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A loophole that needs consideration as part of Schedule 3 proposed amendments

Currently, the Federal Government  is looking to amend a number of provisions of Schedule 3 to the Telecommunications Act, the Code of Practice, and the Low Impact Facility Determination (LIFD) – refer to our recent article – Change closer for Telecommunications carriers powers and immunities framework

One of the matters which has been on the table for a while now is whether the minimum timeframe for notification (currently 10 business days) for a Land Access and Activity Notice (LAAN) might be better extended to 20 business days. The government has indicated that any such changes would require a change to Schedule 3 of the Act (cl 17(1)) and as such has deferred this aspect to the second tranche of considerations.  The government has also indicated that these amendments would apply to notices given to all landowners.

Having acted for carriers and landowners alike, we can see the merits of both sides of this topic now on the table for discussion. From the perspective of the carriers, there are likely going to be concerns around potential additional delays, and associated administrative costs and burdens. For the landowners, most would see this as a positive and appreciate the additional time to prepare and negotiate.

However one aspect which does not appear to make its way into the submissions on this point is cl 17(6) exception.

Clause 17(6) of Schedule 3 to the Telecommunications Act states as follows:

(6)  Subclause (1) does not apply if:

  1. the carrier intends to engage in activities under Division 2 (which deals with inspection of land); Division 3 (which deals with installation of facilities); or Division 4 (which deals with maintenance); and
  2. those activities need to be carried out without delay in order to protect:
    (i)  the integrity of a telecommunications network or a facility; or
    (ii)  the health or safety of persons; or
    (iii)  the environment; or
    (iv)  property; or
    (v)  the maintenance of an adequate level of service.

On occasion, we have encountered carriers attempting to circumvent the process of notification which is enshrined in the Act and the Code to undertake maintenance activities by relying on clause 17(6). This thereby negates the need to give the required 10 business days notice and also importantly denies the landowner/occupiers of any right to objection/consultation and ultimately referral to the TIO.

Whilst the need for such a provision is obvious, it appears to be wide open to abuse. So one might reasonably suspect that if the government chooses to extend the carrier minimum notification period, such abuse could become even more widespread in the industry.

Of course there are key words in the clause being the “need” to be carried out, and “without delay”.  These are without doubt key words which give the subparagraphs some context. 

However, from our experience, paragaphs (a) to (e ) can be subject to an amazingly broad interpretation. It may also not surprise the reader to learn that carriers who attempt to rely on this loophole often quote all paras (a) to (e), but rarely if ever give any specifics. 

For instance, what is intended in the wording “adequate level of service”? How open to interpretation is this description and who defines what is adequate? Or, as another example, how broadly can one interpret the “integrity of its network”?

Therefore, we question how the average landowner is ever going to be in a favourable position where carriers rely on these vague restrictions?

Let’s for a moment consider this extreme example. Assume a carrier has acquired a significant new customer with high service needs in a particular area. In order to provide an adequate level of service, the carrier needs to install and have operational a new LIFD base station in the area without delay. So, the carrier simply relies on and quotes cl 17(6) and installs their base station the very next day, providing no notification at all, no installation timeframe, and no opportunity for objection or referral to the TIO by the landowner.

Common sense dictates that there is no wide-open scope to this subclause. But where does it stop? The explanatory notes to the Act imply an emergency situation is required to rely on cl 17(6). Yet, who decides what constitutes an “emergency”? And, who enforces this determination, and what is the penalty for abuse of same?

Currently there is no obligation on the carrier to provide any details of the urgent need, or to outline precisely what is the issue at hand, or what precisely is required to be done to resolve that issue. There seems also to be nothing practically to stop a carrier undertaking other maintenance activities while attending a site to install new equipment that they quoted cl 17(6) to achieve access for, and any landowner who was even made aware of this activity would have little recourse they could depend on.

As such the language of cl 17(6) is far too broad. It is our belief that in order to fairly level the playing field and ensure adequate protections are in place for the landowners, as part of Tranche 2, the government ought to bring in additional provisions (probably within the Code) whereby the carrier must address its bona fides.

At a minimum, carriers should provide notice as soon as reasonably practicable, specify details of the issues causing the problem, and outline what will be done to address the problem. In addition, we struggle to understand why 17(6) references Divisions 2 and 3. In our opinion emergency access should be restricted to applications under Division 4 for maintenance exclusively. Urgent installations or land inspections should be more carefully and separately provisioned to avoid abuse.

It should be noted that currently under the Code, notification doesn’t apply already if in response to a disaster declaration.

We have in fact recently acted for a landowner who was given such a LAAN quoting cl 17(6) and broadly siting integrity of its network and an adequate level of service, etc. They stated there was no need for notification nor objection, yet gave a timeframe just short of the 10 business days for an access window of one month upon which to do the works. Without more detail about the issue requiring this access, we naturally questioned its urgency under the timeframe supplied.