Legislation & regulation | ACMA

Legislation & regulation

Licensed telecommunications carriers have the power to inspect land to determine whether the land is suitable for the carriers’ purposes; install a facility on the land; and the power to maintain a facility that is situated on the land.

The power to install a facility may only be exercised with respect to certain types of infrastructure, such as a facility defined in the Ministerial Telecommunications (Low-impact facilities) Determination 1997 or a temporary defence facility, or if the carrier holds a Facility Installation Permit (FIP).

Telecommunications Act

The Telecommunications Act 1997 (the Act) restricts carriers installing telecommunications facilities. Previously, they could freely site telecommunications facilities with exemption from state and territory law and, without local council approval. The Act now allows for only specified types of facilities, most commonly low-impact facilities, designed to be unobtrusive, to be installed under Commonwealth legislation. Approval for the majority of telecommunications facilities, including overhead cables and most radiocommunications towers, are now the responsibility of state and territory governments and are usually dealt with by the relevant local government authority.

Low-impact facilities

Carriers can install a limited range of facilities without seeking state, territory or local government planning approval. The most common of these are known as low-impact facilities, specified in the Telecommunications (Low-impact Facilities) Determination 1997 (the Determination) and its amendment of 1999. These facilities include:

  1. small radiocommunications antennae and dishes erected on existing towers or buildings and designed to be unobtrusive

  2. underground and above ground housing

  3. underground cables

  4. public payphones

  5. temporary emergency facilities.

The Determination specifies the maximum dimension of each facility type. For example, a tower not attached to a building and higher than five metres cannot be specified as a low-impact facility, although the addition of antennas may result in the total height of a facility being greater than five metres. One commonly installed low-impact facility is 5.8 metres high. By contrast, mobile phone towers are generally 25 to 30 metres high. In some cases, the colour of a low-impact facility is required to be matched to its background or in a colour agreed by the carrier and the local authority.

The Determination defines where facilities may be installed, based on the zoning of the site as commercial, industrial, residential or rural under state or territory laws. For example, a facility deemed low-impact in a rural or industrial zone may not be low-impact if installed in a residential area. A facility in an area of environmental significance, such as a World Heritage area or an area on the Register of the National Estate, cannot be designated a low-impact facility.

Note: The ACMA has no role in determining whether or not a particular installation is a low-impact facility. Binding determinations as to whether a facility is a low-impact facility are made by courts, typically in response to proceedings commenced by state, territory or local governments.

Carrier conditions

Under the Ministerial Telecommunications Code of Practice 1997 (the Ministerial Code of Practice) carriers must take all reasonable steps to:

  1. cause as little detriment, damage and inconvenience as practicable

  2. ensure land is restored to a condition similar to its condition before the activity began

  3. act in accordance with good engineering practice

  4. protect the safety of persons and property

  5. ensure the design, planning and installation of facilities is in accordance with best practice and complies with ACMA or industry codes or standards

  6. minimise interference with public utilities, roads and paths, traffic and land use

  7. protect the environment.

Carriers must also:

  1. make reasonable efforts to enter into an agreement with public utilities about the installation

  2. comply with industry standards and listed international agreements

  3. provide notice to road authorities and utilities

  4. maintain records about certain facilities

  5. ensure that the design, planning and installation of facilities is in accordance with best practice

  6. comply with the noise limits set out in the relevant state or territory law between 10:00 pm and 7:00am

  7. take all reasonable steps to co-locate facilities with the existing facilities of other carriers or public utilities or use public easements

  8. co-operate with other carriers and public utilities who are undertaking similar activities on the same land to minimise inconvenience and damage

  9. where relevant, notify the Director of National Parks, the Heritage Chairperson or the Environment Secretary of the proposed activity.

Notifying landowners and occupiers

The Ministerial Code of Practice sets out arrangements for carriers to inform land owners or occupiers of proposed installation and the processes that apply to objections to the activity.

Usually, carriers must provide written notice to landowners and occupiers of intention to install a facility at least 10 business days before the activity is to take place. The notice must specify the purpose of the activity; contain a statement advising that compensation may be payable (under clause 42, Schedule 3 of the Act) if a person suffers financial loss or damage because of anything done by the carrier in engaging in the activity; and provide an explanation of the arrangements for making an objection to the activity.

Process objections

The Ministerial Code of Practice sets out timeframes and processes for landowners and occupiers to lodge objections. A carrier must include in a notice to the landowner or occupier a statement explaining the arrangements for making objections to the activity. The arrangements include the allowable reasons for objecting to the installation and the timeframes for lodging the objection to the carrier.

If the objection complies with the objection processes, reasons and timeframes, the carrier must not engage in the low-impact activity unless:

  1. The objection is resolved by an agreement between the carrier and objector.

  2. A request to refer the objection to the Telecommunications Industry Ombudsman is not received by the carrier within the five business days.

  3. The Telecommunications Industry Ombudsman deals with the objection without giving a direction to the carrier, and the Ombudsman informs the carrier in writing of that outcome.

  4. The Telecommunications Industry Ombudsman gives a direction to the carrier.

The ACMA is responsible for ensuring that low-impact facilities are installed according to the Ministerial Code of Practice. Where a carrier has breached the Code of Practice, the ACMA may take enforcement action.

Alternative notification arrangements

Instead of a carrier providing written notice to a landowner in connection with a proposed low-impact facility activity, the Ministerial Code of Practice allows for an alternative notification arrangement (ANA) to be agreed between a landowner and a carrier. Once agreed, a carrier must comply with an ANA and, in some cases, give a copy of it to the ACMA within a specified timeframe.

The table below summarises whether there is a requirement to submit a copy of the ANA to the ACMA for each type of activity specified in the relevant Sections of the Ministerial Code of Practice:

Section

Type of activity

Requirement to submit a copy of the ANA to the ACMA

2.27

Inspection of land*

No

3.43

Subscriber connection*

No

4.28

Low-impact facility*

Yes, within 30 business days of making the agreement

5.18

Temporary defence facility

Yes, before acting under the agreement

6.28

Maintenance of facility*

No

* If the type of activity also includes a notice to the nature conservation director, heritage chairperson or environment secretary, a copy of this ‘notification agreement’ must also be provided to the ACMA within 30 business days after entering into the agreement. (For further information on notification agreements, see the Ministerial Code of Practice: Section 2.18 for inspection of land activity, Section 3.34 for subscriber connection activity, Section 4.19 for low-impact facility activity and Section 6.18 for maintenance of facility activity).

For example, under Section 4.28 of the Ministerial Code of Practice, a carrier may agree to an ANA in writing with the manager of public land (for example, a local council affected by a proposed low-impact facility activity). Once the carrier and manager of public land have agreed to the ANA, the carrier must comply with the ANA and give a copy of it to the ACMA within 30 business days of making the agreement.

Where applicable, a copy of the ANA (and ‘notification agreement’ if an activity includes a notice to the nature conservation director, heritage chairperson or environment secretary) must be sent to the ACMA using the email address: telephone.service.regulation@acma.gov.au.

Once the ACMA receives a copy of the ANA (and notification agreement, if applicable), you’ll be sent an acknowledgement email and these will be added to an existing ACMA Notification Register.

In the event an ANA (or notification agreement) is made, and a carrier does not meet the 30-business day timeframe (if applicable), the ACMA may decide to investigate the matter. If a breach is found, the ACMA has broad discretion to determine what, if any, compliance or enforcement action is appropriate in the circumstances. For example, the ACMA has a range of enforcement options available to it, including:

  • Issuing a formal warning
  • Giving a carrier a remedial direction
  • Accepting an enforceable undertaking
  • Issuing an infringement notice
  • Commencing proceedings in the Federal Court seeking a pecuniary (financial) penalty

Mobile Phone Base Station Deployment industry code

The installation of all mobile phone telecommunications facilities are subject to additional requirements imposed by the industry code C564:2011 Mobile Phone Base Station Deployment (the Industry Code) [PDF].

The Industry Code supplements the regulatory regimes provided under Commonwealth, state, and territory laws. It applies a 'precautionary principle' and other obligations on all carriers with respect to facilities that are installed as low-impact under Commonwealth law and to facilities that are not low-impact and installed with local government development approval. 


Last updated: 20 April 2017