Monday, 13 August 2018
Telecommunications Legislation Amendment Bill 2018; Second Reading
I rise to speak on the Telecommunications Legislation Amendment Bill 2018. Schedule 1 of the bill proposes to amend the National Broadband Network Companies Act 2011 to require NBN to provide emergency service organisations with access to its towers in certain circumstances. These emergency service organisations can include fire, ambulance and police as well as state and territory services. The explanatory memorandum sets out that, in recent times, several police services have requested access to towers owned or operated by NBN. However, NBN has been unable to provide this access because of line-of-business restrictions in the relevant legislation. These restrictions prevent NBN from providing access to entries that are not supplying a telecommunications service. We understand these restrictions also extend to supplying goods or services such as electricity that is needed to power transmission equipment located on the tower.
Clearly these restrictions are impractical and unnecessary when it comes to emergency service organisations. Schedule 1 proposes to amend the existing restrictions applying to the NBN so that such access can be supplied to eligible emergency service organisations without breaching those restrictions. Access in general would allow an eligible person to install, maintain, operate or remove equipment. Labor is supportive of this proposal as it seems to be a sensible step. It raises a more general point though that is worth considering. The Australian public have made a significant investment in telecommunications infrastructure as a result of the NBN rollout. These investments will translate into various communications assets that are spread across the country.
There is a range of public interest services in which these assets can play a useful role. Supporting the efficient deployment of the communications infrastructure of emergency service organisations is certainly in the public interest. At present, these organisations would typically seek access to the towers of mobile carriers or, where necessary, build their own. This allows them to install and operate equipment that supports their communication networks, which are needed for daily communications and during disaster and emergency response times. Naturally, to support the cost-effective deployment of this infrastructure, emergency service organisations will wish to leverage existing infrastructure where it is available. The schedule will establish a tower access regime to facilitate that access. Under the proposed tower access regime, NBN would be required to give access to the tower and related sites. If there is another tower in the vicinity of the tower owned or operated by the NBN, the NBN would need to be satisfied that it would not be reasonable for that entity to access the other tower before providing access to its own. It is anticipated that an eligible person would need to provide sufficient evidence to the NBN to enable it to be reasonably satisfied. We are satisfied that schedule 1 offers adequate safeguards in that NBN is not required to provide access where it is not technically feasible. This might occur in circumstances where there is no space or capacity on the tower in question. Imposing such a requirement would create a range of operational and technical challenges that would be both costly and impractical unless a fair mechanism for covering costs were in place.
Whilst this measure can help better leverage lower impact infrastructure, the government's failures have been highly evident in the Mobile Black Spot Program. First we had the ANAO report on round 1 of the Mobile Black Spot Program, which highlighted serious flaws, and later we had the Productivity Commission echoing these findings. This is a program that's supposed to improve public safety and expand mobile phone coverage across Australia. In round 1, the funding promised to deliver 499 new and upgraded mobile base stations across Australia, yet more than 80 per cent of the announced locations for the new mobile phone towers were in Liberal- or Nationals-held electorates, with less than seven per cent in electorates held by Labor members. Further, the ANAO found that one in four of the base stations did not extend coverage. That's nearly 125 towers that did not extend coverage. Just to repeat: the Audit Office report found that one in four of the black spot stations funded in round 1 did not extend mobile phone coverage. The co-location arrangements for round 1 of the program were also nothing short of a shambles. This mismanagement has led to a waste of taxpayer dollars that could otherwise have delivered much better outcomes for regional communities.
The government must heed the advice of the reports, which have issued critical assessments of the government's handling of the Mobile Black Spot Program. For far too long the government has used the program to meet political priorities rather than community needs. Around 75 per cent of locations announced under rounds 1, 2 and 3 are located in either Liberal or National Party electorates. The blatant politicisation of this program has led many states to abandon the program. There certainly remains more scope to leverage NBN assets in regional Australia to support co-location objectives and the more efficient deployment of communication infrastructure.
I now wish to turn to schedule 2, which deals with the deployment of temporary mobile towers. Carrier powers and immunities are a longstanding regime under the Telecommunications Act which effectively serve to deactivate state and local planning laws for the purpose of deploying low-impact communications infrastructure. When a particular type of infrastructure is deemed to be of low impact, the usual planning processes may no longer apply. Low-impact facilities include some radio communications facilities, underground and above-ground housing, underground and some aerial cables, public payphones and emergency and co-located facilities. It's important to note these arrangements help minimise the cost and time so that telecommunications companies can deploy infrastructure more efficiently and sooner. The benefits clearly flow to consumers and carriers who can deploy infrastructure faster and more cheaply. It also means that carriers can roll out low-impact facilities and infrastructure under one national process rather than multiple state, territory and local government requirements. In general terms, the regime provides certain immunities, including from a range of state and territory laws when carrying out those activities, such as laws relating to land use, planning, design, construction, siting, tenancy, environmental assessments and protection.
As the explanatory memorandum notes, schedule 3 to the Telecommunications Act does not currently permit towers other than replacement towers of a particular height to be installed using carriers and immunities. Mobile towers, as everyone in this place would know, can be a sensitive local issue for communities for a variety of factors. In Australia, we're fortunate to have one of the best mobile markets in the world. This is a testament to our industry, which continues to invest in and improve the quality and coverage of the networks. Naturally, a balance must be struck between the need to deploy infrastructure efficiently and in a timely manner and the processes and risk judgements policymakers make about their deployment. But, when there are sensible opportunities to streamline and improve, we should pursue those.
Schedule 3 to the Telecommunications Act does not currently permit towers other than replacement towers of a particular height to be installed using carriers and immunities. Temporary towers require local government approval in many places. Mobile operators are often required to obtain approvals from local governments to temporarily install these facilities. Naturally, the approvals process increases costs and time frames for deployment in exchange for greater local oversight and risk management over their deployment. Several of the amendments proposed by schedule 2 to the bill would allow towers to be installed temporarily under the proposed conditions, provided they are deemed to be low impact. As I noted earlier, when infrastructure is deemed low impact, it allows local approval processes to be bypassed.
Specifically, schedule 2 to the bill would amend the Telecommunications Act to allow the Minister for Communications to specify that a temporary telecommunications tower is a low-impact facility. This would be done in certain circumstances which have been described as relating to the maintenance of existing facilities, providing additional coverage during an event and providing services to emergency service organisations to respond to a natural disaster or an emergency. These are all legitimate circumstances in which temporary mobile infrastructure is deployed. The bill indicates a temporary tower would be limited to no more than 30 metres in height. As it stands, we do not have sufficient practical insight to understand the implications of what that means in terms of existing practice.
Labor is supporting steps to streamline processes for the deployment of mobile infrastructure, provided it is safe and the benefits outweigh the risks. However, this is often a matter of significant sensitivity to the community and it is not desirable for such legislation to be unduly rushed through the Senate. It is both prudent and appropriate to allow such proposals to be scrutinised through an inquiry to ensure that any potential risks are understood and the practical changes from the status quo are understood. The deployment of infrastructure and the approval processes that go with it are very much a local matter for planning authorities. The role of the Commonwealth here is unique in that we're using Commonwealth law to override local requirements. This must be treated sensitively and with due care to ensure all stakeholders have a practical understanding of what the practical implications are. From what we understand, there are no new powers accompanying the proposed change in approach. Rather, potential breaches of requirements to remove temporary facilities after a designated period of time would fall under general powers for breaches of the Telecommunications Act.
The Australian Local Government Association has expressed several concerns about schedule 2. As we understand it, the ALGA is not opposed to streamlining processes for the purpose of deploying temporary infrastructure to support responses to emergencies or natural disasters, which I think we would all support, but the ALGA is not supportive of the other defined circumstances which relate to events, maintenance and peak periods. These concerns have been expressed on the basis that the proposed amendments to the bill are a concern for local government insofar as they propose to override planning, consultation and safety assessment provisions. It remains unclear which safety assessment provisions they would be overriding. The ALGA have also expressed concerns that low-impact determinations should not be able to override local government heritage provisions or precincts. We do not have a sufficient understanding of the issue to form a risk judgement on these views. But, given the practicalities of these on-the-ground issues and the distance at which the federal parliament typically operates from them, an inquiry process is appropriate to ensure these matters can be considered in a transparent way.
In summary, Labor will be supporting schedule 1 of this bill. We would also support a second reading of the bill, as the measures are sensible and have been proposed in good faith. Nonetheless, we consider that it is in the public interest to ensure that this bill is scrutinised by the Senate through a short inquiry process to identify any potential risks or practicalities which at this present time are not well understood. The community expects us to be responsible custodians of any changes to law where local requirements are overridden. The laws are designed to strike the right balance between the community's need to access reliable, affordable telecommunication services and ensuring that property owners, local governments and communities have a say in the deployment of infrastructure that affects them. I intend to move a motion to see this bill proceed to a short inquiry process. It's both a reasonable and a sensible measure, and I hope it will have the support of the government and all other parties in the Senate. I move:
At the end of the motion, add: "and the bill be referred to the Environment and Communications Legislation Committee for inquiry and report by 31 August 2018".
The Telecommunications Legislation Amendment Bill 2018 includes two measures. The first is to allow access to NBN towers by emergency services organisations, and the second is to specify temporary telecommunication towers as low-impact facilities. The Australian Greens support the intent of this bill and we strongly support access to telecommunication services during emergencies. We are supportive of the changes proposed in schedule 1 of the bill, although we have not been able to obtain a record of any emergency services requesting access to NBN towers in the past. Perhaps this is something that the minister would be willing to provide.
The changes proposed in the bill were outlined in a consultation paper last year entitled Possible amendments to telecommunications carrier powers and immunities. According to the explanatory memorandum, the carrier powers and immunities regime minimises the regulatory burden on carriers. The government is seeking to extend this regime to include temporary powers so that carriers do not need to obtain development approval from local government to temporarily install these facilities, which increases, they say, costs and time frames for deployment and affects the business case for their use.
While the government have focused on the benefits to telecommunications companies of being able to sidestep regulations and improve their business cases, they seem to have overlooked many of the concerns voiced by local governments and councils around Australia during consultations on this legislation. The Australian Local Government Association stated in their submission to the consultation:
It is not surprising that carriers will continue to push to speed up approval processes, reduce their costs and reduce timeframes. This purely commercial interest needs to be balanced with planning laws which are designed to protect public safety and limit impacts on the environment, whilst ensuring that the community has a say in the planning process.
The ALGA, along with many in local government councils from around Australia, note in their submissions that carriers already ride roughshod over local communities with disregard for safety regulations, heritage sites, environmental protections and cultural considerations. There is no reason to skirt these regulations for major events, holiday periods and scheduled maintenance, which should be subject to local government approval to ensure that there is no interference with other infrastructure and services, as well as environmental, heritage and cultural sites. We support allowances for genuine emergencies and natural disasters, however.
Clause 8B, where a temporary tower is installed for an event, allows the tower to remain up for 138 days, whereas clause C, where a tower is installed for a holiday period, allows the tower to stay up for 90 days. Clause 9 requires the carrier to restore the land. However, according to local government, carriers have a poor track record of restoring sites, and there is no penalty to ensure that that restoration of land is enforced.
This legislation follows a genuinely disturbing pattern from the Minister for Communications of introducing legislation and not allowing sufficient time for consideration, opportunity to refer to committee or scrutiny by community and stakeholders before trying to ram it blindly through the parliament. We will be supporting the ALP's amendment to refer this legislation to committee so that local governments and councils can carefully scrutinise the many local planning rules this legislation seeks to stomp on and the potential long-term impacts of these so-called temporary measures.
I rise to outline the opposition of the Liberal Democrats to the Telecommunication Legislation Amendment Bill 2018. This bill empowers the Commonwealth to authorise the installation of temporary telecommunications towers against the wishes of local councils. The Commonwealth will be able to overrule local councils not just where temporary towers serve an emergency purpose but also when temporary towers facilitate peak demand, such as during holiday periods.
Local councils have a keen interest in ensuring that telecommunications in their areas work smoothly, particularly during holiday periods. So local councils won't get in the way when there is a genuine need for a temporary telecommunications tower. But local councils also have an interest in looking after the amenity of the local residents they represent. So local councils have a legitimate role in representing local residents by preventing excessive telecommunications paraphernalia next to their homes and their businesses in our pristine, natural areas. This is democracy.
The Commonwealth has a more distant connection with the people than any local government authority in any local government area. The Commonwealth is also in a position to do favours for the benefit of telecommunications companies rather than local communities. In fact, this susceptibility to crony capitalism is the only reason why the Commonwealth is seeking to override local councils. The Liberal Democrats stand for democracy, and that is why we oppose this bill.
I'd like to thank the members who have contributed to the debate on the Telecommunication Legislation Amendment Bill 2018. The Telecommunications Legislation Amendment Bill 2018 creates a new tower access regime for towers owned or operated by NBN corporations, such as NBN Co Ltd, and would also allow the Minister for Communications to specify temporary telecommunication towers as low-impact facilities in certain circumstances.
Schedule 1 to the bill will amend the National Broadband Network Companies Act 2011 to permit NBN corporations to provide emergency service organisations, like police, fire and ambulance services, with access to towers and associated sites and facilities. The bill includes requirements for NBN Co to meet competitive neutrality requirements and also provides that NBN Co will not have to provide access if this is not technically feasible or if it does not have sufficient capacity on a tower for its own reasonable requirements or existing contractual requirements. NBN Co will be required to publish a standard offer for tower access and must provide access on a non-discriminatory basis. These obligations are consistent with its general obligations when it supplies services to telecommunication companies.
Schedule 2 to the bill will amend schedule 3 to the Telecommunications Act 1997 to allow the more efficient installation of temporary telecommunications towers when used during emergencies, maintenance, peak holiday periods and major sporting, cultural and other events. The amendments in schedule 2 to the bill will allow the Minister for Communications to specify temporary towers as low-impact facilities in certain circumstances. These changes will allow telecommunications carriers to quickly provide services to the community, businesses and emergency service organisations. Except during an emergency or natural disaster, there will be strict height restrictions imposed on temporary towers. The changes also include conditions to ensure that a temporary tower is removed within a set time frame and that carriers restore the land. I call on senators to support this bill.