Committee Report Into Access To NBN Corporation Facilities By Emergency Services Released

The Senate Environment and Communication Legislation Committee (‘the Committee’) has released its report into the Telecommunications Legislation Amendment Bill 2018 (Cth) (‘the Bill’) on 10 September 2018. The Bill is for the purpose of requiring National Broadband Network (NBN) corporations such as NBN Co Ltd (NBN Co) to provide emergency services with access to their telecommunications facilities in certain situations, and also to allow the determination and installation of temporary communications facilities under certain conditions. The Committee found that there was a public interest in allowing emergency services access to NBN towers, and recommended that the drafting of the Bill should be strengthened to provide greater certainty as to the achievement of its objectives.

Overview of the Bill

The Bill was introduced on 25 June 2018 by Minister for Communications Mitch Fifield. It proposes to amend the National Broadband Network Companies Act 2011 (Cth) and the Telecommunications Act 1997 (Cth).

The Bill proposes to amend the National Broadband Network Companies Act 2011 (Cth) to require NBN corporations to allow emergency services to access towers and facilities in certain conditions. These emergency services currently have access to carriers’ towers for the purpose of improving their internal communications. However NBN corporations are currently unable to provide access to emergency services due to business restrictions contained in the relevant Act. This Bill aims to rectify that situation by requiring NBN corporations to give access, which includes allowing persons to install, maintain, access and operate equipment

Secondly, this Bill proposes to amend the Telecommunications Act 1997 (Cth) to allow the Minister for Communications to specify a temporary telecommunications tower as a low impact facility in certain situations such as maintenance of coverage over a facility, provision of coverage during events such as concerts or festival and provision of services to emergency services during emergencies or natural disasters.

Committee’s Recommendations

The Committee outlined two specific issues with the Bill:

1. That the amendments related to allowing access to emergency services may not lead to certainty due to drafting issues;
2. That the amendments related to the determination of telecommunications facilities as ‘low-impact facilities’ would lead to practical complications related to the proposed exemption from State and Territory planning laws and regulations, tower heights and application of notification and objection provisions.

In relation to the first issue, the Victorian Emergency Services Telecommunications Authority (ESTA) raised a concern as to whether it was covered by the definition of ‘eligible persons’ in the Bill. ESTA accesses sites on behalf of emergency services in Victoria. The Committee noted that the provisions in the Bill that provide that the Minister may specify classes of persons who would be able to access towers, would allow the Minister ongoing flexibility to address concerns with provision for access.

Additionally, the Queensland Law Society also had concernsthat the current drafting was unreasonably wide and provided little detail or specificity.

In relation to the second issue, the Australian Mobile Telecommunications Association (ATMA) and the Communications Alliance submitted that exemption from state and local government planning requirements would lead to positive outcomes and provide greater certainty to carriers. However the Australian Local Government Association (ALGA) raised serious concerns that the proposed exemptions override planning, safety and consultation provisions, and they only supported exemptions only in the case of emergency situations in order to reduce interference with infrastructure and environmentally significant areas. Local government bodies such as ALGA raised concerns about heritage and environmental protections. Furthermore, ALGA noted that the provisions related to time limitations for temporary facilities were not sufficiently specific as to the definition of place. They argued that due to this omission, carriers may be able to move the temporary facility from one street to another to avoid the impact of the time limitation. This concern was also shared by the Telecommunications Industry Ombudsman (TIO). In addition, the TIO raised concerns about notification and objection processes during non-emergency situations.

In light of the various submissions, the Committee made the following recommendations:

• That there should be more examination and possibly stronger drafting of the Bill to provide greater certainty that carriers will not be able to relocate their temporary facilities to avoid the time limit;
• That there should be more examination and possibly stronger drafting of the Bill to provide greater certainty regarding heritage area protections as well as protections for areas of cultural and environmental significance.

The Committee recommended that the Bill be passed by the Senate.

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Telecommunications Legislation Amendment Bill 2018 (Cth) and explanatory memorandum as published on TimeBase LawOne.

[committee report] The Senate Environment and Communications Legislation Committee, ‘Telecommunications Legislation Amendment Bill 2018,’ September 2018, as published on TimeBase LawOne.