Commonwealth Numbered Regulations - Explanatory Statements

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TELECOMMUNICATIONS AMENDMENT REGULATIONS 2005 (NO. 1) (SLI NO 176 OF 2005)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2005 No. 176

 

Issued by the Authority of the Minister for Communications, Information Technology and the Arts

 

Telecommunications Act 1997

 

Telecommunications Amendment Regulations 2005 (No. 1)

 

Subsection 594(1) of the Telecommunications Act 1997 (the Act) provides that the Governor-General may make regulations, consistent with the Act, prescribing matters required or permitted by the Act to be prescribed; or necessary or convenient to be prescribed for the carrying out or giving effect to the Act.

 

The accompanying Regulations replace the outdated reference to the Timor Gap Treaty in the Telecommunications Regulations 2001 (the Principal Regulations) with a reference to the Timor Sea Treaty which superseded the Timor Gap Treaty.

 

Schedule 3 to the Act deals with the powers and immunities of telecommunications carriers and, in particular, allows a carrier to:

·          enter on, and inspect, land to determine whether the land is suitable for its purposes (Division 2 of Part 1 of Schedule 3); 

·          enter on, and occupy, land for the purposes of installing certain authorised facilities (Division 3 of Part 1 of Schedule 3); and

·          occupy land for the purposes of maintaining a facility (Division 4 of Part 1 of Schedule 3).

 

When a carrier conducts activities authorised by Schedule 3, it must do so subject to certain given conditions.  One of these conditions is that if a carrier engages in an activity that is covered by Schedule 3, it must do so in a manner that is consistent with Australia’s obligations under a ‘listed international agreement’ that is relevant to the activity (clause 13 of Schedule 3).  Clause 2 of Schedule 3 defines ‘listed international agreement’ to mean an international agreement specified in the regulations.

 

Regulation 11.1 of the Principal Regulations provides that for the purposes of the definition of ‘listed international agreement’ in clause 2 of Schedule 3 to the Act, an international agreement mentioned in Schedule 1 to the Principal Regulations is a listed international agreement.  Item 18 of that Schedule prescribes the Timor Gap Treaty (being the Treaty defined by subsection 5(1) of the Petroleum (Timor Gap Zone of Cooperation) Act 1990) as a listed international agreement.  This was a treaty between Australia and Indonesia relating to petroleum operations in the “Zone of Cooperation”, which is a defined area between Australia and East Timor.

 

East Timor separated from Indonesia on 26 October 1999.  Since then, Indonesia has had no jurisdiction over East Timor or the maritime zones generated by East Timorese territory, nor over petroleum operations in the former Zone of Cooperation. Upon East Timor’s separation from Indonesia, Australia and the United Nations Transitional Administration in East Timor (UNTAET) entered into an agreement whereby UNTAET assumed Indonesia’s rights and obligations under the Timor Gap Treaty.  This allowed Australia and East Timor to benefit from the continuation of exploration and production activities in an area of overlapping territorial claims in the Timor Sea.

 

East Timor became independent on 20 May 2002 and on that date Australia and East Timor signed the Timor Sea Treaty. The Treaty is a provisional arrangement pending permanent delimitation of maritime boundaries between Australia and East Timor.

 

The Timor Sea Treaty provides a framework for the regulation of petroleum activities in the Joint Petroleum Development Area (JPDA) for the benefit of the peoples of Australia and East Timor.  The JPDA is an area of the Timor Sea between Australia and East Timor.  The Timor Sea Treaty does not seek to regulate all activities that take place in the JPDA – its scope is limited and it regulates only those activities relating to the exploration and exploitation of petroleum. 

 

The Timor Sea Treaty does not contain any express provisions in relation to telecommunications.  However, there is the potential for the bodies that administer the Timor Sea Treaty to establish new requirements relating to petroleum activities in the JPDA.  Such new requirements could relate to communications in the JPDA, or could raise communications issues in areas outside the JPDA. 

 

In order to ensure that Australia is in a position to give effect to any requirements relating to communications that may arise under the Timor Sea Treaty, it is necessary to specify the Timor Sea Treaty in the Principal Regulations as a listed international agreement.

 

The accompanying Regulations replace the reference to the Timor Gap Treaty in item 18 in Schedule 1 to the Principal Regulations with a reference to the Timor Sea Treaty, being the Treaty defined in subsection 5(1) of the Petroleum (Timor Sea Treaty) Act 2003, as amended from time to time.

 

The accompanying Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA) (see paragraph 6(a) of the LIA).  The Australian Communications Authority was consulted about the accompanying Regulations, however, wider consultation was considered unnecessary due to the minor and machinery nature of the accompanying Regulations (see paragraph 18(2)(a) of the LIA).

 

The accompanying Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.

 

 


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