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Tuesday, 9 September 2003
Page: 14644


Senator CHERRY (4:08 PM) —I move Democrat amendment (R1) on sheet 3036:

(R1) Schedule 4, page 10 (after line 3), before item 1, insert:

2 At the end of subclause 27(1) of Schedule 3

Add:

; and (g) where the facility is proposed to be located near a community sensitive site, including residential areas, childcare centres, schools, aged care centres, hospitals, playgrounds and regional icons:

(i) the community has been fully consulted, and wherever possible, has agreed to the facility; and

(ii) alternative less sensitive sites have been considered; and

(iii) the beam of greatest intensity does not fall on any part of an area frequented by the public without agreement of the usual users of that area; and

(iv) efforts have been made to minimise electromagnetic radi-ation exposure to the public.

This particular amendment is a modification of section 27(1) of schedule 3 of the Telecommunications Act. It deals with the circumstances in which the Australian Communications Authority can approve a facilities installation permit. I do not think this provision in the act has actually been used to date, but it is very important, because this is the provision under which the ACA can essentially override state law to approve a mobile phone tower or another telecommunications infrastructure facility.

The Democrats think that it is very important that the law keeps up to date with changing community expectations about what happens with mobile phone towers and the whole general issue of electromagnetic radiation. In the most recent couple of months, we have seen the courts take an increasingly restrictive view of the notion of the exemptions and the protections that telecommunications carriers should have under federal law for the provision of mobile phone towers.

In July we had a major case in the New South Wales Court of Appeal involving Hurstville council at Oatley Park. That particular decision found that an attempt by Hutchison Telecommunications to define an extended low-impact facility as a continuing low-impact facility was inappropriate. The key reasoning for that was their view that exemptions of this particular sort—exemptions from common law, from the tort of trespass and from the whole general planning regime—should be read as narrowly as possible and also to ensure that the community had input on those sorts of decisions. They found against Hutchison in that particular case, and Hurstville council now gets to approve whether that particular mobile phone tower should be stuck in the middle of a community park.

Only last week, the Victorian Supreme Court came down with a similar decision involving the director of public housing in that state. Again it was a question of whether an attempt by Hutchison Telecommunications to expand an existing low-impact facility still stayed within the exemption provided in the act for a low-impact facility. In that case, the Victorian Supreme Court found again that the protections to telcos in the Telecommunications Act should be read narrowly: any overriding of state planning law or common law or the rights of the community should be read as narrowly as possible.

The third development I wanted to refer to concerns how the federal government now treats low-impact facilities, which are essentially towers less than five metres high. For seven years, the Democrats have been campaigning to try to ensure that the government gives the community more say on the siting of mobile phone towers and telecommunications facilities. Finally, last year, the Australian Communications Industry Forum, ACIF, agreed to a new code of practice in relation to the siting of low-impact mobile phone towers. For the first time the new code of practice actually includes an obligation on telecommunications carriers to have regard to the siting of facilities near what are called `community sensitive areas'. Those community sensitive areas are defined as being residential areas, child-care centres, schools, aged care centres, hospitals, playgrounds and regional icons, whatever that means. It is a very important provision because for the first time telecommunications carriers for low-impact facilities—they are the ones which are exempted from state planning laws—now must have regard to the issue of community sensitive facilities. They are required to ensure the community is consulted, that alternative sites are considered and that efforts are made to minimise electromagnetic radiation. The Democrats welcome that. We think that code of practice should have gone much further, but we commend the forum for, after seven years of work, finally coming around to this particular point of view.

What we have are essentially three ways a facility can be approved in this country. The first way is that they can go through as a low-impact facility in which case they are exempted from state planning law. A second way is that they can go through state planning laws and local government authorities, which is a matter for state law, and the third way is that they can apply to the ACA for a facilities installation permit under schedule 3 of the Telecommunications Act. Whilst that third route has not been used, my concern is that that third route may be used, particularly if the increasing recognition at state level and at local government level that communities have rights is enforced by the courts. I would not be surprised to see the telecommunications carriers turning around and seeking to move towards the ACA to override the difficulty of dealing with communities.

That is why it is essential that we update schedule 3 of the Telecommunications Act to ensure that it reflects that changing of community expectations, which is now reflected not just in decisions supporting councils under state law but also in the new code of practice under low-impact facilities. This particular amendment broadly picks up the wording of the ACIF code for low-impact facilities and inserts it into the provisions of the Telecommunications Act to deal with the facilities installation permits for facilities of national significance. As I have said, it is a provision which has not been used to date but it is a provision which sits there, it is an important power that the ACA has and it is essential that when the ACA exercises that power it is up to date with the most modern view of community expectations. The most modern view is that reflected in the ACIF code in respect of low-impact facilities and in the court decisions that we have seen in respect of high-impact facilities. I commend the amendment to the committee.