Telecommunications (Carrier Licence Exemption) (ICON, DDTS, Electricity and Water Distribution) (Use for specified purposes) Determination 2023

This instrument, made under paragraph 51(1)(c) of the Telecommunications Act 1997, creates a conditional exemption from the requirement to hold a carrier licence under section 42 of that Act for four specific categories of telecommunications infrastructure located wholly within the Australian Capital Territory. The exemption applies only when the infrastructure is used for narrowly defined purposes, and each use must be authorised in writing by the relevant entity. The instrument simultaneously repeals the earlier Telecommunications (Carrier Licence Exemption , ICON, SSICT and ACTEW Networks) Determination 2013 (No. 1) in its entirety, making this the current operative exemption for those networks.

The mechanical effect is that certain owners and users of four named infrastructure sets , the Commonwealth’s Intra Government Communications Network (ICON), the ACT Government’s Digital Data and Technology Solutions (DDTS) network, the ActewAGL Corporation’s line links, and the Water Corporation’s line links , may operate a telecommunications network without a carrier licence so long as they comply with two main conditions: annual reporting to the ACMA by 30 September each year, and written authorisation of each permitted use from a specified representative. The instrument does not itself create any new criminal offences or civil penalties; non-compliance with conditions means the exemption does not apply, and the underlying licensing obligations of the Telecommunications Act (and associated enforcement provisions) revert.

The permitted uses are limited. For government-owned infrastructure (ICON and DDTS), the uses are principally the exercise or performance of a public function or duty, or activities connected with preparation for, response to, or recovery from a national emergency declared under the National Emergency Declaration Act 2020. For the utility corporation infrastructure (ActewAGL and Water Corporation), the exemption extends to the supply of permitted electricity, gas, or water services as defined. Notably, the exemption does not extend to any commercial carriage service supplied to the public; it is confined to internal government utility functions and emergency management.

From an economic lens, this instrument reduces the regulatory compliance burden on government and utility entities that would otherwise need to hold a carrier licence for their internal networks. However, it also creates a regulatory asymmetry. Private telecommunications carriers operating in the ACT must bear the full cost of carrier licensing (including application fees, annual charges, and ongoing compliance under the Telecommunications Act), while government-owned and utility-owned networks are exempt if they stay within the permitted use boundaries. This can distort competition in related services, particularly if the exempt infrastructure is used to support services that compete with licensed carriers, though the narrow purpose limitations mitigate this risk to some degree.

The instrument defines five key categories of infrastructure. Designated ICON Communications Infrastructure is the Intra Government Communications Network owned by the Commonwealth and located in the ACT, administered by the Commonwealth Department of Finance (or its replacement). Designated DDTS Communications Infrastructure comprises line links owned by the Crown in right of the ACT and located in the ACT, administered by the ACT Government’s Digital Data and Technology Solutions Group (or its replacement). Designated ActewAGL Corporation Communications Infrastructure covers line links owned by any entity within the ActewAGL group (the partnership between Icon Investments Limited and Jemena Networks (ACT) Pty Ltd trading as Evoenergy, Actew Retail Investments, or related bodies corporate) and located in the ACT. Designated Water Corporation Communications Infrastructure covers line links owned by Icon Water Limited (or related bodies corporate) and located in the ACT. The instrument applies only to infrastructure in the ACT.

The term Permitted Electricity Services means any carriage service necessary or desirable for managing the generation, transmission, distribution or supply of electricity. Permitted Gas Services is similarly defined for natural gas transmission, distribution or supply. Permitted Water Services covers carriage services for managing water distribution, sewerage services, and storm water drainage services. These definitions are purpose-based - the service must be needed for the utility function, not for any unrelated activity.

Core function is defined by reference to subsection 23(11) of the Telecommunications Act 1997. That subsection defines a business that is carried on as a core function as one that involves supplying carriage services to the public using a network. The instrument excludes from certain permitted uses any authority or institution that carries on a business as a core function. This means a utility or government body that already runs a telecommunications business open to the public cannot rely on the exemption for that business activity.

The annual reporting condition requires that each reporting entity provide the ACMA by 30 September each year with the geographic locations (at suburb level, or adjacent suburb if outside built-up areas) and capacity of each line link used during the reporting period, plus the legal name and identifier (e.g. ABN or ACN) of each user. The reporting obligation is triggered only if the infrastructure was actually used under the exemption. If no use occurred in a period, the condition appears to require either a nil report or no report - the wording is ambiguous, but prudent compliance would involve communicating with the ACMA.

The instrument directly affects the owners and users of the four designated infrastructure sets. The owners are the Commonwealth (for ICON), the Crown in right of the ACT (for DDTS), ActewAGL Corporation entities (for ActewAGL infrastructure), and Water Corporation entities (for Water Corporation infrastructure). The users that may benefit from the exemption are limited to: the Crown in right of the ACT or an authority of the ACT; an authority or institution of the ACT that does not carry on a business as a core function; ActewAGL Corporation for permitted gas or electricity services; and Water Corporation for permitted water services. For DDTS infrastructure, the Commonwealth is an additional permitted user.

The ACMA is affected as the recipient of annual reports and the body that could take enforcement action if the exemption conditions are not met. The ACMA also retains its general regulatory functions under the Telecommunications Act 1997.

The instrument indirectly affects private telecommunications carriers who do hold carrier licences. Those carriers incur application fees, annual carrier licence charges, and compliance costs under the Telecommunications Act 1997. The exempt entities face no such costs for their internal networks. To the extent that the exempt infrastructure is used for purposes that could be served by licensed carriers, there is a competitive disadvantage for the licensed carriers. However, the narrow scope - government internal functions and utility management - likely limits the competitive distortion to specific niches such as dedicated government communications networks or utility SCADA systems.

Entities that carry on a business as a core function (i.e., supplying carriage services to the public) are excluded from some uses. This means a utility that also operates a retail telecommunications network selling services to the public cannot rely on this exemption for that commercial activity. Those activities would require a carrier licence or a separate exemption.

Partnerships and related bodies corporate are within scope. ActewAGL Corporation is defined to include the partnership named and any related body corporate of the partnership or of Actew Retail Investments. This means the exemption can extend to other entities in the same corporate group, so long as the infrastructure is owned by that entity and located in the ACT.

The primary right granted by this instrument is the right to use specified telecommunications infrastructure without holding a carrier licence under section 42 of the Telecommunications Act 1997, provided the use falls within one of the permitted purposes and the conditions are satisfied. This right attaches to the infrastructure owner (who may allow others to use it) and to the user who operates the network.

The key duties are twofold: annual reporting and written authorisation. Under section 6(2)(a) (for ICON), section 7(2)(a) (for DDTS), section 8(2)(a) (for ActewAGL), and section 9(2)(a) (for Water Corporation), the relevant entity must provide the ACMA with a report by 30 September each year while the instrument is in force. The report must cover the reporting period (presumably the previous financial year, though not explicitly stated) and contain for each line link used: the geographic locations at suburb level (or adjacent suburb if outside built-up areas), the capacity of those links, and the legal name and identifier of each user as at the applicable report date.

The second duty is that each use must be authorised in writing by the appropriate person. For ICON uses, the ICON Secretary (or authorised representative) must authorise; additionally, for uses by the ACT Crown or authorities, a representative of the ACT Government must authorise; for uses by authorities or institutions, their own representative; for ActewAGL uses, a representative of the relevant ActewAGL Corporation; for Water Corporation uses, a representative of the relevant Water Corporation. For DDTS uses, both the ACT Government and the ICON Secretary must authorise. This is a bifurcated authorisation requirement for cross-government uses.

There is no explicit duty to keep records beyond what is needed to prepare the annual report. However, to demonstrate compliance, entities should retain copies of the written authorisations and records of infrastructure usage, link capacities, and user identities. The reporting obligation creates an ongoing compliance cost: gathering location and capacity data, compiling user identifiers, and submitting by the deadline.

The instrument does not impose any duty on users to notify the ACMA of changes during the year; the reporting is annual. However, if a use ceases or a new use begins, the authorisation condition must be satisfied before that use occurs.

This instrument does not itself contain penalty provisions. Enforcement occurs through the parent Act, the Telecommunications Act 1997. If a person uses a telecommunications network without a carrier licence and does not fall within an applicable exemption (including this instrument), they may be in breach of section 42 of that Act. That section creates a civil penalty provision: the maximum penalty for a corporation is 10,000 penalty units for each day of contravention (section 42(2)). The current penalty unit value is $313 as of July 2024, so the daily penalty could be up to $3,130,000 for a corporation. Individuals face lower penalties.

Failure to comply with the conditions of this instrument means the exemption does not apply. Therefore, a user who operates without satisfying the annual reporting or written authorisation conditions may be operating without a licence, exposing them to the civil penalties above. The ACMA can issue infringement notices, seek court orders, or accept enforceable undertakings.

False or misleading information in the annual report could attract criminal or civil penalties under the Regulatory Powers (Standard Provisions) Act 2014 or the Criminal Code Act 1995 (section 137.1 - false or misleading information). The reporting obligation requires accurate location, capacity, and user data, which may require careful record keeping.

The instrument does not specify any consequence for late reporting beyond the loss of the exemption. If the report is not provided by 30 September, the entity loses the exemption for any use in that period? The condition is ongoing - the exemption is subject to the condition. The ACMA could treat non-reporting as a failure to satisfy a condition, making the exemption inoperative. However, the ACMA would likely issue a notice before taking enforcement action.

There is no private right of action under this instrument; enforcement is a matter for the ACMA.

This instrument is made under paragraph 51(1)(c) of the Telecommunications Act 1997, which allows the Minister to determine that section 42 does not apply to specified uses of specified infrastructure. Section 42 is the provision that prohibits operating a telecommunications network without a carrier licence. The instrument overrides that prohibition for the limited circumstances described. It does not affect any other provisions of the Telecommunications Act, such as those relating to access, numbering, interception, or consumer safeguards.

The instrument cross-references the National Emergency Declaration Act 2020 for the definition of a national emergency declaration. That act creates a framework for declaring national emergencies. The exemption for emergency-related uses applies only when an emergency declaration is in force under that act, and the use must be in connection with preparation for, response to, or recovery from that emergency.

The instrument uses the term related body corporate as defined in the Corporations Act 2001 (section 50). This means the exemption can extend to subsidiaries and holding entities of the named corporations, but only if those related bodies corporate own infrastructure located in the ACT and fall within the definitions.

The instrument repeals the earlier 2013 determination (Telecommunications (Carrier Licence Exemption , ICON, SSICT and ACTEW Networks) Determination 2013 (No. 1)). That determination previously provided exemptions for similar networks but likely with different conditions and definitions. Any transitional issues are not addressed; the instrument commences the day after registration, and from that date the old determination is gone. Users should check that their arrangements fit within the new instrument.

The definition of core function incorporates subsection 23(11) of the Telecommunications Act, which defines when a business is carried on as a core function. That provision is used to exclude entities that are essentially in the business of supplying carriage services to the public from benefiting from the exemption for other permits. This interacts with the concept of operating a network - if a government authority already operates a carrier network as a core function, it cannot use this exemption for additional uses.

State and territory laws may also apply to the infrastructure, such as planning and environment laws, and utility regulation. This instrument does not provide any exemption from those laws.

The instrument itself does not have an amendment history as it is a new determination. It does, however, repeal and replace an earlier instrument. Schedule 1 repeals the whole of the Telecommunications (Carrier Licence Exemption , ICON, SSICT and ACTEW Networks) Determination 2013 (No. 1). That earlier instrument provided a similar exemption for the ICON network, the former SSICT network (which appears to have been the predecessor to the DDTS network), and the ACTEW networks. The 2013 instrument is now replaced by this 2023 determination.

The explanatory statement or other extrinsic materials (not provided) may explain why the instrument was updated. Possible reasons include: the renaming of SSICT to DDTS; the inclusion of Water Corporation infrastructure separately (previously perhaps part of ACTEW); and updated reporting requirements. The source does not provide any further amendment history. Users relying on the previous instrument should note it is completely repealed; any authorisations or arrangements under the old determination must be transitioned to comply with the new one.

No amendments to this instrument have occurred since its making in September 2023. It is currently in force.

The source text does not mention any litigation history regarding this instrument or its predecessor. As a legislative instrument made by the Minister, it could be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 or the common law, but there is no indication of any challenge. The narrow scope of the instrument and its operation as an exemption from a licensing requirement make it unlikely to attract litigation, except perhaps if the ACMA sought to enforce licensing obligations against a user claiming the exemption, leading to a dispute over whether conditions were met.

The predecessor instrument (2013 determination) may have been the subject of legal proceedings, but the source does not mention any. Without further information, we cannot assume any litigation. The instrument would be interpreted by the courts if a question arose about the meaning of terms such as “principally for the exercise or performance of a public function or duty” or “necessary or desirable for managing” utility services. Those terms are ambiguous and could generate interpretive disputes, but no cases are cited.

Several traps exist for users of this exemption. The most significant is the geographic limitation: the exemption applies only to infrastructure located within the Australian Capital Territory. If any portion of a line link extends outside the ACT, that link would not qualify, and the entire network might lose the exemption for any part that crosses the border. The definitions are careful: ICON infrastructure is “located in the Australian Capital Territory”; ActewAGL infrastructure is “located within the Australian Capital Territory”. This means the exemption does not cover inter-state connections, and any infrastructure that crosses into NSW would need separate licensing or a different exemption.

The definition of core function is another trap. An authority or institution that carries on a business as a core function (i.e., supplies carriage services to the public) cannot use the exemption for the purposes described in paragraphs 6(1)(b), 8(1)(b), and 9(1)(b). If a government entity operates a retail telecommunications service, it is excluded. This could affect entities like a communications authority that both provides internal government services and sells to the public.

The annual reporting obligation applies to each year the instrument is in force, even if the infrastructure is not used during that year. The wording of the condition says the report must set out information “for each line link … used in the reporting period”. If no links were used, the report would arguably contain no information. However, the condition does not say “must provide a report only if used”; it says must provide a report “setting out the following”. A cautious entity would still submit a report stating that no infrastructure was used, to avoid ambiguity and potential loss of the exemption for failure to comply with the condition. The ACMA may expect a report every year.

The written authorisation requirement is layered. For ICON infrastructure used by the ACT Crown, both the ICON Secretary and an authorised representative of the ACT Government must authorise. Getting both authorisations in writing could cause delays if the responsible persons are not coordinated. For DDTS infrastructure used by the Commonwealth, both the ACT Government and the ICON Secretary must authorise. The instrument does not specify whether authorisations can be standing or must be use-specific. To be safe, each discrete type of use should be covered by a written instrument.

The exemption does not extend to the supply of carriage services to the public. Even if the network is used for utility management, if the same network is also used to provide internet services to third parties, that use would require a carrier licence. The exemption is for the specific permitted uses only.

Entities relying on this exemption should take the following steps. First, confirm that the infrastructure in question falls within one of the four designations: ICON, DDTS, ActewAGL, or Water Corporation, and that it is wholly located in the Australian Capital Territory. For line links, ensure none cross the border into NSW. If they do, seek separate licensing or a different exemption.

Second, identify the permitted user and permitted purpose. The user must be the Crown, an ACT authority or institution (without a core function business), an ActewAGL entity, or a Water entity. The purpose must be public function, emergency management, or utility management as defined. Do not assume any government use qualifies; the instrument limits uses to those “principally for” the exercise or performance of a public function or duty. The word “principally” suggests the primary purpose must be public; ancillary commercial use could disqualify.

Third, obtain written authorisation before any use commences. For ICON uses by the ACT Crown, get authorisation from the ICON Secretary and from an authorised representative of the ACT Government. For ICON uses by an authority or institution, get authorisation from the ICON Secretary and from the authority’s own authorised representative. For ActewAGL and Water Corporation uses, get authorisation from the relevant corporation’s representative. For DDTS uses by the Commonwealth, get authorisation from the ACT Government and the ICON Secretary. Keep copies of all authorisations.

Fourth, establish a system to track the infrastructure used during each reporting period. Record for each line link: its geographic locations (suburb level or adjacent suburb if outside built-up areas), its capacity (e.g. bandwidth in Mbps or fibres), and the legal name and identifier (ABN or ACN) of each user at the applicable report date. The applicable report date is likely the end of the reporting period, but the instrument does not specify; use 30 June to align with standard reporting.

Fifth, prepare and submit the annual report to the ACMA by 30 September each year. The report must be provided by the following entities: for ICON, the ICON Secretary (or authorised representative); for DDTS, an authorised representative of the DDTS Government Group; for ActewAGL, each ActewAGL Corporation; for Water Corporation, each Water Corporation. If there is no use in a reporting period, consider submitting a letter or email stating that no infrastructure was used under the exemption, to satisfy the condition.

Sixth, review whether the user operates a business as a core function. If the entity supplies carriage services to the public (even if also performing government functions), it cannot rely on the exemption for the purposes in paragraphs 6(1)(b), 8(1)(b), or 9(1)(b). It may still use the infrastructure for public function purposes if it is an ACT Crown entity (not an authority) under (a) paragraphs.