Telecommunications (Carrier Licence Exemption—Use for specified Queensland rail and electricity services) Determination 2021

Carrier licence. Under the Telecommunications Act 1997, a carrier licence is required to own or operate a telecommunications network or facility used to supply a carriage service to the public (section 42). This instrument grants an exemption from that requirement, but only for the specific infrastructure and service combinations defined.

Designated Communications Infrastructure. This means telecommunications infrastructure situated in Queensland and owned by Aurizon, Queensland Treasury Holdings (QTH), Queensland Rail, or a related body corporate of any of those entities (section 5 definition). It is the infrastructure on which the first exemption operates, but only when used by Aurizon, Queensland Rail or their related bodies to supply Permitted Electricity-related Services.

Powerlink Communications Infrastructure. Similarly, this is telecommunications infrastructure in Queensland owned by Powerlink. It is the infrastructure on which the second exemption operates, but only when used by Powerlink to supply Permitted Rail-related Services.

Permitted Electricity-related Services. This is any carriage service provided to Powerlink that is “necessary or desirable” for managing the generation, transmission, distribution or supply of electricity, or charging for that supply (section 5). The phrase “necessary or desirable” gives some operational flexibility but may also create uncertainty about the scope of the exemption. It clearly excludes services to other parties or for other purposes, such as general internet access provided to Powerlink employees as a benefit unrelated to electricity management.

Permitted Rail-related Services. This is any carriage service provided to Aurizon, Queensland Rail, or a related body corporate of either that is “necessary or desirable” for the workings of train services (section 5). Again, the phrasing is broad enough to cover train control, signaling, communications, and operational data, but likely does not extend to residential broadband services for rail employees.

Related body corporate. This term takes its meaning from the Corporations Act 2001 (Cth) (section 5). It includes parent companies, subsidiaries, and other entities within a corporate group. This extends the exemption beyond the named entities to their corporate relatives, but only if those relatives own infrastructure or supply services falling within the definitions.

Report date. Defined as 30 May of each calendar year (section 5). This is the relevant date for the annual reporting condition.

Repeal date. The instrument is repealed on 1 July 2028 (section 4). This sunset clause means the exemption is time limited. After that date, the default position under the Act resumes unless a new instrument is made.

The exemption directly benefits a small group of Queensland government‑related entities. Aurizon Holdings Limited is a publicly listed rail freight company that was originally a government business enterprise but is now privatised, though it retains close ties to Queensland infrastructure. Queensland Rail Limited is a government owned corporation (declared under the Government Owned Corporations Act 1993 (Qld)). Powerlink is the Queensland Electricity Transmission Corporation Limited, also a government owned corporation. QTH (Queensland Treasury Holdings Pty Ltd) is a government owned corporation that holds certain assets. The related bodies of these entities also fall within the exemption if they own infrastructure in Queensland.

Indirectly, the exemption affects the users of the permitted services. Powerlink receives telecommunications services from Aurizon, Queensland Rail or their related bodies without those suppliers needing a carrier licence. Similarly, Aurizon and Queensland Rail receive services from Powerlink. This may reduce the cost of those services by eliminating the regulatory overhead of carrier licensing. However, it also means that these entities are not subject to the full carrier licensing regime, which includes obligations such as the requirement to supply standard telephone services, undertake carrier separation, or contribute to the Universal Service Obligation fund. The exemption is therefore a cost-saving measure for these entities, potentially passed through to electricity consumers and rail users.

The ACMA is affected as the recipient of annual reports under section 9. It must process and store reports on infrastructure locations, technology types, and users. This reporting obligation imposes a modest compliance cost on Aurizon and Powerlink, who must compile and submit these reports within 30 days after each 30 May.

Private telecommunications carriers may be indirectly affected. The exemption allows state‑connected entities to self‑supply operational telecommunications without a licence, which could reduce demand for services from licensed carriers. However, the exemption is narrow and confined to internal, operational services for specific purposes. It does not permit the supply of carriage services to the general public, nor does it create a commercial telecommunications business. Therefore, the competitive distortion is limited to a very specific segment.

Service providers who lease or buy telecommunications from these exempt entities are not directly affected, but they should be aware that the supplier does not hold a carrier licence and therefore is not subject to the same consumer protections or network‑interconnection obligations under the Act.

Rights. The primary right conferred by this instrument is the exemption from section 42 of the Act. Aurizon, Queensland Rail, Powerlink, and their relevant related bodies may use their designated telecommunications infrastructure in Queensland to supply the defined permitted services without holding a carrier licence. This reduces administrative and financial burdens. The exemption is not a general licence to operate a telecommunications network; it is a specific carve‑out for a limited set of activities. The right is conditional on compliance with the reporting conditions in section 9.

Duties. The only duties imposed by the instrument are annual reporting obligations. Under section 9(1), Aurizon must provide a written report to the ACMA within 30 days after each report date (30 May) while the instrument is in force. The report must contain two elements: (a) the locations of the Designated Communications Infrastructure and the technology type(s) at each location as at the report date; and (b) the legal name and associated identifier (such as ABN or ACN) of each user of that infrastructure as at the report date. Under section 9(2), Powerlink must provide the same information for the Powerlink Communications Infrastructure, but only for users receiving Permitted Rail-related Services. Note the asymmetry: Aurizon reports on infrastructure used for supplying electricity services to Powerlink, while Powerlink reports on infrastructure used for supplying rail services to Aurizon and Queensland Rail. There is no reciprocal reporting obligation on Queensland Rail itself, except to the extent it is covered as a related body or user.

The reporting duty is annual and time‑bound. Failure to submit a report on time may cause the exemption to cease to apply for the period of non‑compliance, since the exemption is expressed to be “subject to the conditions”. If the condition is not performed, section 42 applies, and the entity may be operating without a licence unlawfully.

There are no other affirmative duties in the instrument: no requirement to publish service offers, no consumer safeguards, no numbering plan compliance, no sector‑specific privacy obligations (though general privacy laws apply). The entities are not required to connect to other carriers or to provide wholesale services, though they may choose to do so voluntarily.

Both Aurizon and Powerlink should ensure they have systems in place to capture the required data fields. The ABN or ACN of each user must be recorded; for individual users (if any), the instrument does not specify an alternative identifier, but the ACMA would likely accept a name and address as a practical identifier.

The instrument itself does not create or specify penalties. It operates by granting an exemption from the licensing requirement in section 42 of the Act, and that exemption is conditioned on compliance with the reporting conditions in section 9. If a condition is breached, the exemption ceases to apply for that breach. Consequence: the entity is then in the same position as any person using a telecommunications network to supply a carriage service without a carrier licence, which is a contravention of section 42.

The enforcement regime for breaches of the Act is found in the Telecommunications Act 1997 itself. Operating a carriage service without a carrier licence can attract civil penalties and, in some cases, criminal liability. The maximum civil penalty for a body corporate for a contravention of section 42 is 10,000 penalty units (as at 2021, a penalty unit is $222, so $2.22 million). Criminal offences may also apply if the conduct is engaged in knowingly or recklessly. The ACMA may issue infringement notices, seek injunctions, or pursue court orders.

The ACMA is the primary enforcement body. It will receive the annual reports and can verify compliance. If a report is not submitted on time, the ACMA would likely first enquire with the entity. If the entity continues to supply services after the exemption has been lost, the ACMA may take action. The risk is not trivial: Aurizon and Powerlink could inadvertently expose themselves to significant penalty risk if they miss a reporting deadline and continue operations.

The instrument does not contain any provision for granting relief or extensions for late reporting. The condition is framed absolutely. Practitioners should advise clients to treat the reporting deadline as strict, given the “subject to” language in sections 7 and 8. There is no power in the ACMA to waive the condition; only a new determination could alter the conditions.

Other enforcement possibilities include actions by competitors or third parties who allege that the exemption is being misused. For example, if Aurizon supplied a carriage service to an entity other than Powerlink using the Designated Communications Infrastructure, that would fall outside the “Permitted Electricity‑related Services” definition and likely be an unlicensed operation. A competitor licensed carrier might lodge a complaint with the ACMA.

The instrument exists solely within the framework of the Telecommunications Act 1997 (Cth). It is made under paragraph 51(1)(c) of that Act, which empowers the ACMA to determine that section 42 does not apply to specified persons or uses. Therefore, it is a form of subordinate legislation that carves out a specific exemption from the general licensing prohibition.

The exemption does not affect any other obligations under the Telecommunications Act. For example, the entities must still comply with laws relating to spectrum licensing (the Radiocommunications Act 1992), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (if applicable), and the Telecommunications (Interception and Access) Act 1979. Additionally, the Telecommunications Act has provisions on network infrastructure access, numbering, and emergency call handling that may still apply. The instrument only exempts from the carrier licensing requirement; it does not exempt from the obligation to obtain a telecommunications licence under the Radiocommunications Act for any radio equipment used.

The definitions of “related body corporate” and the entities themselves come from the Corporations Act 2001 (Cth). This means the scope of the exemption can change if corporate restructures occur. For example, if Aurizon acquires a new subsidiary that owns telecommunications infrastructure in Queensland, that subsidiary would likely fall within the exemption (provided it uses the infrastructure for Permitted Electricity-related Services). However, the converse also applies: if an entity ceases to be a related body corporate, the exemption may no longer apply.

State law interactions are not addressed in the instrument, but are relevant. Powerlink and Queensland Rail are declared government owned corporations under the Government Owned Corporations Act 1993 (Qld). The instrument does not alter any state legislation; it merely references those entities. State planning and land use laws may apply to the installation of telecommunications infrastructure. Nothing in the instrument overrides state law.

Competition and consumer law may also be relevant. If the exempted entities were to use the exemption to cross-subsidise unrelated commercial telecommunications activities, the Australian Competition and Consumer Commission (ACCC) could potentially investigate anti‑competitive conduct under the Competition and Consumer Act 2010 (Cth). However, the narrow scope of the exemption makes this unlikely in practice.

The sunset clause in section 4 means the instrument will cease to have effect on 1 July 2028. After that date, the entities must either obtain a carrier licence or seek a new exemption. Potential interactions with other exemptions under s 51 of the Act should be considered; for example, if the ACMA makes a broader exemption before 2028.

The instrument as provided shows no amendment history. It is the original version made in 2021 (the name indicates 2021). No amending instruments are listed or referenced. The instrument appears to be a single, standalone determination. It is possible that no amendments have been made to date.

The instrument is self‑contained and concise. It has only nine operative sections (sections 1, 3, 4, 5, 7, 8, 9; note sections 2 and 6 are absent from the text - likely due to standard drafting conventions where certain sections are reserved or omitted). The lack of amendment history suggests the exemption has not required adjustment since its commencement.

Given that the instrument is due for repeal on 1 July 2028, practitioners should monitor whether the ACMA proposes to extend, replace, or amend it before that date. Any amendment would likely be a new determination under s 51(1)(c), not an amendment to this instrument, though the Act permits amendments. If the instrument is amended, the expiration date may also be amended.

The instrument provides no indication of any transitional provisions or savings. It comes into force on the day it is registered (presumably 2021) and is repealed on 1 July 2028. The absence of amendments means that the reporting and exemption provisions have remained stable.

The instrument text does not reference any litigation. No cases are cited. Given the niche scope of this exemption, it is highly unlikely that there has been any litigated challenge to it. The exemption is unlikely to be controversial, as it reduces regulatory burden for state‑connected entities and does not directly harm competitors.

Potential future litigation could arise if the ACMA argues that an entity has lost its exemption due to non‑compliance with the reporting condition, and the entity disputes that it has lost the exemption. That dispute would hinge on the meaning of “subject to the conditions”. An administrative appeal may go to the Administrative Appeals Tribunal (now the Administrative Review Tribunal) and then to the Federal Court. Alternatively, a third party might bring an action alleging that an entity is operating without a licence, arguing that the services provided fall outside the definitions of Permitted Electricity‑related Services or Permitted Rail‑related Services.

There is also a possibility of a constitutional challenge if the Commonwealth’s power to grant exemptions were limited, but that is highly unlikely given the broad telecommunications power. No such challenge has materialised.

For due diligence, practitioners should search the Federal Court judgments and ACMA decisions for any case involving Aurizon, Queensland Rail, or Powerlink relating to carrier licensing. As at the date of this instrument, nothing notable appears. The litigation history is effectively blank.

Sunset looms. The instrument is automatically repealed on 1 July 2028. Entities currently benefiting from the exemption must plan for that date. If they still wish to supply these services without a carrier licence after that date, they need a new exemption determination. The ACMA may not issue a new one, or may impose stricter conditions. Alternatively, the entities can apply for a carrier licence, which brings additional compliance costs including a levy, annual fees, and regulatory obligations. Do not assume the exemption will be extended.

Narrow service scope. The exemption only covers services “necessary or desirable” for electricity management or workings of train services. This is subjective. If a service is not strictly necessary or desirable for those defined purposes, but is nevertheless provided, the exemption may not apply. For example, providing broadband internet to Powerlink for corporate email may be arguable as “desirable” for electricity management, but the safer interpretation is that it must directly support the generation, transmission, distribution or supply of electricity. Legal advice should be sought for borderline services. The risk is that if a service falls outside the definition, the entity is operating without a licence.

Geographic limitation. The infrastructure must be situated in Queensland. If any of the entities own telecommunications infrastructure outside Queensland, that infrastructure is not covered. Similarly, if services are provided from Queensland to a user outside Queensland, the exemption may still apply as long as the infrastructure is in Queensland, but the supply to a non‑Queensland entity might not be permitted under the definitions if the recipient must be Powerlink or Aurizon/Queensland Rail. For example, Powerlink supplying Permitted Rail‑related Services to a related body of Aurizon that is located outside Queensland might still be permitted if the infrastructure is in Queensland and the service is provided to Aurizon or its related body. Careful attention to the statutory chain is required.

Related body corporate expansion. The exemption extends to a “related body corporate” of Aurizon, QTH, Queensland Rail, or Powerlink. This broad category can include many entities, potentially hundreds. Each such entity that owns infrastructure in Queensland could fall within the exemption. However, they must use the infrastructure for the specified permitted services. There is no list of permitted related bodies. This creates uncertainty and a risk of over‑reliance. The entity should confirm that it is a related body corporate under the Corporations Act. If the corporate structure changes (e.g., an entity is sold out of the group), the exemption ceases for that entity immediately.

Reporting condition is strict. The condition uses “must provide” and is tied to a specific report date (30 May). The report must be given within 30 days after the end of each report date. If a report is late, the exemption may be lost. The instrument does not allow for extensions. The ACMA may not enforce immediately, but the legal risk remains. Remember that the exemption is “subject to the conditions” - non‑compliance arguably revokes the exemption.

No public register. The instrument does not require the ACMA to publish the reports or create a public register. Therefore, third parties cannot easily verify whether an entity is complying. However, the ACMA may use the reports for enforcement.

Only for supply of permitted services, not for own use. The exemption applies for “the supply of” Permitted Electricity‑related Services or Permitted Rail‑related Services. It does not cover the entity using its own infrastructure for its own internal communications unrelated to those services. For example, if Aurizon uses its infrastructure for internal administrative calls not related to supplying services to Powerlink, that falls outside the exemption and may require a carrier licence. However, it is possible that those internal uses are not considered “supply” to the public, so section 42 might not be triggered anyway. The exemption is primarily needed because supplying services to another entity is considered supply to the public. Internal use may not need an exemption. Nonetheless, the distinction is important.

Asymmetry of reporting. Aurizon reports on infrastructure used for electricity services; Powerlink reports on infrastructure used for rail services. But what if Queensland Rail owns infrastructure and supplies it for rail services? Under the exemption in section 7, Queensland Rail can supply permitted electricity‑related services to Powerlink; but the reporting condition only applies to Aurizon, not to Queensland Rail. This creates a gap: Queensland Rail could potentially use its own infrastructure for electricity services without any reporting obligation. The same gap exists for any related body corporate that is not Aurizon or Powerlink. This may be an oversight or intentional. Practitioners should check whether any entity not explicitly required to report is still relying on the exemption.

For an entity intending to rely on this exemption, the compliance steps are straightforward but must be followed precisely.

Step 1: Confirm eligibility. The entity must be Aurizon, Queensland Rail, Powerlink, or a related body corporate of Aurizon, Queensland Rail, or (for the second exemption) a related body corporate of Aurizon or Queensland Rail as a recipient of services. The exemption for use of Designated Communications Infrastructure (section 7) is available to Aurizon, Queensland Rail, or a related body corporate of either. The exemption for use of Powerlink Communications Infrastructure (section 8) is available to Powerlink only.

Step 2: Identify the relevant infrastructure. The infrastructure must be owned by the entity (or a related body in the first exemption), situated in Queensland, and must be telecommunications infrastructure. Ensure that the infrastructure is used to supply either Permitted Electricity‑related Services (to Powerlink) or Permitted Rail‑related Services (to Aurizon, Queensland Rail, or related bodies). If the infrastructure is used for any other purpose, including mixed use, the exemption may still apply if the prohibited supply is separable. However, if the infrastructure is used to supply services for non‑permitted purposes, the exemption might be jeopardised for the entire infrastructure. Legal advice on apportionment is advisable. The entity should maintain records showing the separate use.

Step 3: Draft and submit annual reports. The reporting condition applies to Aurizon (under s 9(1)) for the first exemption and to Powerlink (under s 9(2)) for the second exemption. The report must be provided to the ACMA within 30 days after 30 May of each year (i.e., by 29 June). The report must contain: (a) the locations of the infrastructure and the technology type(s) at each location as at the report date (30 May); and (b) the legal name and associated identifier (ABN or ACN) of each user of the infrastructure as at the report date. Note that the user is the entity receiving the Permitted service, not necessarily the end user. For the first exemption, the user would be Powerlink; for the second, the user would be Aurizon, Queensland Rail, or their related bodies. If there are multiple users (e.g., multiple train operators or electricity management functions), all must be listed. The report should be prepared as at 30 May each year, capturing a snapshot of infrastructure and users on that day. Changes after that date need not be reported until the next report. The report should be in writing; the instrument does not specify electronic format, but the ACMA likely expects a digital submission. Ensure the report is signed by a person with authority.

Step 4: Monitor ongoing compliance. The entity should ensure that the infrastructure continues to be used only for the permitted services. If the entity later supplies a service outside the definition, it should immediately cease that activity or obtain a carrier licence. Also, if the corporate structure changes affecting related body corporate status, reassess eligibility. Keep internal records of infrastructure inventory and users to facilitate next year’s report.

Step 5: Plan for sunset. Before 1 July 2028, the entity should decide whether to apply for a carrier licence or to seek a new exemption determination from the ACMA. The exemption will not automatically renew. Stakeholders should engage with the ACMA early if they wish to have the exemption extended or remade. The instrument offers no transitional period after repeal. From 1 July 2028, operating without a licence is unlawful unless a new exemption is in force.

Step 6: Consider other regulatory obligations. This exemption does not cover spectrum licensing, numbering, or other aspects of telecommunications law. Ensure separate compliance with the Radiocommunications Act for any radio equipment, and with any state or local laws regarding infrastructure installation. Also, if the entity is a government owned corporation, any state‑government reporting or governance requirements remain unaffected.