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Monday, 20 June 2005
Page: 73


Mr MURPHY (4:41 PM) —My grievance concerns the construction and location of telecommunications towers within my electorate of Lowe, but it also has relevance right across Australia. As you are aware, Mr Deputy Speaker Adams, the Telecommunications (Low-Impact Facilities) Determination was made in 1997 for the purpose of determining whether certain telecommunications facilities fall within the definition of ‘low impact’. The term ‘low-impact facilities’ defines a range of telecommunications facilities that are likely to have an impact on the amenity of an area. As such, the purpose of the determination is not what one may think—that is, to protect persons from any potential harmful effects of electromagnetic radiation. In short, the determination is an amenity instrument not unlike those environmental factors that are found as prescribed matters for determination for a development application under section 79C of the New South Wales Environmental Planning and Assessment Act 1979.

I wish to raise the issue of environmental impact and the interphase between the Commonwealth and New South Wales state laws that is directly related to this environmental impact. In particular, I raise an issue that I have raised many times in the House in the past: gap analysis in the Commonwealth-state laws interphase. What is being increasingly observed throughout New South Wales is that there is a gap in the effective protection afforded by the combined effects of environmental instruments when the Commonwealth and state laws are read together. In particular, the determination of whether a facility is low impact or not does not overcome the fact that constitutional law precludes a matter being considered by a state or territory government that falls within the purview of Commonwealth law and vice versa.

In this case, when a facility is determined to be a low-impact facility, the effect of this finding places the construction of a low-impact facility outside the purview of the state or territory planning laws, such as the New South Wales Environmental Planning and Assessment Act. This is a matter that has received considerable attention in the states and territories as well as within the various land and environment courts and related jurisdictions. In particular, the issue of whether state or territory planning and related laws may be nonetheless applicable to a facility that is determined to be of low impact is a considerable issue that has received much commentary. When considering the merits of the dual application of both state and territory planning law as well as Commonwealth telecommunications law, it is salient today to review the policy intent of these laws.

Firstly, members of the House will be aware that the policy intent of the Commonwealth Telecommunications (Low-Impact Facilities) Determination is primarily one of ameliorating amenity impacts. The purpose of this determination is not to prevent the effects of harmful long-term determination as one might expect; it is simply to reduce the visual and other aesthetic impacts of the telecommunication facility. When one reads the telecommunications determination, one gets the distinct impression that the legislator’s intent is more concerned about the visual impact—the colour, size and blending in with the surroundings—rather than any potential harmful emissions of radiation or health risks and other related injuries from long-term exposure to radiation.

This in turn raises the broader planning of same and other environmental laws. As members of the House are also aware, environmental laws are largely the purview of the residual constitutional jurisdiction of the states and territories. This residual jurisdiction includes those powers over planning, environment, heritage and other laws directly relevant to the policy objects of the determination. However, to add confusion to this matter, the Howard government has repeatedly made laws which trammel policy areas, which has the effect of making the administration of laws very muddy indeed. In particular, the use of Commonwealth constitutional telecommunications powers for the making of what is ultimately a determination relating to amenity is, I believe, very misplaced legislation.

The issue of amenity is not isolated in the policy bandwidth of environmental law and, for this reason, is better placed in Commonwealth and state environmental and planning laws; so too is the issue of ‘knocking out’ the application of well-established state and territory planning and environmental laws on a constitutional technicality where a facility is determined to be ‘low impact’. This is equally a negative use of Commonwealth law, deliberately designed by administrative construction to exclude the application of state and territory laws for the purpose of regulating these so-called ‘low-impact facilities’ which, but for the Commonwealth telecommunications determination, would be ‘works’ within the meaning of state planning law and, hence, subject to development approval.

Significantly, this is the very purpose of the New South Wales planning law. A critical part of the New South Wales planning law is the application of the precautionary principle, which I have spoken about a number of times in this place and which is enshrined in New South Wales legislation such as the Protection of the Environment Administration Act at section 6. It is legislation such as this which is excluded by a deliberate act of obfuscation in the making of this determination. The precautionary principle states that, where there is a risk of foreseeable, non-negligible risk of harm, then lack of full scientific certainty ought not be used as a pretext to justify the postponement of ameliorative measures to mitigate that harm.

For this reason, I call upon the Commonwealth government to agree that telecommunications towers construction be subject to full planning and development laws of the states and territories such that telecommunications towers be subject to development assessment. In doing so, the long-suffering people of my electorate, and indeed Sydney and right across Australia and elsewhere, who are driven to despair when they see telecommunications and mobile phone towers being constructed literally over their heads will have some redress to fairer and more equitable assessment of the size and location of these notorious towers.

Millions of Australians rely on their mobile phones and need adequate mobile phone coverage. While Commonwealth communications law has recently forced mobile phone companies to at least inform local councils and nearby residents when they install so-called ‘low-impact’ facilities, I believe this does not go far enough. Regardless of assurances from phone companies regarding their safety, local residents and businesses deserve the right to object to the installation of any tower on health or environmental grounds. The government should act to stop mobile phone companies treating local residents with contempt, allow complaints to be heard before these towers appear and force mobile phone companies to co-locate these ‘low-impact’ facilities at every opportunity.