Telecommunications (Statutory Infrastructure Providers—Exempt Real Estate Development Projects and Building Redevelopment Projects) Determination (No.1) 2020

The instrument relies on several defined terms that borrow from the parent Act. Project area takes its meaning for building redevelopment projects from section 360A of the Act, and for real estate development projects from subsections 372Q(2) and 372Q(6). In practice, a project area is the physical land or building footprint that is the subject of the development. The Start Date is the commencement of Part 1, Division 2 of Schedule 3 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020. This is a critical temporal threshold: only infrastructure fully installed on or after that date can qualify for the exemption. Contractual arrangement is defined expansively in section 4 to include a deed, contract, undertaking or any other form of legally binding arrangement. This broad definition ensures the instrument captures any legally enforceable promise, not just a formal written contract. The central concept is the qualifying fixed-line carriage service, which is defined in the Act (section 360A). It is a subset of eligible services, typically broadband-grade services delivered over fixed lines. The exemption only applies if the installed network is not technically capable of being used to supply such services. This is a factual determination about the network’s hardware capability, not a contractual restriction. The network must be used to supply standard telephone services in fulfilment of the universal service obligation (USO) under paragraph 9(1)(a) of the Telecommunications (Consumer Protection and Service Standards) Act 1999. That USO requires Telstra to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis. The network in question must be part of a fixed-line telecommunications network owned and operated by Telstra or a designated Telstra successor company. A designated Telstra successor company is defined in section 581G of the Act and refers to entities that have functionally separated from Telstra, such as the wholesale and retail arms. The exemption does not apply to networks owned by other carriers such as Optus, TPG, or Vocus. The instrument also imports definitions from the Act for carriage service, eligible service, hybrid fibre-coaxial network, NBN corporation, public mobile telecommunications service, qualifying carriage service, real estate development project (section 372Q), and building redevelopment project (section 360Y). These definitions are not replicated in the instrument but are incorporated by reference, so practitioners must cross-check the parent Act to determine whether a particular development qualifies. The exemption itself is not automatic; it applies only if all conditions in the relevant section are satisfied. There is no application process or ministerial discretion to grant exemptions on a case-by-case basis. The instrument is a blanket determination for projects that meet the specified criteria.

The primary duty bearer under the default law is any carrier that installs network infrastructure in a project area. That carrier would be forced to become the SIP. This instrument relieves carriers - in practice, Telstra and its designated successors - of that obligation, but only in the narrow circumstances described. Property developers and building owners are directly affected because their choice of telecommunications infrastructure provider determines whether the exemption applies. A developer who contracts with Telstra for a copper-only network that cannot deliver broadband can avoid triggering a SIP declaration, meaning NBN Co remains the default provider of last resort for high-speed services. That may simplify the developer’s obligations but also locks residents into NBN Co’s retail pricing and service quality for qualifying fixed-line services. Residents and end-users in exempt project areas are affected because they will not automatically gain an alternative SIP for broadband. They will continue to rely on NBN Co as the general service area provider, unless another carrier voluntarily declares the area a nominated service area later. This may reduce competitive choice for broadband services, as the exemption prevents the installing carrier from being compelled to offer wholesale or retail broadband. NBN Co itself is a significant stakeholder: the instrument preserves its default role in these areas, maintaining its revenue base and preventing cherry-picking of low-cost developments by fibre competitors. Competing carriers such as Optus or TPG are affected because they are excluded from the exemption; the instrument only applies to Telstra or its designated successors. Those carriers cannot use this exemption to avoid SIP obligations if they install infrastructure. The instrument thus entrenches Telstra’s legacy copper network as a special case, potentially distorting competition in the wholesale and retail fixed-line markets. The Telecommunications (Consumer Protection and Service Standards) Act is also relevant because the network must be used to fulfil the USO. Telstra’s USO obligations are funded through the universal service mechanism, so the instrument indirectly ties the exemption to publicly subsidised infrastructure. The instrument creates a carve-out that benefits Telstra (reduced compliance costs and SIP risk) and NBN Co (preserved service area) at the expense of competitive dynamics. Developers may benefit from lower upfront costs if copper is cheaper than fibre, but they lose the ability to rely on a competing SIP to deliver higher speeds. Residents may face slower upgrade paths because NBN Co is under no obligation to expedite fibre rollout in areas where copper is already installed.

This instrument does not create new duties. It removes a duty that would otherwise arise under subsections 360H(2) and 360H(4) of the Act. The default duty is for a carrier that has installed telecommunications network infrastructure under a contract to supply eligible services to premises in the whole project area to declare that area a provisional nominated service area within 10 business days after completion. That declaration triggers the carrier’s ongoing SIP obligations, including the duty to supply qualifying carriage services to end-users on request and to comply with standard terms and conditions set by the ACMA. The exemption operates as a complete defence to that duty. The rights conferred by the instrument are indirect: carriers have the right not to make the declaration; developers have the right to contract with Telstra for copper without worrying about the SIP trigger; end-users have no right to compel the installing carrier to become their SIP. Instead, they retain the right to receive standard telephone service from Telstra under the USO, and they retain the right to seek services from NBN Co or any other carrier that later chooses to declare the area. Critically, the exemption does not relieve Telstra or its successor of any other obligations under the Act, such as carrier licence conditions, numbering rules, consumer safeguards, or infrastructure access rules. The instrument also does not affect the ability of any carrier to voluntarily declare a nominated service area after installation. If a carrier later decides to upgrade the copper to fibre or to offer qualifying fixed-line services, it could make a declaration and become the SIP voluntarily. The exemption only prevents compulsion. The contractual arrangement between Telstra and the developer must not require Telstra to supply qualifying carriage services. That means the developer cannot bargain for broadband-grade service as part of the copper installation contract. If the contract requires Telstra to supply qualifying carriage services, the exemption fails, and the default duty revives. This creates a strong incentive for developers to limit contract scope to standard telephone services only, potentially leaving residents with slower infrastructure. The exemption is binary: either all conditions are met and it applies, or not. There is no partial exemption or waiver process. The ACMA has no role in granting or verifying exemptions; the instrument self-executes. However, in the event of a dispute, a court or tribunal would determine whether the conditions are satisfied. The instrument does not require notification to residents or regulators. This lack of transparency may create information asymmetry, as residents may not know whether their area is exempt and thus which entity is ultimately responsible for providing broadband.

The instrument itself does not contain penalty provisions. Penalties arise indirectly from the parent Act if a carrier fails to comply with the SIP declaration duty in circumstances where the exemption does not apply. Subsection 360H(2) is a civil penalty provision under the Act. A carrier that installs network infrastructure and does not declare a provisional nominated service area within 10 business days (where the exemption is not available) would be liable to a civil penalty. The maximum penalty for corporations is set by the Act’s general penalty framework, which can be significant (currently up to 10,000 penalty units per contravention, with a penalty unit currently at AUD 313). For a company, this could be over AUD 3 million per contravention. The ACMA is the primary regulator responsible for enforcing the Act’s SIP provisions. It can issue infringement notices, seek civil penalty orders from the Federal Court, or accept enforceable undertakings. A carrier that wrongly claims the exemption - for example, by asserting the network is not technically capable of qualifying fixed-line services when it is - may be found to have contravened the declaration duty. The burden of proof in civil penalty proceedings is on the balance of probabilities. A carrier would need to demonstrate that all conditions in section 5 or 9 are met. This includes showing that the network was fully installed on or after the Start Date, that the contractual arrangement does not require supply of qualifying carriage services, and that the network is not technically capable of delivering those services. The obligation to supply standard telephone services under the USO is a separate statutory duty under the Telecommunications (Consumer Protection and Service Standards) Act 1999. Breach of that duty carries its own penalties, which are enforced by the ACMA. The instrument does not affect those penalties. There is no private right of action for end-users under the SIP provisions. However, end-users could potentially make a complaint to the ACMA if they believe a carrier is wrongly avoiding SIP obligations. The ACMA can investigate and take enforcement action. The instrument may also be challenged in judicial review proceedings for jurisdictional error if a carrier or the ACMA misinterprets the exemption conditions. Given the factual nature of the conditions (technical capability, contractual terms, installation date), disputes are likely to be fact-intensive. Enforcement risk is highest for carriers that install borderline infrastructure, such as copper that could be upgraded to fibre with a simple modification, or networks that include both copper and fibre elements. The instrument’s reliance on “not technically capable” creates a potential loophole: carriers might argue that a network is not capable if fibre would require a separate build, even if the copper itself is replaced. Courts may need to interpret this phrase. The ACMA’s enforcement guidance and any industry codes of practice would be relevant.

This instrument operates as an exception to the Telecommunications Act 1997, specifically subsections 360H(2) and 360H(4). It does not amend the Act; it merely creates a statutory exemption. The Act continues to apply in full to projects that do not meet the exemption conditions. The instrument refers to the Telecommunications (Consumer Protection and Service Standards) Act 1999, which imposes the universal service obligation on Telstra to supply standard telephone services. The exemption only applies if the network is used to fulfil that obligation. This links the telecommunications regulatory framework with the consumer protection framework. The Start Date ties the instrument to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020, which introduced the ministerial exemption power. Without that amending Act, the Minister would have had no power to make this determination. The instrument is made under subsection 33(3A) of the Acts Interpretation Act 1901, which deals with legislative instruments. This means the instrument must be registered on the Federal Register of Legislation, subject to parliamentary disallowance, and subject to sunsetting after 10 years unless re-made. The competition and consumer law dimensions are indirect. The instrument preserves NBN Co’s default role, which may affect competition in the wholesale fixed-line market. The Competition and Consumer Act 2010 and Part XIB of the Telecommunications Act (anti-competitive conduct) remain applicable. Carriers cannot use the exemption as a shield for anti-competitive agreements. The instrument does not affect access regimes under Part XIC of the Telecommunications Act, which deals with declarations of services and standard access obligations. NBN Co may still be subject to access obligations for its services, but those are independent of this instrument. The instrument also references terms defined in the Act such as “hybrid fibre-coaxial network,” “public mobile telecommunications service,” and “designated Telstra successor company.” Practitioners must cross-reference the Act for precise definitions. The instrument does not interact with state or territory planning laws, but developers must still comply with any state requirements for telecommunications infrastructure. The instrument is a Commonwealth legislative instrument, so it overrides any inconsistent state or territory law under section 109 of the Constitution, though that is unlikely in practice. The Act’s provisions on carrier licensing, numbering, and consumer codes are unaffected. This instrument is a focused carve-out that operates within a larger regulatory ecosystem, and its effect is limited to the narrow scenario of Telstra’s copper USO networks in new developments.

This instrument is titled as Determination (No.1) 2020. Based on its text and the search results provided, there is no indication of any amendment to it since its commencement. It was made under enabling powers inserted by the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020, which itself amended the Telecommunications Act 1997 to add subsections 360H(3A) and 360H(5A). The instrument appears to have been made shortly after that amending Act received Royal Assent. The Start Date is defined as the day upon which Part 1, Division 2 of Schedule 3 to that amending Act comes into effect. The amending Act likely commenced by proclamation or on a fixed date. The instrument’s registration date on the Federal Register of Legislation would confirm its exact commencement. The compilation at the end of the provided text includes an editorial change: the original section 4 had a “(1)” numbering that was omitted to bring it into line with legislative drafting practice. That is a formal drafting change, not a substantive amendment. No other amendments have been identified. The instrument has not been repealed or sunsetted. Given that it was made in 2020 and that telecommunications technology and regulation evolve rapidly, there may be policy pressure to review or replace it. For example, the increasing reliance on fibre and the potential phase-out of copper networks could make the exemption obsolete. The instrument’s sunsetting date under the Legislation Act 2003 is 10 years from commencement, likely around 2030. To remain in force, it must be re-made or extended before then. Any future amendments would need to be made by the Minister by legislative instrument. Practitioners should check the Federal Register of Legislation for the latest version before relying on the instrument. The absence of amendment history suggests stability, but it also means the instrument has not been updated to reflect any subsequent changes in the Act’s definitions or in the telecommunications market. The cross-referenced definitions in the Act may have changed since 2020. For instance, “qualifying fixed-line carriage service” or “designated Telstra successor company” might have been amended. Practitioners should verify the current Act definitions.

Based on the provided material, there is no recorded litigation specifically concerning this Determination. The instrument is narrow in scope and has likely not been challenged in court. However, several potential grounds for judicial review or civil penalty proceedings can be identified. First, the phrase “not technically capable of being used to supply qualifying fixed-line carriage services” in paragraph (b)(iii)(A) of sections 5 and 9 is factually ambiguous. A carrier and the ACMA might disagree on whether a particular copper network is technically capable. For example, a copper network that could theoretically be upgraded to support VDSL or fibre-to-the-node might be argued to be capable, or not. A court would need to interpret “technically capable” in the statutory context. This has not been litigated yet. Second, the requirement that the contractual arrangement “does not require” Telstra to supply qualifying carriage services could be contentious. If the contract is silent on the type of carriage service, it might be argued it does not require, or conversely, that an implied term or the context requires it. Ambiguity in the drafting could invite litigation. Third, the instrument’s validity depends on the enabling powers in the Act being constitutionally valid. The Telecommunications Act is supported by the corporations power and the communications power, so a constitutional challenge is unlikely to succeed but is not impossible. Fourth, if the ACMA seeks a civil penalty against a carrier for failing to declare an area, the carrier would defend on the basis that the exemption applies. The Federal Court could then interpret the exemption conditions in the first instance. No such case appears in the public record. Fifth, the instrument does not provide for merits review, so any challenge would likely be for judicial review under the Administrative Decisions (Judicial Review) Act 1977 or section 39B of the Judiciary Act 1903. An applicant would need to establish jurisdictional error, such as misinterpretation of the instrument or failure to consider a relevant matter. This is a high bar. Finally, residents could theoretically bring a class action if they suffer harm from being deprived of a competitive SIP, but the instrument itself is a legislative instrument not subject to private suit. The litigation history is therefore a blank slate, but practitioners should be aware of the interpretive risks that could give rise to future disputes.

Several traps lurk for the unwary practitioner. The biggest trap is the “not technically capable” condition. A network that is technically capable of supplying qualifying fixed-line carriage services - even if it is not actually used for that purpose - will not qualify for the exemption. This is a factual test, not a contractual one. For example, a copper network that could support ADSL2+ at sufficient speeds to be classified as a qualifying fixed-line carriage service would be capable, even if the service is never activated. The definition of qualifying fixed-line carriage service is in the Act and may change. Practitioners need to check the current definition. The second trap is the installation date condition. The infrastructure must be fully installed on or after the Start Date. If installation began before the Start Date but finished after, it may be treated as not fully installed after, depending on the interpretation of “fully installed.” Partial installation may disqualify the exemption. Third, the contractual arrangement must not require Telstra to supply qualifying carriage services in any part of the project area. This means a single contract that includes a clause requiring broadband in one lot would disqualify the entire project. Developers often include standard telecommunications provisions in their contracts; these must be carefully reviewed. Fourth, the exemption only applies to networks owned and operated by Telstra or a designated Telstra successor company. Networks owned by other carriers, including wholesale providers that lease Telstra infrastructure, do not qualify. A developer who contracts with a third-party carrier that uses Telstra’s copper under a wholesale agreement may not qualify. Fifth, the network must be used to supply standard telephone services in fulfilment of the USO. If the network is used for other purposes (e.g., private internal phone system, not a public service), it may not qualify. The USO obligation is on Telstra, not on the developer, but the network must be part of fulfilling that obligation. Sixth, the instrument does not require any administrative action. There is no form to file, no ACMA approval to seek. This creates uncertainty because no authority confirms that the exemption applies. A carrier relying on the exemption does so at its own risk. If the ACMA later disagrees, the carrier faces penalty liability. Seventh, the exemption does not apply to hybrid fibre-coaxial (HFC) networks or other non-copper technologies. Only copper networks used for USO standard telephone services qualify. This is a narrow carve-out. Eighth, the instrument is silent on the effect of upgrades. If Telstra later upgrades the copper to fibre or installs fibre alongside copper, the exemption may cease. The duty to declare may then arise at the time of upgrade. This ambiguity could catch carriers off guard. Ninth, the Start Date is tied to commencement of an amending Act that may be difficult to identify precisely. Practitioners must determine the exact date. Tenth, the cross-referenced definitions in the Act may have been amended since 2020. For example, “qualifying fixed-line carriage service” might now include some copper-based services that earlier did not. A practitioner relying on old definitions may give incorrect advice.

Compliance with this instrument is essentially a matter of correctly determining whether the exemption applies and then taking no further action (the exemption is automatic). However, prudent carriers and developers should document their reasoning to defend against future ACMA scrutiny. The following steps are recommended. First, confirm that the project is a “real estate development project” or “building redevelopment project” as defined in the Act. This includes verifying that the project area is correctly identified. Second, confirm that the network is owned and operated by Telstra or a designated Telstra successor company. Obtain evidence of ownership. Third, confirm that the network is a fixed-line copper network that is not technically capable of supplying qualifying fixed-line carriage services. This may require engineering assessments: does the copper have the physical capacity to carry broadband at speeds that meet the definition? Obtain a written technical opinion from a qualified engineer. Fourth, confirm that the network is used to supply standard telephone services in fulfilment of the USO. This will typically be automatic if the network is part of Telstra’s public switched telephone network, but documentation from Telstra stating that the network is part of its USO obligation is advisable. Fifth, confirm that the network was fully installed on or after the Start Date. Keep records of the installation date, including certificates of occupancy, installation completion reports, and invoices. Sixth, review the contractual arrangement between Telstra and the person responsible for the project. Ensure that the contract includes an express clause that Telstra is not required to supply qualifying carriage services within the project area. Avoid any clause that could be interpreted as requiring broadband. Seventh, maintain a file containing all the above evidence. This file should be retained for at least the period of the relevant limitation period for civil penalty proceedings (usually six years). Eighth, do not assume that the exemption applies simply because copper is used. Each condition must be satisfied independently. Ninth, if there is any doubt about technical capability, seek a legal opinion. The risk of a wrong assessment is significant. Tenth, consider notifying the ACMA voluntarily of the claimed exemption. While not required, it may reduce the risk of later penalty. The ACMA has no obligation to respond, but if it raises concerns early, the carrier can adjust. Eleventh, if the project involves multiple building stages, each stage may need separate assessment. The exemption applies to the project as a whole, but definitions of “project area” may lump multiple stages together. Finally, if the network is later upgraded to become capable of qualifying fixed-line services, revisit the exemption. At that point, the carrier likely becomes subject to the declaration duty. Plan for that scenario in advance to avoid non-compliance.