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Back to "Leasing and Property Newsletter - September 2017"


This is a call: Suggested changes to the telecommunications carrier powers and immunities

Schedule 3 of the Telecommunications Act 1997 (Cth) provides telecommunications carriers with a raft of powers that allow them to install and maintain telecommunication facilities on public and private property. The extent of these powers may surprise some, including allowing carriers to install equipment on property despite the lack of consent of the owners, occupiers or an administrative authority. Schedule 3 also provides an “immunity” against many environmental and planning laws. Telecommunication carriers have recently asked the Australian Government to consider widening the extent of these powers to better enable them to rollout telecommunication infrastructure.

The powers under Schedule 3 include the power for carriers to install facilities, maintain existing facilities and inspect land to determine its suitability for facilities. Before engaging in any of these activities the carrier must provide notice of at least 10 business days to any owner or occupier of the land, however clause 17(5) of the Schedule allows an owner or occupier to waive this right.

Carriers may install telecommunication facilities under Schedule 3 provided they are “low-impact facilities”. Examples of such facilities include small radiocommunication dishes and antennae, underground cabling, cable pits and public payphones. Facilities that are not “low-impact” may be installed under the Schedule if a facility installation permit is issued by the Australian Communications and Media Authority (ACMA). Such permits are issued for facilities that are part of networks that are of “national significance” following a consideration process by ACMA.

Where a carrier enforces its powers under Schedule 3, it must take all reasonable steps to act in accordance with good engineering practice, protect the safety of persons and property, ensure as little interference with the public as possible and to protect the environment. Schedule 3 provides for reasonable compensation for both the acquisition of property by the carrier and for any loss suffered as a result. However, where the amount of compensation cannot be agreed between the parties it is to be determined by the Court (and not mediation or in a tribunal).

The possible amendments suggested by Australian carriers are largely concerned with broadening the definition of low-impact facility. The changes include:

  1. Allowing facilities to be installed in local government heritage overlays or urban conservation maps, provided that the facility is not located on a protected building or area itself;
  2. Including new facilities such as lens antennas as low-impact;
  3. Including “radio shrouds” (features that visually obscure or mask facilities without affecting signals) as ancillary facilities to any low-impact facility;
  4. Increasing the threshold size for radiocommunications and satellite dishes, antennae, solar panels and conduit trenches; and
  5. Allowing certain facilities installed in residential or commercial areas to be low-impact in certain circumstances where previously they were not.

The Australian carriers have argued that these changes are required in order for them to meet the growing consumer need for telecommunication infrastructure that is faster and at a lower cost and to better take in to account shifts in technology such as prevalence of WiFi. They have suggested that the changes will also reduce the burden on administrative agencies in overseeing these regulations.

The Property Council of Australia strongly opposes these changes and argues that the powers given to carriers have been misused. The Council’s Chief Executive Ken Morrison has stated “Telecommunications carriers, with legislative protection, are too often a law unto themselves, show little regard for building owners or other tenants, and pay next to no rent”.

Alex Collie, Lawyer

Paul Carroll, Partner


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