
the Act. However, the definition of Australia` in existing subclause 2(1) of Schedule 3A
makes clear that Schedule 3A is intended to cover all external territories of Australia.
30
Therefore, proposed clause 2A has the effect of deeming that for the purposes of
Schedule 3A, the reference to eligible territories` in paragraph 11(1)(b) of the Act is a
reference to each of the external territories of Australia.
Item 19 also inserts proposed clause 2B into Schedule 3A. This item clarifies for the
avoidance of any doubt that it does not matter whether a submarine cable installed in a
protection zone is the particular cable for which a protection zone was originally declared.
This is a consequential amendment to clarify that a protection zone protects all submarine
cables within it, whether at the time of the protection zone`s creation or subsequent to its
creation.
Item 20 - After subclause 4(1) of Schedule 3A
Under existing clause 4 of Schedule 3A, the ACMA has the power to declare (by legislative
instrument) protection zones regarding one or more submarine cables in Australian waters,
subject to Subdivision B of Division 2 of Schedule 3A. Due to the change in the meaning of
submarine cable` described above, clause 4 would extend to domestic submarine cables.
Item 20 amends clause 4 by inserting proposed subclause 4(1A). This proposed subclause
limits the ACMA`s power to declare a protection zone around a domestic submarine cable or
cables by providing that a new protection zone can only be declared for one or more domestic
submarine cables if the cable or cables or the route or routes of the proposed cable or cables
are specified in the regulations by the Governor-General. Item 20 does not limit the ACMA`s
existing powers in relation to international submarine cables.
Currently, Schedule 3A only applies to submarine cables that connect a place in Australia to a
place outside of Australia. However, there may be certain domestic submarine cables that
connect one place in Australia to another place in Australia that have potential economic and
wider importance and, therefore, warrant protection.
To address this issue, proposed subclause 4(1A) would allow the Governor-General to make
regulations designating that a domestic submarine cable or domestic submarine cable route
warrants protection. This would then open the way for the ACMA to be able to declare a
protection zone in relation to the cable or route.
The rationale behind requiring that such a cable or route be specified in the regulations is that
it would provide a mechanism to protect domestic submarine cables if necessary, but also
allow complex stakeholder issues, including affected maritime industries, to be considered by
the executive arm of the Australian Government first through the regulation making process.
It is envisaged that the Minister would consult with applicable government agencies (this
may include Federal government agencies and/or State and Territory government agencies)
and other relevant Ministers before recommending to the Governor-General that a regulation
be made to specify a domestic submarine cable or proposed route.
Item 21 - Subclause 7(2) of Schedule 3A (heading)
Item 22 - Paragraph 7(2)(c) of Schedule 3A
Item 23 - At the end of subclause 7(2) of Schedule 3A
Under existing subclause 7(2) of Schedule 3A, if a person requests the ACMA to declare a
protection zone (known as a proposed protection zone) and the ACMA develops a proposal
31
and declares a protection zone that differs from the proposed protection zone, then the
ACMA must provide that person with a copy of the protection zone declaration.
Item 21 makes a consequential change to the heading of subclause 7(2), by providing a
reference to a request`, rather than a proposal`. Similarly, item 22 updates the reference in
paragraph 7(2)(c) to a requested protection zone`, rather than a proposed protection zone`.
The effect of item 23 would be to provide an additional requirement that the ACMA must
provide reasons to a person in cases where the ACMA has declared a protection zone that is
different to the protection zone the person had requested be declared. This requirement would
ensure the protection zone declaration process is more transparent.
Item 24 - Subparagraphs 9(2)(a)(i) and (4)(a)(ii) of Schedule 3A
Item 24 makes a minor technical amendment to existing clause 9, by substituting the
references to one nautical mile` with 1,852 metres`. The change is necessary because there
are three kinds of nautical miles, and so the existing references may be ambiguous. The
ACMA has confirmed it uses the international nautical mile, and 1,852 metres is the metric
equivalent of one international nautical mile.
Item 25 - At the end of clause 10 of Schedule 3A
Existing clause 10 of Schedule 3A sets out a list of activities which may be prohibited in a
protection zone. Dredging, sand mining, lowering, raising or suspending an anchor from a
ship, and mining or the use of mining techniques are some of the activities that are prohibited
from taking place in a protection zone.
The list of activities also includes, under paragraph 10(4)(g), any activity that involves a
serious risk that an object will connect with the seabed, if a connection between the object
and a submarine cable would be capable of damaging the cable`. The wording of the
paragraph could lead to the unintended consequence that the carrying out of maintenance or
repair activities on a submarine cable located in a protection zone could be prohibited as such
activities may involve an object, such as a grapnel, connecting with the seabed. To clarify
that maintenance or repair activities to submarine cables in a protection zone by, or on behalf
of, a carrier who owns or operates the cables are not prohibited from taking place in the
protection zone, item 25 inserts proposed subclause 10(5) into Schedule 3A. The effect of
proposed subclause 10(5) is that such activities are exempt from being prohibited in
protection zones, and this cannot be overridden by a regulation made by the Governor-
General under paragraph 10(4)(h).
Item 26 - At the end of clause 11 of Schedule 3A
Existing clause 11 of Schedule 3A sets out a list of activities on which restrictions (as
opposed to prohibitions under clause 10) may be imposed in a protection zone. The list of
activities includes installing, maintaining or removing specified cables, pipelines and
associated equipment and any activity that involves a risk that an object will connect with the
seabed, if a connection between the object and a submarine cable would be capable of
damaging the cable. As discussed above in the context of existing clause 10, this could lead
to the unintended consequence that the carrying out of maintenance or repair activities on a
submarine cable inside a protection zone may be restricted.
32
Item 26 inserts proposed subclause 11(4) into Schedule 3A. This item mirrors the effect of
item 25, except that it would clarify, for the avoidance of any doubt, that maintenance or
repair activities are not restricted (rather than prohibited) from taking place in protection
zones.
Item 27 - Clause 17 of Schedule 3A
Under existing clause 17 of Schedule 3A, the ACMA is required to publish a proposal for a
protection zone declaration under clause 15 in each of the following places:
the Gazette;
the ACMA`s website; and
a newspaper circulating in each State, the ACT and the NT and any affected external
Territory.
Item 27 replaces clause 17, by providing that the ACMA would only be required to publish a
proposal developed under clause 15 on its website and invite public submissions. Proposed
subclause 17(3) would require the ACMA to provide a copy of a proposal still under
consideration to a person within 2 business days of receipt of a request. Proposed
subclause 17(4) would clarify that the requirement on the ACMA does not apply if the
ACMA has declared the protection zone, or decided not to declare the protection zone. The
rationale is that in such a case, there is no longer an active proposal. Proposed
subclause 17(5) would allow the ACMA to give a copy of the proposal in electronic form
upon request for the purposes of proposed subclause 17(3) (see the Electronic Transactions
Act 1999 for electronic service of documents). Where the ACMA gives a person a copy of the
proposal by post, subsection 29(1) of the AIA applies for the purposes of proposed
subclause 17(3).
Proposed subclause 17(6) has the effect that the ACMA would not be entitled to charge a
person for requesting a copy of the proposal. The general ability of the ACMA to charge a
person for carrying out administrative functions under the Act (see section 60 of the
Australian Communications and Media Authority Act 2005) would therefore not apply.
Item 27 also inserts proposed clause 17A into Schedule 3A. This proposed clause would
require the ACMA to prepare and publish a summary of a proposal for a protection zone
declaration made under clause 15 in each of the following places:
the Gazette;
the ACMA`s website; and
a newspaper circulating in each State, the ACT and the NT and any affected external
Territory.
Proposed subclause 17A(3) would require a summary of a proposal to specify information on
how a person can access the full proposal on the ACMA`s website, or request a copy of the
full proposal under new subclause 17(3).
These amendments to clause 17 and proposed clause 17A would reduce the cost of
administering Schedule 3A, and at the same time ensure the public continue to have the
opportunity to examine and consider a proposal, as well as make submissions that the ACMA
must have regard to in its decision-making. Any interested party can obtain a copy of the full
proposal from the ACMA`s website, or request a copy of the proposal under proposed
subclause 17(3).
33
It is recognised that requiring a proposal to be published in newspapers in its entirety, as
required under the existing clause 17, represents an administrative cost for the ACMA.
Ultimately, under the existing clause 17, some of the impact of these costs may be passed
through in charges payable by protection zone applicants. The amendments would give effect
to recommendation 2 of the ACMA Report.
Item 28 - Clause 18 of Schedule 3A
Item 29 - At the end of clause 18 of Schedule 3A
Under existing clause 18 of Schedule 3A, the ACMA must not declare a protection zone
around one or more submarine cables unless satisfied that the cable or cables are, or will be,
of national significance.
Item 28 inserts (1)` before the existing provision in clause 18. This is a consequential
amendment to reflect the proposed inclusion of an additional subclause in clause 18
(proposed subclause 18(2)).
Item 29 inserts proposed subclause 18(2) into Schedule 3A. The effect of this proposed
subclause is that a domestic submarine cable or the route of a domestic submarine cable
specified in regulations for the purposes of proposed subclause 4(1A) would be deemed to be
a cable of national significance.
The Explanatory Memorandum for the 2005 Bill, which introduced Schedule 3A, notes that,
Submarine cables of national significance are generally high capacity cables that link
Australia to global communications systems`. This commentary was in the context of
Schedule 3A only applying to international submarine cables. Given that Schedule 3A does
not allow the ACMA to declare protection zones around a cable unless it is satisfied the cable
is, or will be, of national significance, proposed subclause 18(2) would ensure the submarine
cable protection regime under Schedule 3A can be extended to domestic submarine cables or
routes that are declared by regulation.
For the sake of clarity, while the amendments to clause 18 are intended to ensure the ACMA
can declare a protection zone for domestic submarine cables that have been prescribed in the
regulations, the ACMA would retain the discretion whether or not to declare such a zone
under clause 4 of Schedule 3A.
Item 30 - Clause 21 of Schedule 3A
Existing clause 21 of Schedule 3A relates to environment and heritage considerations that the
ACMA must have regard to in deciding whether to declare a protection zone. Item 30
clarifies that the existing reference to paragraph 20(d)` in clause 21 is a reference to
paragraph 20(d) of Schedule 3A`.
Item 31 - Clause 32 of Schedule 3A
Under existing clause 32 of Schedule 3A, the ACMA is required to publish a proposal for
varying or revoking a protection zone under clause 30 in a similar manner prescribed under
existing clause 17 for a proposal under clause 15 (see item 27 above).
Item 31 replaces clause 32, by providing that the ACMA would only be required to publish a
proposal developed under clause 30 in full on its website and invite public submissions.
34
Proposed subclause 32(3) would require the ACMA to provide a copy of a proposal under
consideration to a person within two business days of receipt of a request.
Item 31 also inserts proposed clause 32A into Schedule 3A. This proposed clause would
require the ACMA to prepare and publish a summary of a proposal to vary or revoke the
protection zone in each of the following places:
the Gazette;
the ACMA`s website; and
a newspaper circulating in each State, the ACT and the NT and any affected external
Territory.
The effect of the amendments to clause 32 and proposed clause 32A largely mirror the
amendments to clause 17 and proposed clause 17A and are designed to simplify and reduce
the cost to the ACMA of administering Schedule 3A. The amendments would implement
recommendation 2 of the ACMA Report.
Item 32 - Paragraph 36(1)(b) of Schedule 3A
Item 33 - Paragraph 36(1)(c) of Schedule 3A
Item 34 - Subclause 36(2) of Schedule 3A (note)
Item 35 - Paragraph 37(1)(b) of Schedule 3A
Item 36 - Paragraph 37(1)(d) of Schedule 3A
Item 37 - Subclause 37(2) of Schedule 3A (note)
Item 38 - Paragraphs 38(a) and (b) of Schedule 3A
Item 39 - Subclause 39(2) of Schedule 3A (note)
Item 40 - Subclause 44(2) of Schedule 3A (note)
As explained in the explanatory notes to item 18, to eliminate redundancy and to simplify the
drafting of Schedule 3A proposed subclauses 2(3) to (5) would insert an overarching
provision to provide that a reference to a submarine cable (whether domestic or international)
includes a reference to part of the cable. To eliminate redundancy of phrasing, items 32, 33,
35, 36 and 38 make consequential changes to paragraphs 36(1)(b), 36(1)(c), 37(1)(b),
37(1)(d), and 38(a) and (b) of Schedule 3A, respectively, by removing the references in these
paragraphs to a part of a submarine cable` and the part of the cable`.
To aid the reader, notes are inserted at the end of existing subclauses 36(2), 37(2), 39(2) and
44(2) of Schedule 3A concerning the definition of strict liability` for the purposes of
specified offences in protection zones. Currently, the notes bold and italicise the term strict
liability`, thus denoting that the term is defined in Schedule 3A. Given strict liability` is
defined in the Criminal Code Act 1995 and not in Schedule 3A, items 34, 37, 39 and 40
would make changes to these notes by denoting strict liability` in normal font, without
bolding or italicising it.
Item 41 - At the end of Division 4 of Part 2 of Schedule 3A
The purpose of item 41 is to clarify consistency between Division 4 of Part 2 of Schedule 3A
and Australia`s obligations under UNCLOS.
Under UNCLOS, Australia has jurisdiction of Australian nationals and Australian ships on
any seas, and foreign persons and foreign ships undertaking activities in its territorial sea.
However, Australia cannot regulate foreign nationals and foreign ships in the EEZ or on the
35
continental shelf that is beyond the limits of the EEZ unless it is explicitly authorised or
permitted under UNCLOS.
As drafted, Schedule 3A appears to enable the regulation of the activities of foreign nationals
and ships as well as Australian nationals and ships in the waters of the EEZ and the
continental shelf that are in submarine cable protection zones. Although there may be a
question as to whether these arrangements are fully consistent with UNCLOS, in practice this
has not been an issue as the ACMA would always exercise its powers consistent with
UNCLOS. It should be noted that the existing protection zone declarations are not
inconsistent with UNCLOS as each protection zone declaration explicitly provides that the
declaration applies to the extent that it is consistent with Australia`s jurisdiction under
international law`. However, to provide greater certainty to industry and to ensure Australia
has a best practice` regime it is considered preferable to explicitly clarify which offence
provisions in protection zones under Schedule 3A apply to foreign persons.
Item 41 inserts proposed clause 44A into Division 4 of Part 2 of Schedule 3A to limit the
Division`s application to foreign nationals and foreign ships. The Division sets out the
offences in relation to protection zones, in respect of foreign persons and foreign ships.
This provision, together with the proposed provisions set out in items 73 and 79 (discussed
below), would address recommendation 5 of the ACMA Report.
Foreign nationals - no involvement of ship
Proposed subclause 44A(1) provides that Division 4 of Part 2 of Schedule 3A does not apply
to acts or omissions by a foreign person if certain criteria are met. The criteria set out at
proposed paragraphs 44A(1)(a)-(f) ensures that the operation of Division 4 of Part 2 of
Schedule 3A is fully consistent with Australia`s obligations under the UNCLOS in respect of
its jurisdiction over foreign nationals.
The effect of proposed subclause 44A(1) is that offences in protection zones will generally
not apply to acts or omissions by a foreign person in, on, or beneath the seabed in the waters
of the EEZ of Australia or the continental shelf where the act or omission does not involve a
ship (whether an Australian ship or a foreign ship).
However, this exception to the application of the Division will not apply to activities
undertaken by foreign persons which infringe Australia`s sovereign rights under international
law, including UNCLOS. Pursuant to UNCLOS, Australia has jurisdiction over submarine
cables constructed or used in connection with the exploration of its continental shelf or
exploitation of its resources or the operations of artificial islands, installations and structures
under its jurisdiction. Accordingly, Australia may pass laws and regulations in respect of
submarine cables established for this purpose, or used in connection with this purpose.
Therefore, if a foreign national`s conduct is connected with one of these specified activities in
proposed paragraph 44A(1)(d), (e) or (f), the foreign national may be subject to the offence
provisions in Division 4 of Part 2.
Foreign nationals - involvement of foreign ship
Proposed subclause 44A(2) similarly limits the operation of Division 4 of Part 2 of
Schedule 3A by providing that the offence provisions in the Division do not apply to acts or
omissions by a foreign person where the conduct involves a foreign ship if certain criteria are
36
met. The purpose of this provision is also to ensure consistency between Division 4 of Part 2
and UNCLOS is clearer.
The effect of proposed subclause 44A(2) is that offence provisions in a protection zone will
not apply to acts or omissions of a foreign national where the act or omission does not
involve a foreign ship in the waters of the EEZ, or the sea above that part of the continental
shelf beyond the limits of the EEZ.
Offence provisions will still apply to a foreign national in a protection zone, where the act or
omission involves a foreign ship and relates to one of the specified matters in proposed
paragraph 44A(2)(d), (e) or (f). These provisions are identical to proposed
paragraphs 44A(1)(d), (e) and (f) respectively, as described above. For the sake of clarity,
the exceptions from the application of Division 4 of Part 2 under proposed subclause 44A(2)
do not apply where a foreign national`s conduct involves an Australian ship. In other words,
if a foreign national engages in conduct on board an Australian ship, in waters beyond the
territorial sea of Australia, the offence provisions will apply. This is because under
international law, Australia has jurisdiction over Australian ships on any waters. By way of
further clarification, the exceptions from the application of Division 4 of Part 2 also do not
apply for an Australian national in any circumstances. If an Australian national engages in
conduct in the waters of the EEZ on board a foreign ship, that Australian person is subject to
the offences in that Division.
The reason why proposed clause 44A differentiates situations depending on whether an act or
omission by a foreign national involves a ship, with appropriate exclusions, is because the
objective is to ensure Division 4 of Part 2 can apply as broadly as possible to the extent that
Australia has the ability under UNCLOS to regulate acts or omissions by persons and ships in
Australian waters. The objective of the Bill is to maximise protection of submarine cables to
the greatest extent while being consistent with UNCLOS.
Item 42- Before paragraph 47(2)(a) of Schedule 3A
Item 43 - At the end of subclause 47(2) of Schedule 3A
Item 44 - At the end of clause 47 of Schedule 3A
Existing clause 47 of Schedule 3A requires the ACMA to notify specified authorities as soon
as practicable after declaring, varying or revoking a protection zone under clause 23.
Items 42, 43 and 44 require the ACMA to notify the following additional authorities: the
ACBPS; the ADF; the AFP; NOPSEMA; NOPTA and an authority established by or under a
law of the Commonwealth, a State or Territory specified in a legislative instrument by the
Minister.
The ADF and ACBPS monitor activities of persons and vessels in Australian waters and
Border Protection Command (a joint ACBPS and ADF operation), is currently the emergency
contact for damage or sabotage of submarine cables in Australian waters. The AFP currently
has a range of enforcement powers under the Crimes Act 1914 relevant to Schedule 3A.
Requiring the ACMA to inform these bodies would ensure the relevant authorities involved
in sea monitoring and law enforcement activities are aware of protection zone declarations,
variations and revocations when carrying out their respective activities.
Furthermore because clause 10 restricts the installation, maintenance and removal of oil and
gas pipelines in protection zones, changes to protection zones could affect offshore facilities
and offshore petroleum titles. As NOPSEMA and NOPTA regulate the management of
37
offshore facilities and oversee the register of petroleum and greenhouse gas storage titles,
respectively, the Government considers it appropriate these agencies be informed when the
ACMA declares, varies or revokes a protection zone.
The Maritime Powers Act provides maritime officers with various general enforcement
powers for Commonwealth laws, including the Act. Thus, requiring the ACMA to inform any
other authorities of the Commonwealth, a State or a Territory specified in a legislative
instrument made by the Minister would enable additional maritime officers as defined under
the Maritime Powers Act to be appropriately notified of protection zone declarations,
variations and revocations.
Item 45 - Clause 50 of Schedule 3A
Item 46 - Clause 50 of Schedule 3A
To aid the reader, existing clause 50 of Schedule 3A provides a simplified outline of the
operation of Part 3 of Schedule 3A, which relates to the operation of the installation permit
regime. Items 45 and 46 represent consequential amendments because of the proposed
changes in the Bill to Part 3.
Item 47 - Clause 51 of Schedule 3A
Existing clause 51 of Schedule 3A allows carriers to apply to the ACMA for a permit to
install submarine cables in a protection zone.
Item 47 replaces clause 51 of Schedule 3A. Proposed paragraph 51(1)(a) mirrors existing
clause 51. However, given the proposed amendment to the definition of submarine cables`
would include domestic submarine cables, the effect of proposed paragraph 51(1)(a) would
be to allow carriers to lay a domestic submarine cable or cables in a protection zone.
Another policy objective of the Bill is to streamline the installation permit process. Under the
current permit process, a carrier wishing to lay an international submarine cable that will pass
through both a protection zone and non-protection zone must obtain two permits--a
protection zone permit for the part of the cable that will be in the protection zone and a non-
protection zone permit for the part of the cable that will not be in the protection zone.
Proposed paragraphs 51(1)(b) and (c) would remove this current requirement so that carriers
only need to apply for one permit to install an international submarine cable that passes
through a protection zone and lands in Australia. That is, if part of the proposed cable or
cables will be laid in a protection zone and the other part will be laid in a non-protection
zone, the carrier would only require a single protection zone installation permit for the
installation of the submarine cable or cables in Australian waters.
The reason proposed paragraphs 51(1)(b) and (c) do not include domestic submarine cables is
because Schedule 3A does not prevent carriers from laying a domestic submarine cable in a
non-protection zone. This reflects the long standing treatment of domestic submarine cables.
See also the explanatory notes to clause 64 at items 56 and 57, whereby the non-protection
zone installation permit regime only applies in respect of international submarine cables.
Proposed subclause 51(2) would clarify that it is irrelevant whether the submarine cable or
submarine cables specified in the application for a protection zone installation permit relate to
the cable or cables that the protection zone was declared for. This is a consequential
38
amendment to clarify that submarine cables can be installed in any protection zone, and once
it is installed the cable will be protected.
Item 48 - Clause 52 of Schedule 3A
Item 49 - At the end of clause 52 of Schedule 3A
Existing clause 52 of Schedule 3A sets out the form that a carrier`s application for a
protection zone installation permit under new clause 51 must take.
Item 48 inserts (1)` before the current clause 52 provision. It is a consequential amendment
because of the inclusion of additional subclauses in clause 52 (proposed subclauses 52(2) and
52(3)).
Item 49 inserts proposed subclauses 52(2) and (3) into Schedule 3A. The effect of proposed
subclause 52(2) would be that the approved form must require the applicant provide
information on the proposed route of the submarine cable or cables in Australian waters,
information about ownership and control of the submarine cable, and other relevant
information for the proposed installation. The purpose of this proposed provision is to ensure
the ACMA gathers necessary and relevant information from the beginning of the application
process so that it can monitor cables landing in Australia. Information on the proposed routes
of cables would allow the ACMA to ensure existing cables in protection zones are not
damaged. Information about the ownership and control of submarine cables would ensure the
ACMA has knowledge of the ownership of the proposed cable. This information may be
relevant to the proposed consultation process between the ACMA and the AGD Secretary,
during which the AGD Secretary would have the opportunity to consider AGD portfolio
matters, including security (see the explanatory notes to proposed clauses 55A, 57, 58A, 70,
71 and 73A below at items 51, 54, 55, 63, 65 and 69, respectively).
In relation to proposed paragraph 52(2)(c), to clarify, any other relevant information the
approved form may require the application to set out would be operational in nature and
would be in accordance with Australia`s obligations under UNCLOS.
Proposed subclause 52(3) would provide for a special meaning of control` for the purposes
of proposed subclause 52(2). This non-exhaustive definition would encompass control
resulting from trust structures, agreements, arrangements and understandings. The purpose of
this proposed provision is to ensure that the ACMA can obtain accurate information about
any persons who may own and control a proposed submarine cable. This would overcome the
potential for applicants to structure themselves in such a way as to make it difficult for the
ACMA and AGD to understand which entity, or entities, has or have effective control over
the proposed cable.
Item 50 - After clause 54 of Schedule 3A
Item 50 inserts proposed clause 54A into Schedule 3A. Proposed subclause 54A(1) provides
that if after a carrier applies for a protection zone installation permit under new clause 51 the
carrier becomes aware of a change in circumstances to the proposed installation specified in
the permit application (and before the ACMA has made a decision on the permit application),
the carrier must notify the ACMA of that change as soon as practicable.
The rationale for this proposed provision is that it is recognised that between the time a
permit application is made and the ACMA`s decision on whether to grant a permit there may
39
be changes to the proposed arrangements for the submarine cable installation. For instance,
the route of the proposed submarine cable may be altered. As certain changes may be relevant
to the ACMA`s consideration of an application, it is considered appropriate that the ACMA
be notified of changes of circumstances so that it can properly consider permit applications.
This mechanism is also intended to ensure that carriers provide a thorough and mature permit
application to the ACMA.
Following consideration of a notification by a carrier, proposed subclause 54A(2) requires the
ACMA to decide whether or not the change should be treated as a material change for the
purposes of new clause 58. A decision by the ACMA of whether a change is a material
change in circumstances affects the timeframe for processing the application, as specified in
new clause 58. To aid the reader, a note is inserted that new clause 58 deals with the timing
of the ACMA`s decision on a permit application. As such, proposed clause 54A should be
read in conjunction with proposed subclauses 58(3) and (4) (please see the explanatory notes
to new clause 58 at item 54). The ACMA is required to notify the applicant within 2 business
days of the decision under proposed subclause 54A(2) (see proposed subclause 54A(3)).
Whether a change is material is a decision for the ACMA to make. However, for clarification,
where a change relates to the proposed route of a submarine cable and the change takes the
proposed route outside the allowable deviation set out in proposed clause 58A (see
explanatory notes at item 55), the change would be considered a material change. If the
change keeps the proposed submarine cable route within the allowable deviation, the change
would be considered an immaterial change.
Item 51 - After clause 55 of Schedule 3A
Item 51 inserts proposed clause 55A into Schedule 3A. Schedule 3A currently allows the
ACMA to consult with any person in deciding whether to grant a protection zone permit.
However, there is no requirement for the ACMA to consult the AGD prior to issuing a
protection zone installation permit. Proposed clause 55A would require the ACMA to consult
the AGD Secretary about protection zone installation permit applications.
The purpose of proposed clause 55A is to ensure that Attorney-General portfolio matters,
including international law, native title and national security interests, are considered during
the installation permit application process. The proposed consultation mechanism would
provide the AGD Secretary with the ability to consider and deal with any Attorney-General
portfolio issues, such as security issues, raised by an application for a submarine cable
installation permit.
The proposed consultation mechanism is based on the carrier licence application process set
out in section 56A of the Act, which provides for a similar process between the ACMA and
the AGD. Given that only carriers are permitted to apply for a submarine cable installation
permit, the proposed consultation process would be familiar to industry.
Proposed subclause 55A(1) would require the ACMA to consult with the AGD Secretary
prior to deciding whether to grant or refuse a permit application for a protection zone
installation permit. Whilst not a requirement, proposed subclause 55A(1) would allow the
ACMA to consult any other relevant persons.
40
The rest of proposed clause 55A sets out the proposed consultation mechanism between the
AGD Secretary and the ACMA.
Proposed subclause 55A(2) would require the ACMA to give the AGD Secretary a copy of
any application received within two business days of receipt. It is expected that the ACMA
will provide the AGD Secretary with any additional relevant information it receives about an
application, for example any notifications of changes in circumstances provided by a carrier
under proposed clause 54A. The AGD Secretary would then be required to take one of three
specified actions within 15 business days of receipt of the copy of the application:
Give the ACMA a written notice (proposed paragraph 55A(3)(a)) so that during the
period of the notice the ACMA must not grant the permit (proposed
subclause 55A(4))
Make a submission to the ACMA (proposed paragraph 55A(3)(b)); or
Give the ACMA a written notice stating that he or she does not require any further
consultation on the permit application (proposed paragraph 55A(3)(c)).
If the AGD Secretary gives the ACMA a written notice under proposed paragraph 55A(3)(c),
by virtue of proposed subclause 55A(12) the notice cannot be revoked. This would provide
certainty to the ACMA and the applicant and allow the ACMA to finalise its consideration of
the protection zone permit application, including granting a protection zone permit to the
applicant if it decides to do so.
If the AGD Secretary issues a notice under proposed paragraph 55A(3)(a), the notice would
remain in force for the period specified in the notice. The period specified in the notice must
not be more than three months after the date of the notice (proposed subclauses 55A(5) and
(6)).
In some cases, the AGD Secretary may require a greater period than three months to consider
relevant Attorney-General portfolio matters. Accordingly, proposed subclause 55A(7) would
enable the Secretary to further extend the consultation period by giving another written notice
to the ACMA. A notice of this kind cannot end more than 12 months after the date of the
notice issued under proposed paragraph 55A(3)(a). This means that three notices, each
extending the consultation period by three months, could be issued by the AGD Secretary if
the extension under proposed paragraph 55A(3)(a) had been for a three-month period.
The provision of extended consultation periods will allow any risks that have been identified
by the AGD Secretary to be effectively managed within the installation permit process. For
example, it may be possible for the AGD to work with a permit applicant during this period
to address and mitigate security concerns. This would ensure that the need for the
Attorney-General to exercise the power to issue a direction to the ACMA under proposed
clause 57A (see item 54) would arise only in extreme circumstances, where matters of
concern could not be effectively managed through other mechanisms.
Proposed subclause 55A(8) would clarify for the avoidance of any doubt that the AGD
Secretary may revoke a notice issued under proposed paragraph 55A(3)(a). If the AGD
Secretary revokes a notice, the ACMA would then be able to finalise its consideration of the
protection zone permit application and decide whether to grant a protection zone permit to the
applicant.
41
So that the applicant is kept abreast of the progress of an application, proposed
subclause 55A(9) would require the ACMA to provide the applicant a copy of any notice it
receives from the AGD Secretary under proposed paragraph 55A(3)(a) or proposed
subclause 55A(7) within two business days after the day on which the ACMA receives the
notice.
Proposed subclause 55A(10) would enable the AGD Secretary to make a submission to the
ACMA while a notice issued under proposed paragraph 55A(3)(a) is in force.
Proposed subclause 55A(11) provides that a submission made under proposed
paragraph 55A(3)(b) or proposed subclause 55A(10) may include a recommendation about
the type of permit conditions that should be specified in the permit application (see proposed
paragraph 58A(1)(d) or (e)) or other relevant matters.
For the sake of clarity, while the AGD Secretary is empowered to make submissions and the
ACMA must have regard to those submissions (see the explanatory notes to new clause 57 at
item 54 below), the AGD Secretary would not be required to make submissions and the
ACMA remains the decision maker for permit applications.
Item 52 - Subclause 56(1) of Schedule 3A
Existing subclause 56(1) of Schedule 3A empowers the ACMA to grant a protection zone
installation permit to install a submarine cable in a protection zone.
Item 52 replaces subclause 56(1). These amendments are consequential to the amendments to
new subclause 51(1) which would enable the ACMA to grant a protection zone installation
permit in respect of international submarine cables and domestic submarine cables (see
item 47). New subclause 51(1) would give the ACMA the power to grant a protection zone
installation permit for each of the three scenarios described in new subclause 51(1).
Item 53 - Subclause 56(2) of Schedule 3A
Existing subclause 56(2) of Schedule 3A enables the ACMA to impose conditions that attach
to a protection zone installation permit granted under subclause 56(1).
Item 53 repeals subclause 56(2), as a consequence of the insertion of proposed clause 58A of
Schedule 3A, which would deal with permit conditions (see item 55).
Item 54 - Clauses 57 and 58 of Schedule 3A
Existing clause 57 of Schedule 3A provides that if the ACMA does not grant or refuses to
grant a protection zone installation permit within a specified period, the permit is deemed to
have been refused. Existing clause 58 provides a mechanism for the refund of an application
charge if an application is automatically refused.
Item 54 replaces both of these clauses. Existing clause 57 would be replaced with a proposed
new clause. Proposed new clause 57 would require the ACMA to have regard to the
following matters in deciding whether to grant a protection zone installation permit:
Any submission made by the AGD Secretary under proposed clause 55A; and
Other relevant matters.
42
Item 54 also inserts a proposed additional clause after proposed clause 57. Proposed
clause 57A would allow a protection zone installation permit to be refused on security
grounds. Proposed clause 57A is modeled on existing section 58A of the Act (which allows a
carrier licence application to be refused on security grounds), and existing subsection 581(3)
of the Act (which allows a direction to be given to a carrier or carriage service provider to
cease supplying a carriage service on security grounds).
Under proposed subclause 57A(1), if the Attorney-General, in consultation with the Prime
Minister and the Minister, considers that the grant of a protection zone installation permit to a
particular carrier would be prejudicial to security, the Attorney-General may give a written
direction to the ACMA to not grant a permit to the carrier. Security` is defined in
subclause 2(1) to have the same meaning as the ASIO Act to ensure that the meaning of the
term in the Act is consistent with the ASIO Act. Security` is presently defined in the ASIO
Act to mean:
(a) the protection of, and of the people of, the Commonwealth and the several States and
Territories from:
(i) espionage;
(ii) sabotage;
(iii) politically motivated violence;
(iv) promotion of communal violence;
(v) attacks on Australia`s defence system; or
(vi) acts of foreign interference;
whether directed from, or committed within, Australia or not; and
(aa) the protection of Australia`s territorial and border integrity from serious threats; and
(b) the carrying out of Australia`s responsibilities to any foreign country in relation to a matter
mentioned in any of the subparagraphs of paragraph (a) or the matter mentioned in paragraph
(aa).
Under proposed subclause 57A(2) the ACMA would be required to comply with a direction
given under proposed subclause 57A(1).
The purpose of proposed subclauses 57A(1) and (2) is to ensure submarine cables landing in
Australia are operated in a manner consistent with Australia`s security interests. It is
envisaged this power would only be exercised in extreme cases (as indicated by the
requirement for consultation with the Prime Minister and the Minister) where the risk to
security cannot be managed effectively through other mechanisms. For example, it is
expected that the vast majority of security concerns raised by an application could be dealt
with during the period of consultation between the ACMA and the AGD Secretary (see
proposed clause 55A in item 51), or through the imposition of permit conditions (see
proposed paragraph 58A(1)(d) in item 55). If those concerns could not be addressed and/or a
satisfactory arrangement reached with the applicant, the Attorney-General could be provided
with a security assessment on the permit application with a view to the Attorney-General
considering whether to give the ACMA a direction to refuse to grant a permit to the particular
applicant. Any security assessment would be provided by ASIO.
Review of adverse or qualified security assessment provided to the Attorney-General
The mechanism that exists under Part IV of the ASIO Act to enable review of adverse or
qualified security assessments would apply where the Attorney-General receives an adverse
43
or qualified security assessment in connection with proposed clause 57A of Schedule 3A.
Security assessment`, adverse security assessment` and qualified security assessment` are
defined in section 35 of the ASIO Act.
Under section 38A of the ASIO Act, the Attorney-General would be required to inform the
person (who is the subject of the assessment of the making of the assessment), within 14 days
of receipt of the assessment from ASIO. The person would be able to apply, under Part IV of
the ASIO Act, for review by the AAT of the security assessment.
Where the AAT does not wholly confirm an adverse or qualified security assessment upon
review, subsection 61(1) of the ASIO Act would require the Attorney-General to treat the
AAT`s finding in respect of the assessment as superseding the assessment to the extent that
the finding does not confirm the assessment. As a consequence, in circumstances in which the
Attorney-General`s direction under proposed clause 57A was based upon an assessment that
was not wholly confirmed by the AAT, the basis for the direction would have changed and a
reconsideration of the decision to issue the direction would necessarily arise.
Effect of the Attorney-General's direction
The effect of a direction given by the Attorney-General under proposed clause 57A would be
that the ACMA would halt consideration of the relevant permit application, no matter what
stage of consideration that application has reached.
If an application is pending at the time that the direction is given to the ACMA, the ACMA
would halt its consideration of the application and the application would be refused (proposed
subclause 57A(4)).
Proposed subclause 57A(3) would deal with the situations where the direction is given to the
ACMA, whilst merits review of a non-compulsory decision` by the ACMA is available or in
progress.
Currently under the Act, if the ACMA refuses to grant a protection zone installation permit,
or grants such a permit subject to conditions, the applicant may apply to the ACMA to
reconsider its decision (under paragraph 1(za) of Schedule 4 to the Act). If, on review, the
ACMA again refuses to grant a permit, the applicant may apply to the AAT for review of that
decision.
The effect of the proposed amendment in item 85 would be that merits review will be
available in respect of non-compulsory refusals by the ACMA to grant a permit, where none
of the reasons for a refusal relate to security. A non-compulsory refusal` would be defined in
proposed subclause 57A(5) as a refusal to grant a protection zone installation permit, other
than a refusal that the ACMA must make in compliance with a direction given by the
Attorney-General under proposed clause 57A.
Proposed subclause 57A(3) would therefore provide for the situations where a non-
compulsory refusal is being reconsidered by the ACMA or reviewed by the AAT (or such
review is available to an applicant) and a direction is given by the Attorney-General at that
time to the ACMA to refuse to grant the permit. Proposed subclause 57A(3) would
effectively prevent those review processes from occurring by providing that the ACMA or
the AAT cannot reconsider a non-compulsory refusal to grant a protection zone installation
permit while a direction is in force under proposed subclause 57A(1). This would mean that
44
the reconsideration or review would not proceed, or where the reconsideration or review has
commenced, it must be terminated from the time that the direction is in force. Equally, where
the possibility of applying for review would be available, it would no longer be possible to do
so.
The effect of proposed clause 57A is replicated in proposed clause 72A, which would apply
in respect of non-protection zone installation permit applications being refused on the
grounds of security (see item 68 below).
Timing of protection zone installation permit decision by the ACMA
New clause 58 would set out the processing timeframes for decisions on protection zone
installation permit applications. These amendments would remove the automatic refusal of
protection zone installation permit applications if a decision is not made within a specified
time (see existing clause 57 of Schedule 3A).
The processing timeframe for an application is determined by working out the case in new
clause 58 that applies to the application. The cases reflect the possibilities that, in relation to
any one application, a request for further information may or may not be given by the ACMA
under subclause 55(1), the applicant notifies the ACMA of a change in circumstances relating
to information set out in the application under proposed clause 54A, or a notice under
proposed clause 55A is in force that would extend the time for consultation with the AGD
Secretary.
There are four issues that affect the timeframe for a permit decision described below. For
illustrative purposes four indicative examples are included. Cases 1 and 2 are alternatives for
all permit applications. Cases 3 and 4 may apply in particular circumstances.
Case 1: the ACMA requests further information from the applicant under existing
clause 55(1) (new subclause 58(1))
In a case where the ACMA requests further information from an applicant under
subclause 55(1), the ACMA would be required to take all reasonable steps to make a decision
within 25 business days of receipt of the further information or, at the ACMA`s discretion, a
longer period of up to 35 business days in total. Effectively, the clock does not start` until
information is provided to the satisfaction of the ACMA.
The rationale for allowing the ACMA to extend the guideline timeframe for up to 35 business
days is to allow sufficient time to consult with the AGD Secretary (under proposed
clause 55A) and any other relevant agencies on the permit application.
Case 2: the ACMA does not request further information from the applicant under
existing clause 55(1) (new subclause 58(2))
Where the ACMA does not request further information from the applicant under subclause
55(1), the ACMA would be required to take all reasonable steps to make a decision within 25
business days of receipt of the application or, at the ACMA`s discretion, a longer period of up
to 35 business days in total.
Case 3: the applicant notifies the ACMA of a change in circumstances under
proposed clause 54A (new subclauses 58(3) and 58(4))
45
As noted above in the explanatory notes to proposed clause 54A, if an applicant became
aware of a change in circumstances from that specified in the permit application, the
applicant must notify the ACMA. The ACMA must then decide whether it considers the
change to be a material change in circumstances (see item 50 above).
If the ACMA decides that a change in circumstances should not be taken as material, new
subclause 58(3) would extend the processing timeframes specified in new subclause 58(1) or
(2) by 5 business days. That is, the ACMA would be required to take all steps to make a
decision within 30 business days, or a longer period of up to 40 business days. It is
considered that for minor changes the ACMA may require additional time to process the
application.
If, however, the ACMA decides that the change should be regarded as a material change in
circumstances, new subclause 58(4) would reset the clock` for processing a permit
application. The timeframe in new subclause 58(1) or (2) would be extended by 25 business
days or a longer period of up to 35 business days. The rationale for the timeframe extension is
because if a change in circumstances is considered material the ACMA would need to
effectively consider the proposal afresh. This extension would ensure the ACMA takes into
account all relevant information in making a decision on the permit application.
Case 4: proposed clause 55A notice is in force (new subclause 58(5))
If the AGD Secretary gives a notice to the ACMA under proposed paragraph 55A(3)(a), the
effect of new subclause 58(5) would be to stop the clock` on the timeframe for processing a
permit application. The number of business days in new subclause 58(1) or (2) would be
extended by one business day for each business day in the period during which the notice
remains in force, noting the time limits that apply to such notices (see item 51 above).
Item 55 - Before clause 59 of Schedule 3A
Item 55 would insert proposed clause 58A into Schedule 3A. Proposed clause 58A would set
out the conditions that apply to protection zone installation permits. Existing subclause 56(2)
of the Schedule 3A already gives the ACMA a general power to attach conditions to a
protection zone installation permit. However, proposed clause 58A seeks to codify specific
conditions that would be applicable to all permits. This would ensure the permit process is
more transparent and the process is administratively more efficient. As a consequence of the
insertion of proposed clause 58A, existing subclause 56(2) would be repealed by item 53, as
noted above.
During cable installation inside and outside a protection zone submarine cable operators and
carriers may need to make minor route adjustments due to unforeseen circumstances like
topographical features. Using existing subclause 56(2), the ACMA has taken into account
these practical difficulties by providing allowable deviations for submarine cable routes in all
permits it has issued. The ACMA has applied the same conditions to all permits: that cables
laid in protection zones must be installed within 75metres of the route stated in the permit,
and cables laid outside a protection zone must be installed within 926 metres (half an
international nautical mile) of the route stated in the permit.
To provide carriers and stakeholders with more transparency and to promote administrative
efficiency, proposed paragraphs 58A(1)(a) and (b) would codify the permissible deviation of
route conditions existing in practice so that they apply to all future protection zone
46
installation permits. To ensure there is flexibility, the ACMA would also be able to specify
another permissible deviation distance in a permit (proposed paragraphs 58A(1)(a)(ii) and
58A(1)(b)(ii)) in place of the standard deviation distances set out in proposed
paragraphs 58A(1)(a)(i) and 58A(1)(b)(i).
The reason that the allowable deviation of the route of a submarine cable in a protection zone
is less than the allowable deviation outside a protection zone is because protection zones end
much closer to the shore and tend to be in shallow waters. The accuracy with which a
submarine cable can be laid depends in part on the depth of the water - the shallower the
water the more accurate the installation will be. There may also be greater need to manage
possible congestion issues with other submarine cables in a protection zone.
Proposed paragraph 58A(1)(c) would provide that a protection zone installation permit is
subject to a condition that the carrier, or a person acting on behalf of the carrier, must not
install the cable or cables set out in the permit until all Commonwealth regulatory approvals
have been obtained. This proposed provision clarifies for the avoidance of any doubt, that a
carrier cannot install a cable contrary to the requirements of any relevant Commonwealth
laws. For example, a carrier may be required to obtain approval from the Environment
Minister under the EPBC Act to install a submarine cable due to potential impacts on various
environmental and heritage matters. This proposed amendment makes no change to the
existing legislative framework (i.e. a carrier wishing to install a submarine cable is already
subject to requirements under the EPBC Act and other relevant Commonwealth laws).
Proposed paragraph 58A(1)(d) would clarify that the ACMA may specify conditions relating
to security in a protection zone installation permit. As noted above in the explanatory notes to
proposed clause 55A (see item 51), the AGD Secretary may make a submission to the ACMA
that includes recommendations about the conditions that should be specified in the permit.
For example, the AGD Secretary, in his or her submission, may recommend to the ACMA
that an application should be approved, provided certain conditions relating to security are
included in the permit. For the sake of clarity, the ultimate decision whether to include any
security related conditions in a permit is a decision for the ACMA.
Proposed paragraph 58A(1)(e) would allow the ACMA to specify any other conditions in
respect of relevant cables in a permit. The proposed provision would give the ACMA the
ability to ensure a permit can be tailored to the specific circumstances.
To provide flexibility for changing circumstances, proposed subclause 58A(2) would allow
the ACMA to vary any permit conditions specified in a protection zone installation permit,
other than the requirement to obtain all Commonwealth regulatory approvals. As noted
above, a carrier is already subject to relevant obligations under applicable Commonwealth
laws.
Once the Bill comes into effect, by virtue of existing clause 1 of Schedule 1, section 61 and
subsection 68(1) of the Act, a standard carrier licence condition would be imposed that a
carrier must comply with any applicable conditions under proposed clause 58A. Further,
existing subsection 68(2) of the Act would provide for ancillary contravention provisions if
another person had specified involvement in a contravention of a provision of the Act by a
carrier. Existing subsections 68(1) and (2) are civil penalty provisions for the purposes of
Part31 of the Act (subsection 68(3) of the Act). Existing subsection 570(1) of the Act states
that if the Federal Court is satisfied that a person has contravened a civil penalty provision,
the Court may order the person to pay to the Commonwealth such pecuniary penalty, in
47
respect of each contravention, as the Court determines to be appropriate. The pecuniary
penalty payable under existing subsection 570(1) by a body corporate is not to exceed
$250,000 for each contravention. The pecuniary penalty payable under existing
subsection 570(1) by a person other than a body corporate is not to exceed $50,000 for each
contravention (see subsection 570(3)). Proceedings for the recovery of a pecuniary penalty
under existing section 570 may be commenced by the Minister, the ACCC or the ACMA.
Item 56 - Clause 64 of Schedule 3A (heading)
Item 57 - Clause 64 of Schedule 3A
Existing clause 64 of Schedule 3A provides a mechanism for a carrier to apply to the ACMA
for a permit to install a submarine cable in Australian waters otherwise than in a protection
zone or coastal waters. Such a permit is known as a non-protection zone installation permit`.
Item 56 makes consequential changes to the heading of clause 64, because of the change in
definition of submarine cable` to include international submarine cable` and domestic
submarine cable` in item 17.
Item 57 makes a consequential change to update the reference from submarine cable` to
international submarine cable`. The reason that clause 64 does not apply in respect of
domestic submarine cables is because Schedule 3A as it is currently in force, does not prevent
the installation of domestic submarine cables in non-protection zones. In contrast to
protection zones, the current regime does not restrict or prevent activities from taking place in
waters outside protection zones including the laying of domestic submarine cables. Also, the
current regime`s permit requirements only apply to international submarine cables. Thus,
given at present domestic submarine cables can be installed in non-protection zones without a
permit, the proposed amendments in the Bill would not seek to change this arrangement.
Division 3 of Part 3 of Schedule 3A would therefore only apply where a proposed
international submarine cable will be laid in waters outside protection zones, other than in the
coastal waters of a State or the NT. As noted above in the explanatory notes to proposed
clause 51 at item 47, in a case where an international submarine cable will be laid in both a
protection zone, or in both a protection zone and Australian waters outside a protection zone
(other than coastal waters of a State or the NT), then a carrier would only be required to
obtain a protection zone installation permit. The carrier would no longer be required to obtain
a non-protection zone installation permit as well.
Item 58 - Clause 65 of Schedule 3A
Item 59 - At the end of clause 65 of Schedule 3A
Existing clause 65 of Schedule 3A sets out the form that a carrier`s application for a non-
protection zone installation permit under existing clause 64 must take.
Item 58 would insert (1)` before the existing clause 65 provision. It is a consequential
amendment because of the proposed inclusion of additional subclauses in the clause
(proposed subclauses 65(2) and (3)).
Item 59 inserts proposed subclauses 65(2) and (3) into Schedule 3A. The effect of proposed
subclause 65(2) would be that the approved form must require the applicant to provide
information on the proposed route of the submarine cable or cables in Australian waters,
information about ownership and control of the cable or cables, and other relevant
48
information for the proposed installation. Proposed subclause 65(3) would provide for a
special meaning of control` for the purposes of proposed subclause 65(2).
Item 60 - After clause 67 of Schedule 3A
Item 60 inserts proposed clause 67A into Schedule 3A. Proposed clause 67A provides that
where a carrier becomes aware of a change in circumstances to the proposed installation
specified in a non-protection zone installation permit application (and before the ACMA has
made a decision on the permit application), the carrier must notify the ACMA of that change
as soon as practical.
Item 61 - Subclause 69(1) of Schedule 3A
Existing subclause 69(1) of Schedule 3A empowers the ACMA to grant a non-protection
zone installation permit after it has considered the application and complying with existing
clauses 70 (consultation) and 71 (matters the ACMA must have regard to).
Item 61 replaces subclause 69(1) with a provision that would allow the ACMA to grant a
non-protection zone installation permit after considering the application for the permit.
Item 62 - Subclause 69(2) of Schedule 3A
Existing subclause 69(2) of Schedule 3A provides the ACMA with a general power to attach
conditions to a non-protection zone installation permit granted under existing clause 64.
Item 55 repeals subclause 69(2) as a consequence of the insertion of proposed clause 73A,
which would deal with non-protection zone installation permit conditions (see item 69).
Item 63 - Clause 70 of Schedule 3A
Existing clause 70 of Schedule 3A provides that the ACMA must consult with the
Environment Secretary before it grants a non-protection zone installation permit. Existing
clause 70 also allows the ACMA to consult any other persons it considers relevant.
Item 63 replaces clause 70 with two key objectives.
First, the ACMA would no longer be required to consult with the Environment Secretary. The
EPBC Act, administered by the Environment Minister, already regulates environmental and
heritage aspects of proposed submarine cable installations. As such, the existing requirement
for the ACMA to consult the Environment Secretary is duplicative and may unnecessarily
delay the permit decision process. However, the Bill would clarify that it is a condition of all
installation permits that a carrier holding the permit, or a person acting on behalf of the
carrier, must obtain all necessary Commonwealth regulatory approvals before it can install
the submarine cable or cables (see item 69). The proposed requirement would include
obtaining all necessary regulatory approvals from the Environment Minister.
Second, new clause 70 would require the ACMA to consult with the AGD Secretary before
making a decision on a non-protection zone installation permit application. This provision
would mirror the effect of proposed clause 55A, except that it would relate to a non-
protection zone installation permit (see explanatory notes to item 51). Under proposed
paragraph 71(aa) of Schedule 3A, the ACMA would be required to consider submissions
made, including in respect of Australia`s security interests, by the AGD Secretary in making
49
a decision about a permit (see item 65 below). Proposed clause 70 would also allow the
ACMA to consult other persons it considers relevant.
Item 64 - Clause 71 of Schedule 3A (heading)
Item 66 - After paragraph 71(a) of Schedule 3A
Existing clause 71 of Schedule 3A provides that the ACMA must have regard to specified
matters before deciding whether to grant a non-protection zone installation permit.
Item 64 makes a consequential change to the heading of clause 71 to reflect the fact that the
ACMA must have regard to the matters listed in the clause when it is making a decision
about a permit.
Item 65 inserts proposed paragraph 71(aa) into Schedule 3A. As noted in item 61, new
clause 70 would require the ACMA to consult with the AGD Secretary on non-protection
zone installation permit applications. During the proposed consultation process, the AGD
Secretary may make a submission to the ACMA. If the AGD Secretary does make a
submission on an application, proposed paragraph 71(aa) would require the ACMA to
consider the submission in making its final decision on whether to grant a permit.
Item 66 - Paragraph 71(b) of Schedule 3A
Item 67 - Clause 72 of Schedule 3A
Existing paragraph 71(b) and clause 72 of Schedule 3A require the ACMA to consider
environmental and heritage considerations when making a decision on a permit application.
Items 66 and 67 repeal these provisions as a consequence of the proposed repeal of existing
clause 70. Submarine cable installations are already subject to requirements under the EPBC
Act concerning environmental and heritage impacts. As such, the requirements under existing
paragraph 71(b) and clause 72 unnecessarily duplicate existing processes.
Item 68 - Clause 73 Schedule 3A
Item 68 inserts proposed clause 72A and replaces existing clause 73 with new clause 73.
Proposed clause 72A would allow the Attorney-General, after consulting with the Prime
Minister and the Minister, to direct the ACMA not to grant a non-protection zone installation
permit if he or she considers granting a permit would be prejudicial to security. Proposed
clause 72A is modelled on the existing carrier licence application provisions in the Act. The
proposed provision mirrors the effect of proposed clause 57A, except it relates to refusal of a
non-protection zone installation permit, rather than a protection zone installation permit.
Accordingly, see the explanatory notes to item 54 above for an explanation of the proposed
provision.
Existing clause 73 of Schedule 3A provides time limits on the ACMA`s decision to grant or
refuse an application for a non-protection zone installation permit. The default time limit is
180 days from the application is made, with the ACMA having discretion to extend this
period by 90 days to a total of 270 days.
A number of industry submissions to the ACMA`s review of Schedule 3A commented that
the processing timeframe for non-protection zone installation permit applications is too long.
The length of the current time limit can disrupt submarine cable planning and operational
50
activities, and has the potential to add to financial risk for submarine cable operators. As
such, new clause 73 would reduce the processing timeframe for non-protection zone
installation permit applications as explained below.
New clause 73 would provide the processing timeframes for decisions on non-protection zone
installation permit applications. These amendments are intended to facilitate more efficient
processing of applications by reducing the processing timeframe for permit applications.
The processing timeframe for an application is determined by working out the case in new
clause 73 that applies to a permit application. The cases reflect the possibilities that, in
relation to any one application, a request for further information may or may not be given by
the ACMA under existing clause 68, the applicant notifies the ACMA of a change in
circumstances relating to information set out in the application under proposed clause 67A, or
a notice under new clause 70 is in force that would extend the time for consultation with the
AGD Secretary.
For illustrative purposes, four indicative examples are set out below.
Case 1: the ACMA requests further information from the applicant under existing
subclause 68(1) (new subclause 73(1))
In a case where the ACMA seeks further information from the applicant under
subclause 68(1), new subclause 73(1) would require the ACMA to take all reasonable steps to
make a decision within 60 business days of receipt of the information or, at the ACMA`s
discretion, a longer period of up to 90 business days in total. Effectively, the clock does not
start` until the information is provided to the ACMA`s satisfaction.
The rationale for allowing the ACMA to extend the guideline timeframe for up to 90 business
days in total is to allow sufficient time to consult with the AGD Secretary (under new
clause 70) and any other relevant agencies on the permit application.
Case 2: the ACMA does not request further information from the applicant under
existing subclause 68(1) (new subclause 73(2))
Where the ACMA does not request further information from the applicant under
subclause 68(1), the ACMA would be required to take all reasonable steps to make a decision
within 60 business days of receipt of the application or, at the ACMA`s discretion, a longer
period of up to 90 business days in total.
Case 3: the applicant notifies the ACMA of a change in circumstances under
proposed clause 67A (new subclauses 70(3) and 70(4))
Under proposed clause 67A, an applicant must notify the ACMA if it becomes aware of a
change in circumstances from that specified in its permit application. The ACMA must then
decide whether the change should be considered a material change in circumstances (see
item 60).
If the ACMA decides a change in circumstances should not be considered material, proposed
subclause 73(3) would extend the processing timeframes specified in new subclause 73(1) or
(2) by 5 business days. That is, the ACMA would be required to take all reasonable steps to
make a decision within 65 business days or, at the ACMA`s discretion, a longer period of up
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to 95 business days. If there is a minor change to the details in an application, the ACMA
may require some additional time to process the application.
If the ACMA decides a change in circumstances should be regarded as material, new
subclause 73(4) would reset the clock` for processing a permit application. The timeframe in
new subclause 73(1) or (2) would be extended by 60 business days or, at the ACMA`s
discretion, a longer period of up to 90 business days. The rationale for this is because if a
change in circumstances is considered to be material, the ACMA would need to effectively
consider the proposal afresh. The timeframe extension would ensure the ACMA takes into
account all relevant information in making a decision on the permit application.
Case 4: new clause 70 notice is in force (new subclause 73(5))
If the AGD Secretary gives a notice to the ACMA under proposed paragraph 70(3)(a), the
effect of proposed subclause 73(5) would be to stop the clock` on the timeframe for
processing a permit application. The timeframe in proposed subclause 73(1) or (2) would be
extended by one business day for each business day in the period during which the notice
remains in force.
The timeframes for consideration of non-protection zone installation permit applications in
new clause 73 need to be longer than the timeframes for consideration of protection zone
installation permit applications in new clause 58. This is because the ACMA must have
regard to more matters when considering non-protection zone permit applications (see
matters listed in clause 71). In contrast, in relation to protection zone permit applications
these additional matters would have already been considered by the ACMA when it declared
the protection zone.
Item 69 - Before clause 74 of Schedule 3A
Item 69 would insert proposed clause 73A into Schedule 3A. Proposed clause 73A would set
out the conditions that would apply to non-protection zone installation permits. This proposed
clause mirrors proposed clause 58A, except that it relates to conditions for a non-protection
zone installation permit, and there is no condition relating to an allowable deviation of route
in a protection zone. This is because non-protection zone installation permits will not apply to
cables that will pass through a protection zone. See the explanatory notes to proposed
clause 58A at item 55 for an explanation of the proposed conditions.
As a consequence of the insertion of proposed clause 73A, existing subclause 69(2) would be
repealed, as noted in item 62.
Item 70 - Clause 78 of Schedule 3A
Item 71 - Clause 78 of Schedule 3A
Item 72 - At the end of clause 78 of Schedule 3A
Existing clause 78 of Schedule 3A is an application provision for conditions applicable to the
installation of a submarine cable in a protection zone or in Australian waters (other than
coastal waters) under Division 4 of Part 3 of Schedule 3A.
Item 70 inserts a (1)` before the existing clause 78 provision. This is a consequential change
to reflect the proposed insertion of an additional subclause in existing clause 78 (proposed
subclause 78(2)).
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As noted above, under Schedule 3A as currently drafted, the regime only covers submarine
cables that connect Australia to another place outside Australia and so a reference to a
submarine cable` is a reference to the proposed term international submarine cable`. Item 71
would amend the reference to a submarine cable` in the existing clause 78 provision to an
international submarine cable`. The effect would be that Division 4 of Part 3 of Schedule 3A
continues to apply to the installation of international submarine cables in protection zones
and in waters outside a protection zone (other than coastal waters of a State or the NT).
Item 72 inserts proposed subclause 78(2) into Schedule 3A. The proposed subclause would
provide that Division 4 of Part 3 of Schedule 3A also applies to the installation of domestic
submarine cables in a protection zone. The current regime does not prevent the installation of
domestic submarine cables in non-protection zones. The Bill does not seek to change this.
Given domestic submarine cables can be installed in non-protection zones without a permit,
the Bill would not seek to apply the conditions in Division 4 of Part 3 of Schedule 3A to such
cables. To aid the reader, a note is included at the end of proposed subclause 78(2) that a
Code of Practice under subclause 15(1) of Schedule 3 of the Act could impose additional
conditions in relation to an installation of a domestic submarine cable.
Item 73 - At the end of Division 4 of Part 3 of Schedule 3A
Existing Division 4 of Part 3 of Schedule 3A impose statutory conditions on the installation
of a submarine cable in a protection zone or in Australian waters outside a protection zone
(other than in coastal waters of a State or the NT), by or on behalf of a carrier. The conditions
imposed include to do as little damage as practicable (existing clause 79); specified
management of installation activities (existing clause 80); compliance with specified industry
standards (existing clause 81); compliance with international agreements (existing clause 82);
and there is a reserve power for the Governor-General to prescribe additional conditions in
the regulations (existing clause 83).
Existing Division 4 of Part 3 of Schedule 3A applies to all carriers. That is, it appears to
enable the imposition of the statutory conditions on both Australian carriers and carriers that
are foreign nationals installing submarine cables landing in Australia. The Act imposes both
civil and criminal penalties on carriers that breach these statutory conditions.
UNCLOS does not limit Australia`s rights to regulate foreign nationals undertaking activities
inside Australia`s territorial sea. Under UNCLOS, Australia can establish conditions for
submarine cables entering its territory or territorial sea. However, Australia cannot regulate
foreign nationals in the waters of the EEZ or on the continental shelf unless that regulation is
authorised or permitted under UNCLOS.
Given Australia`s jurisdiction over foreign nationals in the waters of the EEZ and on the
continental shelf is limited by UNCLOS, if civil enforcement action was taken against a
carrier that is a foreign national in respect of a breach of a condition of Division 4 of Part 3 of
Schedule 3A there is potential for such action to lead to inconsistency with UNCLOS.
To ensure Schedule 3A`s consistency with UNCLOS is clear, item 73 inserts proposed
clause 83A into Division 4 of Part 3 of Schedule 3A. Proposed clause 83A would require the
Attorney-General`s written consent before certain civil proceedings by the Minister or a
government agency (intended to refer to an agency other than the ACMA, see below) may be
brought against a carrier that is a foreign national for breach of a permit condition beyond
Australia`s territorial sea. While the existing provisions in Division 4 of Part 3 of
53
Schedule 3A have not raised any practical issues to date, this approach would prevent any
unintended consequences arising in other jurisdictions should they use the Australian regime
as a model.
Proposed subclause 83A(1) would require the Attorney-General to give written consent
before an application for an injunction under section 564 of the Act can commence in relation
to a carrier that is a foreign national contravening a condition under Division 4 of Part 3 of
Schedule 3A outside Australia`s territorial sea, where the contravention does not involve an
Australian ship. By virtue of section 15B of the AIA, Australia` is given an extended
meaning to include the waters of the territorial sea of Australia. In other words, the Minister,
the ACMA or the ACCC must obtain prior written consent from the Attorney-General before
applying for an injunction relating to a breach by a carrier that is a foreign national in
Australian waters beyond the territorial sea.
In consenting to the commencement of an application for an injunction, the Attorney-General
would be required under proposed subclause 83A(3) to consider relevant international rights
and obligations, including UNCLOS. This is designed to ensure any enforcement action
against carriers that are foreign nationals is consistent with Australia`s international rights
and obligations.
As noted in the explanatory notes to proposed clause 44A at item 41, Australia can take
enforcement action against foreign nationals for contravention of Schedule 3A where the
contravention involves an Australian ship. Therefore, the Attorney-General`s consent would
not be required for enforcement action to be taken where the contravention involves an
Australian ship.
Proposed subclause 83A(2) similarly would require the Minister, the ACMA or the ACCC to
obtain written consent from the Attorney-General before commencing proceedings to recover
a pecuniary penalty under section 31 of the Act, where a carrier that is a foreign national
contravenes a statutory condition specified in Division 4 of Part 3 of Schedule 3A beyond the
waters of the territorial sea, where the contravention does not involve an Australian ship. If
the contravention involves an Australian ship, the Attorney-General`s written consent would
not be required. The Attorney-General would also need to have regard to UNCLOS in
deciding whether to consent to proceedings being commenced under proposed
subclause 83A(3).
For the sake of clarity, under the Act there are other civil enforcement options available to the
ACMA in respect of contravention by a carrier of a carrier licence condition to comply with
the Act. These additional enforcement options are not available to the Minister or the ACCC.
In respect of contravention of the Act by a carrier, the ACMA is also empowered to:
accept enforceable undertakings under Part 31A;
issue remedial directions under section 69; and
issue formal warnings under section 70.
The reason that the ACMA would not be required to obtain the Attorney-General`s consent
prior to taking such civil enforcement action against a foreign carrier, is because the ACMA
is already required to consider UNCLOS in exercising its powers. Under section 580 of the
Act and item 21 of the Telecommunications (International Conventions) Notification No. 1 of
1997, the ACMA must have regard to UNCLOS in performing its telecommunications
functions and exercising its powers (such as taking civil enforcement action).
54
Accordingly, item 73 would ensure that civil enforcement action for contravention of the
Division would need to be consistent with Australia`s obligations under UNCLOS.
Item 74 - Clause 84 of Schedule 3A (heading)
Item 75 - Paragraph 84(1)(a) of Schedule 3A
Item 76 - Subclause 84(3) of Schedule 3A
Existing clause 84 of Schedule 3A provides for offences for installing a submarine cable`
without a permit under Part 3 of Schedule 3A. As noted above, under the existing framework,
the reference to a submarine cable` is a reference to an international submarine cable`.
Items 74, 75 and 76 makes consequential amendments to the heading of existing clause 84,
paragraph 84(1)(a) and subclause 84(3) respectively, to update references of submarine
cable` to an international submarine cable`. The effect of these changes is that clause 84
would not apply to domestic submarine cables` (see the insertion of proposed clause 84A at
item 77 below).
Item 77 - After clause 84 of Schedule 3A
Item 77 would insert proposed clause 84A into Schedule 3A. Proposed subclauses 84A(1) to
(3) mirror the effect of clause 84 (as amended), except that they relate to offences for
installing a domestic submarine cable in a protection zone without a protection zone
installation permit under Part 3 of Schedule 3A.
Proposed subclause 84A(4) clarifies that the offences specified in proposed subclause 84A(1)
do not apply to a domestic submarine cable that a person installed, or began to install before
the commencement of proposed clause 84A. In other words, proposed clause 84A applies
prospectively.
Item 78 - Clause 85 of Schedule 3A
Item 79 - At the end of clause 85 of Schedule 3A
Existing clause 85 of Schedule 3A provides that a carrier commits an offence if the carrier
breaches a condition of a permit (whether a protection zone installation permit or a non-
protection zone installation permit).
Item 78 inserts a (1)` before the existing clause 85 provision. This is a consequential change
to reflect the proposed inclusion of additional subclauses in clause 85 (proposed subclauses
85(2) and 85(3)).
As outlined above, the range of conditions that Australia can impose for submarine cables
entering its territorial sea will depend on whether the condition is within Australia`s powers
under UNCLOS. In addition, UNCLOS limits Australia`s jurisdiction over foreign nationals
in the EEZ and on the continental shelf.
Item 79 inserts proposed subclauses 85(2) and (3). The purpose of these provisions is to
ensure that before proceedings can be taken against a carrier that is a foreign national for
breach of a permit condition, the Attorney-General`s written consent must be obtained. In
consenting to the commencement of proceedings, the Attorney-General would be required to
consider relevant international rights and obligations, including UNCLOS.
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Item 80 - Clause 86 of Schedule 3A (heading)
Item 81 - Subclause 86(1) of Schedule 3A
Item 82 - Subclause 86(3) of Schedule 3A
Existing clause 86 of Schedule 3A provides for offences for a carrier failing to comply with
an ACMA direction to remove an unlawfully installed submarine cable`. As noted above,
under the existing framework, the reference to a submarine cable` is a reference to an
international submarine cable`.
Items 80, 81 and 82 make consequential amendments to the heading of clause 86,
subclause 86(1) and subclause 86(3) respectively, to update references of submarine cable`
to an international submarine cable`. The effect of these changes is that clause 86 would not
apply to domestic submarine cables` (see the insertion of proposed clause 86A at item 83
below).
Item 83 - After clause 86 of Schedule 3A
Item 83 inserts proposed clause 86A. Proposed subclauses 86A(1) to (3) mirror the effect of
clause 86 (as amended), except that they relate to offences for failing to comply with an
ACMA direction to remove an unlawfully installed domestic submarine cable in a protection
zone. Consistent with the rule for international submarine cables under existing
subclause 86(3), proposed subclause 86A(3) clarifies that the ACMA may not direct a carrier
to remove an unlawfully installed domestic submarine cable before the commencement of
proposed clause 86A. In other words, proposed clause 86A applies prospectively.
For the sake of clarity, it should be noted that it is already an offence for a person to install a
domestic submarine cable in a protection zone (and permits cannot be obtained allowing for
the installation). While proposed clause 86A would apply prospectively only, the ACMA or
the Minister can pursue existing avenues of recourse if a person installed a domestic
submarine cable in a protection zone under existing Schedule 3A.
Item 84 - Part 5 of Schedule 3A
Existing clause 89 in Part 5 of Schedule 3A provides for a statutory review to be conducted
by the ACMA into the operation of the Schedule within 5 years of the Schedule`s
commencement. The ACMA completed its review of the first five years` operation of
Schedule 3A in September 2010. On 18 November 2010, the Minister tabled the ACMA
Report in Parliament.
As such the provision is spent and item 84 therefore removes clause 89 from Schedule 3A.
As noted above, the ACMA would be required to consult with the AGD Secretary in deciding
whether to grant permits. Item 84 therefore also inserts a proposed replacement clause 89 into
Schedule 3A. New subclause 89(1) would allow the AGD Secretary to delegate any or all of
his or her powers under Schedule 3A to an SES employee, or acting SES employee of AGD.
A delegate would be required to comply with any directions given by the AGD Secretary in
performing any or all of the functions under new subclause 89(2).
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Item 85 - Paragraph 1(za) of Schedule 4
Item 86 - After paragraph 1(za) of Schedule 4
Item 87 - Paragraph 1(zd) of Schedule 4
Item 88 - After paragraph 1(zd) of Schedule 4
Existing sections 555 and 558 of the Act allow an applicant to request reconsideration of
decisions specified in Part 1 of Schedule 4 of the Act. If the ACMA affirms or varies a
decision specified under section 555, then a person may apply to the AAT to review that
decision under section 562 of the Act (i.e. merits review).
Existing paragraph 1(za) of Schedule 4 specifies a decision under clause 56 of Schedule 3A
to refuse to grant a protection zone installation permit, or to grant such a permit subject to
conditions for the purposes of section 555. Item 85 amends paragraph 1(za) so that a decision
by the ACMA under clause 56 to refuse a protection zone installation permit would generally
be subject to internal review and merits review under Part 29 of the Act, except where the
reason or one of the reasons for the decision relates to security.
Item 86 inserts proposed paragraph 1(zaa) into Schedule 4 of the Act. The effect of the
proposed paragraph would be that a decision by the ACMA to specify a condition in a
protection zone permit or to vary a condition of a protection zone permit under proposed
clause 58A would generally be subject to internal review and merits review under Part 29 of
the Act, except where the condition that is specified or varied relates to security (see
proposed paragraph 58A(1)(d) at item 55).
Existing paragraph 1(zd) of Schedule 4 specifies a decision under clause 69 of Schedule 3A
to grant a non-protection zone installation permit, or to grant such a permit subject to
conditions for the purposes of section 555. Section 555 of the Act, as explained above, allows
an applicant to request reconsideration of decisions specified in Part 1 of Schedule 4. Item 87
amends paragraph 1(zd) so that a decision by the ACMA under clause 69 to refuse a non-
protection zone installation permit would generally be subject to review under the Act, except
where the reason or one of the reasons for the decision relates to security.
Item 88 inserts proposed paragraph 1(zda) into Schedule 4 of the Act. This proposed
paragraph mirrors the effect of proposed paragraph 1(zaa) of Schedule 4, except that it relates
to a decision by the ACMA to specify or vary a condition of a non-protection zone
installation permit under proposed clause 73A of Schedule 3A. Any conditions relating to
security that are imposed, or varied for the purposes of proposed paragraph 73A(1)(c) would
not be subject to reconsideration or merits review rights.
Given the inherent importance and sensitivity of security related permit conditions, it is not
considered appropriate for there to be a right to reconsideration by the ACMA or a right to
merits review. The proposed amendments to paragraphs 1(za) and 1(zd) and the proposed
insertion of paragraphs 1(zaa) and 1(zda) in Schedule 4 do not, however, limit any rights to
judicial review that may apply. A person will still have a right to judicial review under
section 5 of the ADJR Act, section 39B of the Judiciary Act 1903 or section 75(v) of the
Constitution.
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Part 2 - Application and transitional provisions
Part 2 of Schedule 1 of the Bill provides for application and transitional provisions for the
amendments specified in Part 1 of Schedule 1 of the Bill.
Item 89 - Application - clause 7 of Schedule 3A to the Telecommunications Act
1997
Item 89 provides that the amendments to clause 7 of Schedule 3A (relating to requested
protection zones) apply only to a request made after commencement of this item (i.e.
items 21, 22 and 23 apply prospectively).
Item 90 - Transitional - clause 10 of Schedule 3A to the Telecommunications
Act 1997
Item 91 - Transitional - clause 11 of Schedule 3A to the Telecommunications
Act 1997
Item 90 applies to any specified prohibited activities in a protection zone under clause 10 of
Schedule 3A in force prior to this item. Consistent with the proposed amendments to
clause 10 by item 25, any specified prohibitions do not apply if they relate to maintenance or
repair of a submarine cable by a carrier, or a person acting on the carrier`s behalf. This item
ensures that vital maintenance and repair activities can be carried out to all declared
protection zones following the transition to the new Schedule 3A regime.
Item 91 mirrors the effect of item 90, except that it relates to the transition to amendments of
clause 11 by item 26, relating to specified restricted activities in a protection zone.
Item 92 - Application - clauses 17 and 17A of Schedule 3A to the
Telecommunications Act 1997
Item 93 - Application - clauses 32 and 32A of Schedule 3A to the
Telecommunications Act 1997
Item 91 provides that the proposed amendments to clause 17 and the insertion of proposed
clause 17A (relating to publishing a proposal and summary to declare a protection zone
respectively) apply only to a proposal developed under clause 15 after the commencement of
this item (i.e. item 27 applies prospectively in respect of a proposal under clause 15). The
purpose of this item is to ensure administrative certainty for the ACMA in what it is required
to publish.
Similarly, item 93 provides that the proposed amendments to clause 32 and the insertion of
proposed clause 32A (relating to publishing a proposal and summary to vary or revoke a
declared protection zone) apply only to a proposal under clause 30 after commencement of
this item (i.e. item 31 applies prospectively).
Item 94 - Application - protection zone installation permit
Item 95 - Application - non-protection zone installation permit
Item 94 applies to an application for and a decision to grant or refuse a protection zone
installation permit under Division 2 of Part 3 of Schedule 3A. This item provides that the
proposed amendments to this Division by the Bill only apply prospectively (i.e. to an
application or decision made following commencement of this item).
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The reasons that this item does not apply to the proposed amendments relating to the
conditions of a protection zone installation permit (items 53 and 55) are because:
any conditions specified under existing subclause 56(2) are taken to be specified
under proposed paragraph 58A(1)(e) by item 97;
the distance-related permit conditions under proposed paragraphs 58A(1)(a) and (b)
apply prospectively by item 100; and
a carrier is already subject to concurrent requirements to obtain all Commonwealth
regulatory approvals, such as under the EPBC Act (proposed paragraph 58A(1)(c)).
Item 95 largely mirrors item 94, except that it relates to an application for, or a decision to
grant or refuse a non-protection zone installation permit under Division 3 of Part 3 of
Schedule 3A.
Item 96 - Transitional - non-protection zone installation permit
Item 96 provides that where a non-protection zone installation permit was granted under
existing subclause 69(1) of Schedule 3A (i.e. prior to commencement of this item and
item 61), then the permit continues to apply after commencement of this item. This
transitional measure is to ensure consistency of installations of submarine cables.
Item 96 also provides that where such a permit was granted once existing subclause 69(1) is
repealed and replaced by item 61, subject to the transitional measures in Part 2 of Schedule
3A, then the permit will also apply.
Item 97 - Transitional - specified conditions of protection zone installation
permit
Item 98 - Transitional - distance-related conditions of protection zone
installation permits
Item 99 - Transitional - specified conditions of non-protection zone
installation permit
Item 100 - Transitional - distance-related conditions of non-protection zone
installation permits
As noted above in the explanatory note to item 94, item 97 deems any conditions specified
for a protection zone installation permit under existing subclause 56(2) to have been made
under proposed paragraph 58A(1)(e), following repeal of subclause 56(2) and
commencement of proposed clause 58A. Item 97 ensures continuity of permit conditions in
the transition to the new permit regime under Schedule 3A by the Bill. Similarly, item 99
deems any conditions specified for a non-protection zone installation permit under existing
subclause 69(2) to have been made under proposed paragraph 73A(1)(e), following repeal of
subclause 69(2) and commencement of proposed clause 73A.
Also as noted above in the explanatory note to item 94, item 98 clarifies that the permissible
deviation of route conditions in proposed paragraphs 58A(1)(a) and (b) would apply
prospectively only. Similarly, item 100 clarifies that the permissible deviation of route in
proposed paragraph 73(1)(a) would also apply prospectively.
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Item 101 - Transitional - submarine cables installed in the offshore areas of
certain external Territories
As noted above in the explanatory note to item 19, proposed clause 2A would clarify that
Schedule 3A applies to waters adjacent to any external territory. That is, Schedule 3A would
apply to the installation of submarine cables in the waters adjacent to external territories.
Item 101 provides that Divisions 4 and 5 of Part 3 of Schedule 3A (relating to conditions
applicable to and offences in relation to installing a submarine cable) do not apply if
installation of the cable began prior to commencement of this item in an offshore area of an
external territory other than:
the Territory of Christmas Island; and
the Territory of Cocos (Keeling) Islands.
This item ensures that the conditions and offence provisions apply prospectively for external
territories that are not eligible territories`, including by clarifying that the application of
Divisions 4 and 5 of Part 3 do not apply for cables installed in non-eligible territories prior to
the commencement of proposed clause 2A.
60