Federal Register of Legislation - Australian Government

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Determinations/Communications as made
Principal Instrument; This determination may be cited as the Telecommunications (Low impact Facilities) Determination 1997.
Administered by: Communications and the Arts
Registered 01 Jan 2005
Tabling HistoryDate
Tabled HR24-Sep-1997
Tabled Senate24-Sep-1997
Gazetted 30 Jun 1997
Date of repeal 02 Mar 2018
Repealed by Telecommunications (Low-impact Facilities) Determination 2018

EXPLANATORY STATEMENT

 

Issued by Authority of the Minister for Communications and the Arts

 

Telecommunications Act 1997

 

Telecommunications (Low-Impact Facilities)

Determination 1997

 

 

Part 1 of Schedule 3 to the Telecommunications Act 1997 (the Act) provides authority for carriers to inspect land, maintain facilities, connect subscribers to an existing network or install any declared ‘low-impact facilities’ or temporary defence facilities.  Other installation of facilities will be regulated under State or Territory law (and also will be subject to some special requirements for environmentally sensitive projects provided for at clause 55).

 

Clause 6 of Schedule 3 to the Act provides that the Minister for Communications and the Arts may, by disallowable instrument, determine a facility to be a ‘low-impact facility’ (see clauses 6(3) to 6(8)).

 

·   The instrument may provide for a particular class of facility to be determined for the purpose of this Part.  For example, a determination could be made by reference to the type of facility, the type of location at which it is installed, whether it is co-located with an existing facility or any other basis of classification.  The fact that a particular type of facility may also be a temporary defence facility or a subscriber connection authorised by the Act does not prevent it also being determined to be a low-impact facility.

 

·   Section 4 of the Acts Interpretation Act 1901 allowed the Minister to make a determination before 1 July 1997 so that the determination was in force when Schedule 3 commenced operation on that date.  It was open to the Minister before 1 July 1997 to direct AUSTEL under s.327(b) of the 1991 Act to inquire into further issues relevant to the making of a determination.

 

On 23 December 1996 the Minister for Communications and the Arts directed AUSTEL to hold a public inquiry into:

 

.    the declaration of facilities to be “low-impact facilities”; and

 

.    matters to be included in a Code of Practice.

 

The new instruments were drafted following the public inquiry by AUSTEL (now the Australian Communications Authority) lasting several months and a short period of public comment on exposure drafts by the Department of Communications and the Arts.

 

The Minister for Communications and the Arts made the Telecommunications (Low-Impact Facilities) Determination 1997 (the Determination) on 29 June 1997, and this instrument came into effect on 1 July 1997.

 

 

Relationship to the Telecommunications Code of Practice 1997

 

Clause 15 of Schedule 3 to the Act provides that the Minister for Communications and the Arts may, by written instrument, make a Code of Practice setting out conditions that are to be complied with by carriers in relation to any or all of the activities covered in Division 2, 3, or 4 (other than activities covered by a facility installation permit).  Subclause 15(2) of Schedule 3 to the Act requires that a carrier comply with the Code of Practice.

 

The list of ‘low-impact telecommunications facilities’ contained in the Determination is regulated under the Code.

 

Overview of the Telecommunications (Low-Impact Facilities)

Determination 1997

 

The Determination contains the list of telecommunications facilities which the Commonwealth will continue to regulate.  The ‘low-impact’ list does not include any aerial cabling nor telecommunications towers, meaning that installation of these new facilities, which have caused the greatest controversy and concern for local communities, are now governed by State and Territory laws.

 

The Determination continues the “zoning of land” approach that was adopted in the Telecommunications National Code 1996.  However the Heritage category has been replaced with an “area of environmental significance” as the “highest” possible “zoning” and a facility installed in this “zone” cannot be a low-impact facility.

 

The Determination has 3 Parts:

 

.        Part 1 contains the citation, commencement, definitions and principal designated use (for the purposes of clarifying the zoning category);

 

.        Part 2 identifies the areas in which a facility may be installed, by reference to zoning arrangements under State and Territory planning laws;

 

.        Part 3 and the Schedule identify the circumstances under which named facilities are to be taken to be “low-impact”.


Detailed notes on the Telecommunications (Low-Impact Facilities) Determination 1997

 

PART 1 - PRELIMINARY

 

This Part deals with the title, commencement, and interpretation of the Determination.

 

Clause 1.1: Citation

 

This provides that the determination may be referred to as the Telecommunications (Low-Impact Facilities) Determination 1997.

 

Clause 1.2: Commencement

 

The determination commences on 1 July 1997.

 

Clause 1.3: Definitions

 

This clause defines terms used in the Determination.  These are principally drawn from the Act, and from previous legislation, including the Telecommunications National Code 1996.  Some key definitions are contained in clause 1.4 (principal designated use), and in Part 2.

 

Clause 1.4: Principal Designated Use

 

Principal designated use (PDU) is a key concept in the Determination.  It is used in Part 2 to determine whether an area in which a facility is to be installed is to be treated as a residential, commercial, industrial or rural area.  In turn, the status of an area in some cases helps determine whether a facility mentioned in the schedule is ‘low-impact’.

 

The clause sets out a procedure which is intended to have the effect of determining one PDU for any given area.  A deterministic procedure is necessary because State and Territory planning laws may vary widely in the way they describe permitted land uses and the effects of those uses.  Some laws, for example, use the term ‘zoning’ while others do not.  Some laws allow multiple uses of land, even where one use predominates.

 

Subclause (1) deals with the most straightforward case - where a planning law describes only one sole, or on its face, principal use.

 

Subclause (2) deals with the next easiest case - where a planning law allows for several uses, but it is possible by examining the law in context to see that one of the uses is somehow preferred over the others.  One example would be an area which was located within a wider area which was clearly being targeted (within the broader context of the planning law) primarily for commercial use, but nevertheless allowed for residential uses.

 

Subclause (3) deals with the situation where it is not possible to glean from the planning law any preferred use among multiple uses of the land - ie all of the potential uses are treated completely equally.  In that case, the subclause sets out a hierarchy by which the PDU is to be determined.  In descending order, these are:

 

·      residential

·      commercial

·      industrial.

 

(Note: if a use cannot be classified as residential, commercial or industrial, then clauses 2.3(2) and 2.4(2) will take over.)

 

Subclause (4) deals with the important issue of timing of PDU.  This may be relevant if the description of land uses changes under a planning law while a carrier is in the process of installing a low-impact facility.  The provision makes it clear that the time when PDU is to be determined is the time at which a carrier proposes to issue the first notice to the owner or occupier of land in the area under Part 5 of the Telecommunications Code of Practice 1997.

 

PART 2 - AREAS

 

In the Schedule, the location of a facility in a particular kind of area can in some cases determine whether or not it is to be regarded as a low-impact facility.  This Part sets out the rules for determining the status of such “areas”.

 

In effect, the Part establishes a hierarchy of such areas which, in descending order of sensitivity are:

 

·      residential

·      commercial

·      industrial

·      rural

 

The Part relies on the concept of “principal designated use” set out in clause 1.4.  The “safety net” provided by subclauses 2.3(2) and 2.4(2) mean that any area must be capable of falling into one of these four categories.

 

There is, however, a further category which can cut across any of these four categories.  If a facility is in area which is an “area of environmental significance” under clause 2.5, then because of subclause 3.1(2), a facility can never be regarded as of “low-impact”, irrespective of its status under clauses 2.1-2.4.

 

Clause 2.1: Commercial area

 

This clause provides that an area is a commercial area if its PDU is for commercial purposes.

 

 

Clause 2.2: Industrial area

 

This clause provides that an area is an industrial area if its PDU is for industrial purposes.

 

Clause 2.3: Residential area

 

Subclause (1) provides that an area is an residential area if its PDU is for residential purposes.

 

Subclause (2) provides that an area which is part of a built-up area is a residential area if it cannot otherwise be described as a commercial, industrial or rural area.  “Built-up area” is a commonly understood planning term.

 

Clause 2.4: Rural area

 

Subclause (1) provides that an area is an rural area if its PDU is for rural purposes.

 

Subclause (2) provides that an area which is not part of a built-up area is a rural area if it cannot otherwise be described as a commercial, industrial or residential area.  “Built-up area” is a commonly understood planning term.

 

Clause 2.5: Area of environmental significance

 

This clause sets out an exhaustive list of the areas which are to be taken as being areas of environmental significance for the purposes of the Determination.  These are

 

·      an area is an area of environmental significance if it is identified property for section 3A of the World Heritage Properties Conservation Act 1983

 

·      an area is an area of environmental significance if it is an identified property (within the meaning of section 3A of the World Heritage Properties Conservation Act 1983)

 

·      an area is an area of environmental significance if it is a place that Australia is required to protect by the terms of a listed international agreement

 

·      an area is an area of environmental significance if it is an area that, under a law of the Commonwealth, or a State or Territory, is reserved wholly or principally for nature conservation purposes (however described)

 

·      an area is an area of environmental significance if it is an area that, under a law of the Commonwealth, or a State or Territory, is protected from significant environmental disturbance

 

·      an area is an area of environmental significance if it is entered in the Register of the National Estate or the Interim List for that Register

 

·      an area is an area of environmental significance if it is registered under a law of a State or a Territory relating to heritage conservation

 

·      an area is an area of environmental significance if it is of particular significance to Aboriginal persons, or Torres Strait Islanders, in accordance with their traditions.

 

PART 3 - LOW-IMPACT FACILITIES

 

This Part sets out the rules for interpreting the Schedule.  The Schedule contains a list of facilities and the circumstances under which they are to be regarded as being “low- impact”.

 

Clause 3.1: Facilities

 

Subclause (1) describes the operation of the Schedule which is a matrix with 2 operative columns.  Column 2 contains a list of facilities.  Column 3 sets out the normal circumstances in which those facilities are to be taken to be low-impact.

 

Subclause (2) sets out the exception to the rules in subclause (1) - which is that if the facility is in an area of environmental significance, then it is not low-impact.

 

Subclause (3) establishes a ‘de minimis’ rule for the dimensions and other measurements set out in the Schedule.  It requires that trivial variations for a facility mentioned in the Schedule are to be ignored.