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Telecommunications Amendment (Giving the Community Rights on Phone Towers) Bill 2014

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2013-2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Telecommunications Amendment (Giving the Community Rights on Phone Towers) Bill 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

Circulated by authority of

Andrew Wilkie MP



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications Amendment (Giving the Community Rights on Phone Towers) Bill 2014

This bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

 
   Overview of the Bill 
 
    
 
  This Bill seeks to create rights for the community by placing restrictions and conditions on the erection of both new phone towers and extensions to existing infrastructure. 
 
    
 
   Human rights implications 
 
    
 
  The right to own property and have reasonable control of it is guaranteed under Article 17 of the International Declaration of Human Rights. The right to reasonable use and enjoyment of private property is well established under the common law of Australia. While the specific interests protected are not universally agreed, there is case law strongly supporting the right of people not to have an offensive view created by neighbours (  Thompson-Schwab v Costaki  [1956] 1 All ER 652) and not allow a structure or apparatus that annoys or distracts someone on their private property even if it is wholly located on the neighbouring land (  Raciti v Hughes  (1995) 7 BPR 14 837). 
 
    
 
  While the creation of telecommunication facilities and infrastructure serves the public good, it is essential that the human rights of affected individuals are protected as much as possible. This Bill increases the requirement on telecommunications companies to consult with residents and land owners who would be affected by the erection of new phone towers, or by the extension of existing infrastructure. It also places reasonable limits on some constructions to help ensure that even if the development proceeds, the rights of individuals are not unreasonably infringed. 
 
    
 
   Conclusion 
 
    
 
  This Bill is compatible with human rights to the extent that it engages with the rights to property, and use and enjoyment of that property. 

 

 

Mr Andrew Wilkie MP, Member for Denison

Telecommunications Amendment (Giving the Community Rights on Phone Towers) Bill 2014

 

Clause 1: Short Title

1.     This clause is a formal provision and specifies the short title of the Bill, once enacted, as the Telecommunications Amendment (Giving the Community Rights on Phone Towers) Act 2014 .

Clause 2: Commencement

2.     This clause provides for the commencement of all Sections of the Act the day after the Act receives the Royal Assent

Clause 3: Schedule(s)

3.     This clause establishes that, as the intent of the Bill is to be realised through amendments to other Acts, the Schedules of this Bill will amend those Acts accordingly.

 

Schedule 1 - Amendments

 

Telecommunications Act 1997

 

Item 1: Clause 1 of Schedule 3 (fourth dot point, paragraph (g))

1.     Item 1 allows for more than one owner of relevant land to be notified by carriers by altering a singular to a plural.

Item 2: Subclause 6(5) of Schedule 3

2.     Item 2 removes the ability for any kind of tower to be specified under a legislative instrument, such as the Telecommunications (Low-impact Facilities) Determination 1997.

Item 3: Subclause 6(7) of Schedule 3

3.     Item 3 removes reference to tower extensions being specified under a legislative instrument as it is now redundant due to the effect of the proposed amendment to subclause 6(5) removing all mention of towers.

Item 4: Paragraph 7(8)(a) of Schedule 3

4.     Item 4 means that measurements of towers will include antennae extending from the top of the tower.

Item 5: Clause 17 (heading)

5.     Item 5 brings the heading of clause 17 into conformity with the proposed amendment to subclause 17(1).

Item 6: At the end of subclause 17(1) of Schedule 3

6.     Item 6 specifies that carriers must notify any owner or occupier of land within 500 metres of an activity under Division 3 or Division 4 of Schedule 3 of the Telecommunications Act 1997.

Item 7: Subclause 17(4) of Schedule 3

7.     Item 7 expands the time period in which notification must be given before activities commence from 10 business days to 30 business days.

Item 8: Subparagraph 27(1)(g)(ii) of Schedule 3

8.     Item 8 modifies the criteria for issue of a facility installation permit for proposed facilities near community sensitive sites, mandating that all alternative less sensitive sites must be unfeasible and that any proposed facilities must be at least 100 metres away from any community sensitive site.

Item 9: After subclause 27(4) of Schedule 3

9.     Item 9 disallows ACMA from having regard to commercial interests of carriers when determining if the proposed facility is an important part of the telecommunications network to which it relates.

Item 10: After subclause 35(3) of Schedule 3

10. Item 10 allows for appeals to be made to the Administrative Appeals Tribunal for review of a decision made by ACMA to issue a facility installation permit.

Item 11: Subclause 48(1) of Schedule 3

11. Item 11 increases the requirement on ACMA to notify the public as to the kind and location of various infrastructure from ‘may inform’ to ‘must inform’.

Item 12: Paragraph 48(2)(a) of Schedule 3

12. Item 12 repeals the requirement that ACMA must have regard to the views of associations which it is satisfied represents carriers.

Item 13:  At the end of paragraph 48(2)(b) of Schedule 3

13. Item 13 restricts ACMA from considering the legitimate business interests of carriers when those interests relate to competition between carriers.

Item 14:  At the end of subclause 48(2) of Schedule 3

14. Item 14 requires ACMA to consider the impa cts of the proposed facility on the public when informing the public about the proposal.