Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Schedule 1—Access to a telecommunications transmission tower owned or operated by an NBN corporation etc.

Schedule 1 Access to a telecommunications transmission tower owned or operated by an NBN corporation etc.

   

National Broadband Network Companies Act 2011

1  Section 5

Insert:

telecommunications transmission tower has the same meaning as in Part 5 of Schedule 1 to the Telecommunications Act 1997 .

2  After Subdivision B of Division 2 of Part 2

Insert:

Subdivision BA Access to a telecommunications transmission tower owned or operated by an NBN corporation etc.

19A   Access to a telecommunications transmission tower

             (1)  If a telecommunications transmission tower (the first tower ) is owned or operated by an NBN corporation, the NBN corporation must, if requested to do so by an eligible person, give the eligible person access to the first tower if:

                     (a)  the access is for the sole purpose of enabling the eligible person to:

                              (i)  install particular equipment on the first tower; or

                             (ii)  maintain, operate or remove particular equipment installed by the eligible person on the first tower; and

                     (b)  in a case where subparagraph (a)(i) applies—the NBN corporation is satisfied that the installation of the equipment is technically feasible; and

                     (c)  in a case where:

                              (i)  subparagraph (a)(i) applies; and

                             (ii)  there is another telecommunications transmission tower in the vicinity of the first tower that is not owned or operated by the NBN corporation;

                            the NBN corporation is reasonably satisfied that it would not be reasonable for the eligible person to install the equipment on the other tower.

Note 1:       For eligible person , see section 19H.

Note 2:       For equipment , see section 19G.

Note 3:       See section 19C (reasonableness).

Exemptions from sections 9, 18 and 19

             (2)  If the NBN corporation gives the eligible person access to the first tower in compliance with subsection (1), sections 9, 18 and 19 do not apply to:

                     (a)  the giving of access; or

                     (b)  the supply to the eligible person of goods that are incidental to the giving of access.

Limits on subsection (1) obligation

             (3)  Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

                     (a)  preventing an NBN corporation from reserving sufficient space on the first tower to be able to meet the NBN corporation’s reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made;

                     (b)  preventing a person (other than an NBN corporation) who has already installed equipment on the first tower from obtaining access to sufficient space on the first tower to be able to meet the person’s reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made;

                     (c)  depriving any person of a protected contractual right.

             (4)  For the purposes of paragraph (3)(c), protected contractual right means a right under a contract that was in force at the commencement of this section.

             (5)  Subsection (1) does not impose an obligation to give an eligible person access to the first tower if:

                     (a)  the eligible person is included in a class of persons specified under paragraph 19H(2)(a); and

                     (b)  the imposition of the obligation would be inconsistent with a limitation or restriction that, under paragraph 19H(2)(b), is applicable to that class.

Exemption from compliance with subsection (1)—Ministerial determination

             (6)  The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied.

Technically feasible

             (7)  For the purposes of this section, in determining whether it is technically feasible to install particular equipment on a telecommunications transmission tower, an NBN corporation must have regard to:

                     (a)  whether the installation of the equipment is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether the installation of the equipment is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

                     (c)  if the installation of the equipment is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the tower; and

                             (ii)  making alterations to the tower; and

                     (d)  such other matters (if any) as are relevant.

             (8)  For the purposes of subsection (7), facility has the same meaning as in the Telecommunications Act 1997 .

19B   Access to the site of a telecommunications transmission tower

             (1)  If:

                     (a)  a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site, and:

                              (i)  the site is owned, occupied or controlled by the NBN corporation; or

                             (ii)  the NBN corporation has a right (whether conditional or unconditional) to use the site; and

                     (b)  the NBN corporation is or was required by subsection 19A(1) to give an eligible person access to the tower for the purpose of enabling the eligible person to:

                              (i)  install particular equipment on the tower; or

                             (ii)  maintain, operate or remove particular equipment installed by the eligible person on the tower;

the NBN corporation must, if requested to do so by the eligible person:

                     (c)  give the eligible person access to the site for the sole purpose of enabling the eligible person to:

                              (i)  install the equipment on the tower; or

                             (ii)  maintain, operate or remove the equipment installed by the eligible person on the tower; and

                     (d)  give the eligible person access to the site for the sole purpose of enabling the eligible person to:

                              (i)  install particular equipment on the site, where that equipment is for use in connection with the equipment mentioned in paragraph (b); or

                             (ii)  maintain, operate or remove the equipment first mentioned in subparagraph (i).

Note 1:       For eligible person , see section 19H.

Note 2:       For site , see section 19J.

Note 3:       For equipment , see section 19G.

Exemptions from sections 9, 18 and 19

             (2)  If the NBN corporation gives the eligible person access to the site in compliance with subsection (1), sections 9, 18 and 19 do not apply to:

                     (a)  the giving of access; or

                     (b)  the supply to the eligible person of goods that are incidental to the giving of access.

Exemption from compliance with subsection (1)—Ministerial determination

             (3)  The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied.

19C   Reasonableness—Ministerial determinations

             (1)  The Minister may, by legislative instrument:

                     (a)  determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken to be reasonable for an eligible person to install equipment on a telecommunications transmission tower; or

                     (b)  determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken not to be reasonable for an eligible person to install equipment on a telecommunications transmission tower.

Note:          For eligible person , see section 19H.

             (2)  A determination under subsection (1) must be an instrument of a legislative character.

19D   Publication of access terms and conditions—towers

             (1)  If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must publish on its website:

                     (a)  the terms and conditions relating to price or a method of ascertaining price; and

                     (b)  other terms and conditions;

on which the NBN corporation offers to:

                     (c)  give an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to:

                              (i)  install particular equipment; or

                             (ii)  maintain, operate or remove particular equipment; and

                     (d)  supply to an eligible person goods that are incidental to the giving of that access.

Note:          For eligible person , see section 19H.

             (2)  If:

                     (a)  a telecommunications transmission tower is owned or operated by an NBN corporation; and

                     (b)  an eligible person requests the NBN corporation to:

                              (i)  give the eligible person access to the tower; or

                             (ii)  supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and

                     (c)  as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and

                     (d)  in accordance with subsection (1), the NBN corporation has published on its website:

                              (i)  the terms and conditions relating to price or a method of ascertaining price; and

                             (ii)  other terms and conditions;

                            on which the NBN corporation offers to give access to the tower or supply the goods, as the case requires; and

                     (e)  the eligible person requests the NBN corporation to enter into an agreement that:

                              (i)  relates to the access to the tower or the supply of the goods, as the case requires; and

                             (ii)  sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (d);

the NBN corporation must comply with the request mentioned in paragraph (e).

             (3)  If:

                     (a)  a telecommunications transmission tower is owned or operated by an NBN corporation; and

                     (b)  an eligible person requests the NBN corporation to:

                              (i)  give the eligible person access to the tower; or

                             (ii)  supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and

                     (c)  as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and

                     (d)  the access to the tower, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person;

the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation’s website, in accordance with subsection (1), at the time when the request was made.

19E   Publication of access terms and conditions—sites

             (1)  If:

                     (a)  a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the NBN corporation; or

                             (ii)  the NBN corporation has a right (whether conditional or unconditional) to use the site;

the NBN corporation must cause to be published on its website:

                     (c)  the terms and conditions relating to price or a method of ascertaining price; and

                     (d)  other terms and conditions;

on which it offers to:

                     (e)  give an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to:

                              (i)  install particular equipment; or

                             (ii)  maintain, operate or remove particular equipment; and

                      (f)  supply to an eligible person goods that are incidental to the giving of that access.

Note 1:       For site , see section 19J.

Note 2:       For eligible person , see section 19H.

             (2)  If:

                     (a)  a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the NBN corporation; or

                             (ii)  the NBN corporation has a right (whether conditional or unconditional) to use the site; and

                     (c)  an eligible person requests the NBN corporation to:

                              (i)  give the eligible person access to the site; or

                             (ii)  supply to the eligible person goods that are incidental to giving the eligible person access to the site; and

                     (d)  as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and

                     (e)  in accordance with subsection (1), the NBN corporation has published on its website:

                              (i)  the terms and conditions relating to price or a method of ascertaining price; and

                             (ii)  other terms and conditions;

                            on which the NBN corporation offers to give access to the site or supply the goods, as the case requires; and

                      (f)  the eligible person requests the NBN corporation to enter into an agreement that:

                              (i)  relates to the access to the site or the supply of the goods, as the case requires; and

                             (ii)  sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (e);

the NBN corporation must comply with the request mentioned in paragraph (f).

             (3)  If:

                     (a)  a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the NBN corporation; or

                             (ii)  the NBN corporation has a right (whether conditional or unconditional) to use the site; and

                     (c)  an eligible person requests the NBN corporation to:

                              (i)  give the eligible person access to the site; or

                             (ii)  supply to the eligible person goods that are incidental to giving the eligible person access to the site; and

                     (d)  as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and

                     (e)  the access to the site, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person;

the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation’s website, in accordance with subsection (1), at the time when the request was made.

19F   Terms and conditions of access to be on a non-discriminatory basis

Telecommunications transmission towers

             (1)  If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must not, in determining:

                     (a)  the terms and conditions relating to price or a method of ascertaining price; and

                     (b)  other terms and conditions;

on which the NBN corporation:

                     (c)  gives an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to:

                              (i)  install particular equipment; or

                             (ii)  maintain, operate or remove particular equipment; and

                     (d)  supplies to an eligible person goods that are incidental to the giving of that access;

discriminate between eligible persons who seek or obtain access in such circumstances.

Note:          For eligible person , see section 19H.

Sites

             (2)  If:

                     (a)  a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and

                     (b)  either:

                              (i)  the site is owned, occupied or controlled by the NBN corporation; or

                             (ii)  the NBN corporation has a right (whether conditional or unconditional) to use the site;

the NBN corporation must not, in determining:

                     (c)  the terms and conditions relating to price or a method of ascertaining price; and

                     (d)  other terms and conditions;

on which the NBN corporation:

                     (e)  gives an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to:

                              (i)  install particular equipment; or

                             (ii)  maintain, operate or remove particular equipment; and

                      (f)  supplies to an eligible person goods that are incidental to the giving of that access;

discriminate between eligible persons who seek or obtain access in such circumstances.

19G   Equipment

             (1)  For the purposes of this Subdivision, equipment means:

                     (a)  a facility (within the meaning of the Telecommunications Act 1997 ); or

                     (b)  an antenna; or

                     (c)  a measuring device; or

                     (d)  an apparatus; or

                     (e)  a thing that belongs to a class of things specified under subsection (2).

             (2)  The Minister may, by legislative instrument, specify one or more classes of things for the purposes of paragraph (1)(e).

19H   Eligible person

             (1)  For the purposes of this Subdivision, eligible person means:

                     (a)  a police force or service; or

                     (b)  a fire service; or

                     (c)  an ambulance service; or

                     (d)  a State or Territory emergency services organisation; or

                     (e)  a person who is included in a class of persons specified under paragraph (2)(a).

             (2)  The Minister may, by legislative instrument, do any or all of the following:

                     (a)  specify one or more classes of persons for the purposes of paragraph (1)(e);

                     (b)  for a class specified under paragraph (a)—declare that one or more specified limitations or restrictions are applicable to that class for the purposes of subsection 19A(5).

             (3)  The Minister must not make a legislative instrument under subsection (2) unless the Minister is satisfied that it is in the public interest to do so.

             (4)  Before making a legislative instrument under subsection (2), the Minister must consult the Minister who administers the Australian Federal Police Act 1979 .

19J   Site

                   For the purposes of this Subdivision, site means:

                     (a)  land; or

                     (b)  a building on land; or

                     (c)  a structure on land.

19K   Goods

                   For the purposes of this Subdivision, goods includes electricity.

3  Section 37

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

4  Subsection 38(2)

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

5  Section 39

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.

6  Section 40

After “19,”, insert “19A, 19B, 19D, 19E, 19F,”.