Telecommunications (ACCC Inquiry into Access to Regional Towers and Associated Infrastructure) Direction 2022

The instrument organises its requirement around several controlling concepts. First, it establishes the ACCC public inquiry as the mechanism for investigation; that is the formal fact-finding and reporting process under Division 3 of Part 25 of the Telecommunications Act 1997 (s5(1)). The inquiry is the primary procedural device the Minister uses to elicit information and produce findings for policy or regulatory consideration. The instrument does not itself change substantive rights or impose regulatory obligations on third parties; it sets the evidence-gathering and analytical remit for the ACCC.

Second, the instrument defines the physical and organisational scope by reference to “towers and associated passive and active infrastructure” that can be used to support mobile telecommunications and other radiocommunications services (s5(1)(a)). The definition of “towers” in s4 explicitly includes NBN towers, radio and television broadcasting towers and other suitable towers or similar structures. The phrase “associated passive and active infrastructure” is used but not further defined in this instrument; the ACCC is required to consider both passive and active components as part of its remit (s5(1)(a), s5(2)). This leaves the ACCC scope-setting role open to interpret the boundaries between tower structures, passive elements such as mounts, power and site access, and active components such as baseband radios and power amplifiers.

Third, the instrument frames geography and use cases. It explicitly focuses on regional, rural, remote and peri-urban areas within Australia where mobile coverage is typically less dense than urban locations (s5(1)(a)). It separately identifies natural disasters and “other such emergencies” as contexts for exploring temporary mobile roaming arrangements (s5(1)(b); s5(2)(h)). The latter concept requires the ACCC to examine technical feasibility, support systems and business processes, and the time and costs involved for temporary roaming (s5(2)(h)(i)-(iii).

Fourth, the instrument emphasises costs, access arrangements, and commercial terms as central analytical lenses. The ACCC must have regard to the costs of providing towers and infrastructure, the costs of accessing land to provide the infrastructure (s5(2)(a)-(b)), the structure and determinants of current commercial fee arrangements for third party access (s5(2)(c)), and the factors providers consider when deciding whether to provide towers and whether to provide access (s5(2)(e)). It also makes a discrete request to examine the effects of mobile carriers’ divestment of tower and associated infrastructure businesses on access scope, terms, fees and the determinants of those fees (s5(2)(g)).

Fifth, stakeholder consultation is a stated concept: the instrument requires the ACCC to consult providers of towers and other infrastructure, likely users, and members of the community interested in coverage improvements and temporary roaming (s5(3)(a)-(d)). The instrument labels its list of matters as “without limitation” (s5(2)), which signals that the ACCC’s list of considerations is not closed and allows the ACCC to consider other relevant material that it deems appropriate.

Finally, the instrument links to the statutory report obligation under the Act: it notes that section 505 requires the ACCC to prepare a report setting out findings and give a copy to the Minister, and that the ACCC is expected to provide this report as soon as reasonably practicable or otherwise within 12 months of the inquiry’s commencement (s5 note 2). The instrument thus combines an evidentiary remit with an explicit expectation about reporting timing.

Each of these concepts defines what the ACCC must investigate and consult on, while leaving the ACCC discretion to determine precise boundaries, evidence standards, and the analytical framework it will apply within the parameters set by the direction.

The instrument identifies several categories of affected parties by name or by definition. These include providers of towers and associated infrastructure, owners of other suitable structures, neutral host operators, specialist tower operators, telecommunications carriers and telecommunications service providers, utilities, emergency service organisations, and other operators of radiocommunications equipment. The instrument’s definition provision makes explicit that “likely users” for the purposes of subsections 5(2) and (3) encompasses telecommunications carriers, telecommunications service providers, utilities, emergency service organisations and other operators of radiocommunications equipment (s4(2)). Note 1 under s5(1) further clarifies that “telecommunications and other infrastructure providers” includes specialist tower operators, neutral host operators, telecommunications carriers, owners of other suitable infrastructure, utilities and emergency service organisations.

Practically, the primary groups asked to engage with the ACCC inquiry are therefore:

• Tower owners and operators, including specialist tower companies and mobile carriers who own tower businesses (s5(1) note 1; s5(3)(a)).
• Other infrastructure owners whose structures could be repurposed for mobile coverage; this includes utility asset owners and broadcasters with towers or masts (s5(1) note 1; s5(3)(b)).
• Third party telecommunications providers and likely users that may seek access to towers and associated infrastructure, for example mobile network operators or other radiocommunications service providers (s4(2); s5(3)(c)).
• Emergency service organisations and entities involved in disaster response, both as operators of infrastructure and as potential users of temporary roaming arrangements (s4(2); s5(2)(h)).
• Members of the community interested in improvements to mobile coverage and temporary roaming during emergencies; the ACCC is explicitly required to consult community members (s5(3)(d)).

Indirectly affected parties include landowners and local governments because the ACCC must have regard to the costs of accessing land for providing towers and associated infrastructure (s5(2)(b)). The instrument also contemplates that divestment by mobile carriers of tower businesses is a phenomenon the ACCC must consider; that impacts potential purchasers of tower assets, investors and downstream service providers who may face different access terms post-divestment (s5(2)(g)).

The instrument does not itself create rights of access or obligations to grant access; it requires inquiry into access arrangements. Therefore the immediate legal obligations in the instrument are directed only at the ACCC. However, affected parties are the target audience for the ACCC’s consultation and the sources of evidence and submissions that the ACCC will consider in preparing its report (s5(3)).

Finally, timelines affect stakeholders: the ACCC must commence the inquiry no later than 1 July 2022 (s5(1)). The instrument notes an expectation that the ACCC will deliver a report within 12 months of commencement (s5 note 2). Stakeholders should therefore expect a relatively time-bound process and an opportunity to influence findings within that timeframe.

Specified duties in this instrument attach primarily to the ACCC and, indirectly, to the Minister. The instrument does not create new private rights or statutory entitlements for third parties; instead it prescribes a set of duties for the ACCC in conducting the inquiry and consulting. The principal duties are:

• To hold a public inquiry under Division 3 of Part 25 of the Telecommunications Act 1997, commencing no later than 1 July 2022 (s5(1)). This is a directive from the Minister to the ACCC made under subsection 496(1) of the Act (s3).
• To consider, without limitation, a list of specified matters when conducting the inquiry. These matters are set out in s5(2)(a)-(h) and include: the costs of providing towers and associated passive and active infrastructure (s5(2)(a)); the costs of accessing land to provide towers and infrastructure (s5(2)(b)); the structure and determinants of existing commercial and other fee arrangements for access (s5(2)(c)); the effectiveness of current commercial and regulatory arrangements for enabling third party access (s5(2)(d)); the matters providers consider when deciding whether to deploy towers and whether to provide access (s5(2)(e)); how those considerations may affect the provision of greater mobile coverage (s5(2)(f)); the implications of mobile carriers divesting tower and infrastructure businesses on access scope, terms and fees (s5(2)(g)); and the feasibility of temporary mobile roaming services during disasters and emergencies including technical feasibility, support systems and business processes, and expected time and costs (s5(2)(h)).
• To consult with identified persons, bodies and agencies relevant to the matters described. The specified consultees include providers of towers and associated infrastructure, providers of other infrastructure that could be used to supply mobile services, likely users of towers and associated infrastructure, and members of the community interested in improvements in mobile coverage and temporary roaming arrangements (s5(3)(a)-(d)).

The rights created or recognised in this instrument are procedural: stakeholders identified for consultation have a prospective right to be consulted as the ACCC conducts its inquiry (s5(3)). That is a direction to the ACCC to include those groups in the consultation process, rather than a private legal right enforceable against other third parties.

The Minister’s authority to issue the direction is declared in s3: it is made under subsection 496(1) of the Telecommunications Act 1997. The instrument itself does not alter the statutory powers or duties of providers, carriers, utilities or emergency services; it asks the ACCC to examine the relevant arrangements and report findings to the Minister, who will then presumably consider further policy or regulatory responses. The instrument also references the statutory report obligation under s505 of the Act in Note 2 to s5, which places a duty on the ACCC to prepare a report following the inquiry and give a copy to the Minister. The instrument states an expectation that the report will be provided as soon as reasonably practicable or within 12 months from commencement (s5 note 2).

No enforcement penalties or direct compliance sanctions are imposed on private parties by this instrument. The ACCC’s duties are to investigate, consult and report; any downstream legal effects flow from the Act or subsequent regulatory or legislative action outside this instrument.

The instrument itself does not create or specify penalties, fines or enforcement mechanisms for private parties. It is a Ministerial direction that instructs the ACCC to conduct a public inquiry under the relevant division of the Telecommunications Act 1997; the obligation imposed is to the ACCC rather than to carriers, tower owners or other private actors (s5(1)). The text does not set out enforcement consequences for failure to participate in consultations, to provide information, or for conduct related to access to towers and infrastructure. There is also no provision in this instrument that alters or supplements the enforcement regime of the Telecommunications Act itself.

The instrument references the Act for the ACCC’s reporting duty. Note 2 to s5 cites section 505 of the Act, stating that the ACCC must prepare a report setting out its findings and give a copy to the Minister, and that the ACCC is expected to provide the report “as soon as is reasonably practicable, or otherwise within 12 months from the commencement of this inquiry” (s5 note 2). That reference identifies the statutory reporting obligation under the Act, but the instrument does not specify enforcement steps that follow from the ACCC failing to meet timing expectations or the Minister taking further action. Any compliance or enforcement obligations applicable to the ACCC itself would derive from the Act and the administrative law framework for executive agencies, not from the instrument’s text.

Because this instrument does not create private enforcement rights or alter statutory access regimes, parties seeking remedies against private actors for access or fee issues must look to existing statutory provisions and common law remedies in the Telecommunications Act or other relevant statutes. This instrument is evidence-gathering and consultative in nature; it frames the ACCC’s investigatory remit and consultation obligations. If the ACCC’s report were to recommend regulatory intervention, or if the Minister or Parliament were to implement new rules or statutory amendments in response to the inquiry, those instruments could introduce penalties or enforcement provisions; none are created by this direction itself.

Finally, the instrument’s “without limitation” wording in s5(2) gives the ACCC latitude to consider other matters relevant to its inquiry. That discretion does not translate into enforcement powers in this instrument. Enforcement follows from primary legislation or regulations; this instrument instructs the ACCC’s fact-finding and reporting functions.

This instrument is made under subsection 496(1) of the Telecommunications Act 1997 (s3), and it explicitly requires the ACCC to hold a public inquiry under Division 3 of Part 25 of that Act (s5(1)). Therefore the instrument operates within the statutory framework and processes established by the Telecommunications Act. The instrument does not itself amend the Act, nor does it create or modify substantive rights or obligations under the Act. Rather it instructs the ACCC to use the inquiry powers already provided by the Act to investigate specific subjects.

The instrument’s reference to the ACCC preparing a report under section 505 of the Act (s5 note 2) further links the direction to statutory reporting duties. Section 505 is invoked to explain that the ACCC must prepare a report setting out its findings and give a copy to the Minister. The instrument sets an expectation about timing for that report, namely as soon as reasonably practicable or within 12 months from commencement (s5 note 2). Any legal duties, timetables or procedural requirements that flow from Division 3 of Part 25 and section 505 therefore remain governed by the Act rather than by the instrument.

The instrument refers to commercial and regulatory arrangements for access to towers and associated infrastructure (s5(2)(c)-(d)). Those references imply that the ACCC should consider the operation of existing regulatory frameworks applicable to infrastructure access. However, the instrument does not specify or alter the content of those regulatory regimes. If the ACCC identifies gaps or issues, its report may recommend regulatory amendments to be implemented under the existing legislative process, but this instrument does not itself make those changes.

The instrument’s consultation requirements (s5(3)) intersect with administrative law principles governing consultations undertaken by statutory agencies. The ACCC is required to consult listed groups, which must be interpreted and implemented in the context of the ACCC’s statutory duties and administrative law obligations. The instrument does not displace other procedural obligations that the ACCC may have under the Act, regulations, or general administrative law.

Land access, planning, environmental, and local government laws are not expressly mentioned beyond the ACCC being required to have regard to “the costs of accessing land” to provide towers and associated infrastructure (s5(2)(b)). That indicates the ACCC’s inquiry should consider how those legal frameworks and related transaction costs affect deployment and access, but the instrument does not itself change statutory regimes for land, planning approvals, or environmental approvals.

Finally, because the instrument contemplates mobile carriers divesting tower businesses (s5(2)(g)), it invites analysis of competition law and asset transfer effects. The ACCC’s existing remit as a competition regulator may bear on its assessment of divestment implications, but the instrument does not change competition law. Any competition-related consequences or enforcement would remain governed by the Competition and Consumer Act and other applicable statutes outside this instrument.

In sum, the instrument interacts with other laws by invoking the Telecommunications Act as the enabling framework and by directing the ACCC to analyse the interaction between access arrangements and various legal and commercial constraints; it does not itself change substantive legal rights under other statutes.

The instrument contains limited statements relevant to amendment and commencement. Section 2 sets out the commencement arrangement by way of a three-column table. The operative provision is that the whole of the instrument commences the day after this instrument is registered (s2, Commencement table). Section 2(1) includes a note that the table relates only to the provisions of the instrument “as originally made” and that it will not be amended in the instrument text to reflect later amendments (s2(1) note). Section 2(2) clarifies that any information appearing in column 3 of the table is not part of the instrument and may be edited in published versions without altering the instrument’s text (s2(2)).

Beyond those commencement and editorial notes, the instrument does not record any subsequent amendments, repeals, or alterations. It is presented as a standalone direction made by the Minister on 25 March 2022 (cover page). There are no schedules or amendment clauses appended that would change the instrument at the time it was made. The instrument does not provide a mechanism within its text for amendment; amending it would require a further instrument or statutory process in accordance with the enabling provision, subsection 496(1) of the Telecommunications Act 1997 (s3).

Because the instrument expressly states that the commencement table is tied to the instrument as originally made and that column 3 entries are not part of the instrument (s2(1)-(2)), readers should not rely on published editorial annotations in column 3 as authoritative law. Any formal changes to the instrument would be reflected by a subsequent instrument recorded in the registry or relevant statutory instruments register rather than by editing the commencement table text here.

No repeal history, transitional provisions, or other amendment records are contained within the instrument itself. The instrument therefore stands as made on the date shown until or unless formally amended or revoked by an appropriate subsequent instrument using the same statutory authority.

This instrument contains no references to litigation, judicial interpretation or appeals, and it does not record any court decisions. It is a ministerial direction that instructs a statutory agency to conduct an inquiry; the text contains no statement that it has been the subject of judicial review, declaratory proceedings, or challenge. The instrument does reference statutory sections of the Telecommunications Act 1997 for authority and process (s3; s5 reference to Division 3 of Part 25 and note on s505), but it does not cite or rely on any judicial authorities.

Because this instrument is an administrative direction, disputes about it could, in principle, be the subject of judicial review or other proceedings in the appropriate forum if a party had standing and identified a justiciable grievance against the Minister’s use of power under the Act. However, the instrument neither records nor reports such litigation. The present text therefore contains no litigation history to summarise.

Practitioners seeking litigation-related context will need to consult external sources, the Act, or court records for any judicial consideration of the Minister’s use of s496(1) or the ACCC’s subsequent conduct of an inquiry under Division 3 of Part 25. The instrument itself is silent on these points.

Several features of the instrument can affect expectations and require careful attention when planning responses or engagement.

• The obligation is to the ACCC, not to industry participants. This instrument does not impose access obligations or fee caps on tower owners or carriers. It mandates inquiry, not direct regulatory change (s5(1)). Parties seeking immediate change will not find it here.

• “Without limitation” in s5(2). The matters listed for the ACCC to consider are expressly “without limitation” (s5(2)). That gives the ACCC latitude to examine additional matters beyond those enumerated. Stakeholders should anticipate a potentially broader inquiry than the itemised list suggests and prepare submissions addressing related issues they deem relevant.

• Broad definitions widen the consultation universe. Section 4 expands “towers” to include NBN towers, radio and television broadcasting towers and other suitable towers or similar structures (s4). Section 4(2) defines “likely users” to include telecommunications carriers, service providers, utilities, emergency service organisations and other operators of radiocommunications equipment. Those definitions mean that a wide array of infrastructure owners and users are legitimate consultees under s5(3). Parties who might not self-identify as core telecoms players may nevertheless be within scope.

• The instrument distinguishes costs of providing infrastructure from costs of accessing land. The ACCC is asked to consider both the costs of providing towers and associated infrastructure and the costs of accessing land for providing that infrastructure as separate items (s5(2)(a)-(b)). Submissions that conflate these or omit land access costs risk leaving out a material part of the inquiry.

• Divestment focus. The instrument requires specific attention to implications of mobile carriers divesting tower and associated infrastructure businesses (s5(2)(g)). This focuses the ACCC on scope, terms and fees post-divestment, and the determinants of commercial arrangements. Stakeholders should be prepared to provide historical and forward-looking evidence on how divestments have altered access arrangements.

• Temporary mobile roaming is a discrete technical and commercial item. The ACCC must assess technical feasibility, support systems and business processes, and expected time and costs in providing temporary roaming during disasters and emergencies (s5(2)(h)(i)-(iii)). Those three elements make clear that the ACCC expects operational detail as well as cost estimates. High-level assertions without concrete technical or process detail may be less persuasive.

• Consultation requirement includes community members. The ACCC must consult members of the community that may be interested in coverage improvements and temporary roaming (s5(3)(d)). Community representations on coverage trade-offs, local planning sensitivities and emergency communications expectations could be factored into the ACCC’s findings.

• Timing expectation without a hard deadline for the report. The instrument notes the ACCC is expected to provide its report within 12 months from the inquiry’s commencement or as soon as reasonably practicable (s5 note 2). The phrase “expected” and “reasonably practicable” are not rigid statutory deadlines in the instrument. The ACCC should be aware of the expectation but also has administrative discretion around timing.

• Column 3 of the commencement table is not part of the instrument. Section 2(2) specifies that any information in column 3 is not part of the instrument and may be edited in published versions (s2(2)). Users should not treat ancillary table notes or editorial annotations as legally operative.

• The instrument does not define “associated passive and active infrastructure”. While the term is central to the inquiry (s5(1)(a)), the instrument leaves the ACCC to interpret the scope of passive versus active elements. Parties should explicitly outline what components they consider passive and active in submissions to avoid ambiguity.

• No enforcement or sanctioning mechanism in this instrument for non-participation. The instrument does not compel private parties to supply data or participate in consultation; enforcement of participation obligations, if any, would arise from other legal powers or the ACCC’s usual information-gathering tools under the Act, which are not amended here.

These points affect how stakeholders prepare evidence, how the ACCC may frame its inquiry, and how the Minister, policymakers and industry might interpret the eventual findings.

Compliance here has two principal dimensions: the ACCC’s compliance with the direction, and affected parties’ practical compliance with the inquiry process by participating constructively in consultation and evidence-gathering.

For the ACCC:

• Commence the inquiry no later than 1 July 2022. Section 5(1) mandates commencement by that date. The ACCC should document the formal commencement date and publish procedural timetables and calls for submissions consistent with Division 3 of Part 25 of the Telecommunications Act 1997 (s5(1)). Meeting the Minister’s timing expectation for a report within 12 months will require a project plan aligned to expected timelines noted in the instrument (s5 note 2).
• Ensure the inquiry addresses the specified matters in s5(2)(a)-(h). The ACCC must have regard to the costs of providing towers and infrastructure, land access costs, fee arrangements, effectiveness of arrangements, provider decision considerations, impact on coverage, implications of divestment, and the feasibility of temporary roaming (s5(2)). These matter headings should be operationalised into lines of enquiry and evidence requests.
• Consult the persons and groups specified in s5(3). The ACCC must consult providers of towers and associated infrastructure, providers of other infrastructure, likely users and interested community members (s5(3)(a)-(d)). The ACCC should publish a stakeholder list, set consultation sessions, and provide mechanisms for written submissions and confidential data where appropriate.
• Use “without limitation” discretion prudently. The ACCC’s list of matters is non-exhaustive (s5(2)). The ACCC should set out in its terms of reference any additional topics it will consider and explain why, to provide transparency for participants.
• Address the divestment item with specific information requests. Given the direction to consider implications of carriers divesting tower businesses (s5(2)(g)), the ACCC should make specific requests for data on historical divestments, contractual access terms before and after divestment, and any structural or behavioural changes observed.
• Seek technical and process detail for temporary roaming. The directive asks for technical feasibility, support systems and business processes, and expected time and costs for temporary roaming (s5(2)(h)(i)-(iii)). The ACCC should require submissions to include technical designs, interconnection and roaming arrangements, estimated deployment timelines, staffing and systems needs, and cost modelling.

For industry participants, infrastructure owners and likely users:

• Treat engagement as an expectation. The ACCC is told to consult specified groups (s5(3)). Providers and users should monitor the ACCC’s calls for submissions and provide evidence. Participation provides the primary channel to influence the ACCC’s findings.
• Provide disaggregated cost data. The ACCC is required to have regard to both the costs of providing towers and infrastructure and costs of accessing land separately (s5(2)(a)-(b)). Submissions should separate capital expenditure, operational expenditure, recurring fees, and land or lease costs, and identify which costs underlie access charges versus infrastructure provisioning.
• Document current commercial fee arrangements and determinants. The ACCC must examine existing arrangements and the considerations contributing to fee-setting (s5(2)(c)). Parties should submit exemplar contracts, pricing schedules, methodologies for calculating fees, and evidence of negotiation dynamics where available.
• Articulate provider decision factors and coverage trade-offs. Section 5(2)(e) asks what providers consider when deciding to deploy towers and when to provide access. Submissions should explain risk, return expectations, regulatory constraints, maintenance and upgrade obligations, planning and local approval hurdles, load and capacity considerations, and any security or safety concerns.
• For divestments, provide pre- and post-divestment comparisons. If a carrier has divested tower assets, submissions should show access scope and terms before and after, any changes in negotiation lead times, and whether the divestment materially altered incentives to provide access (s5(2)(g)).
• For temporary roaming, provide technical and operational dossiers. The ACCC will seek evidence on technical feasibility and business processes (s5(2)(h)). Parties should prepare network architecture diagrams, interconnection and authentication processes, billing and settlement mechanisms, timelines to enable roaming, and cost estimates for setups and operations.
• Engage community voices with focussed evidence. Non-technical stakeholders can assist by articulating coverage deficits, emergency communications needs, and local constraints. The ACCC is required to consult members of the community with interest in coverage improvements and temporary roaming (s5(3)(d)).
• Protect commercially sensitive information while enabling the ACCC’s analysis. Where confidential data is submitted, ask for confidentiality protections or in-camera consideration; the instrument does not specify confidentiality regimes, but the ACCC has established practices for confidential material in inquiries.

Administrative and documentary steps:

• Prepare a submission folder that maps evidence to the instrument’s list in s5(2). Clear cross-referencing will help the ACCC to treat material as responsive.
• Provide quantified, sourced data where possible. Narrative assertions without data on costs, timing, or technical capability will be less useful for the ACCC’s report.
• Be prepared to participate in public hearings and bilateral meetings, and to nominate subject-matter experts on technical, commercial and land-planning matters.

Complying with the instrument therefore means the ACCC conducts its inquiry as directed and stakeholders actively participate by providing the types of evidence the instrument identifies as material.