Guide - Applying for a submarine cable installation permit

APRIL 2017

CanberraRed Building Benjamin OfficesChan Street Belconnen ACT

PO Box 78Belconnen ACT 2616

T +61 2 6219 5555F +61 2 6219 5353

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PO Box 13112Law Courts Melbourne VIC 8010

T +61 3 9963 6800F +61 3 9963 6899

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T +61 2 9334 7700 or 1800 226 667F +61 2 9334 7799

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Introduction

Permits to install submarine cables

Terminology 2

What type of permit is required? 3

What does it cost to apply for a permit? 4

Applying for a permit 4

Processing permit applications 4

Timeframes for processing an application 4

Requests for additional information 5

Notification of change of circumstances 5

Treatment of information 5

Consultation on permit applications 5

Duration of a permit 6

Preparing an application for a permit

Part A—applicant details 7

Part B—proposed installation information 7

Part C—conditions applicable to the installation of submarine cables 10

Part D—Applicant declaration 10

Decision to grant or refuse a permit

Matters to be considered by the ACMA in making a decision about a permit application 11

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The ACMA’s general principles for decision-making 11

Review rights 12

Suspension or cancellation of a permit

Process for suspension or cancellation 13

Review rights 13

Checklist for permit applications

More information

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IntroductionThis guide is intended to assist carriers in applying for submarine cable installation permits under Schedule 3A to the Telecommunications Act 1997 (the Act). It outlines the legislative requirements governing the process of applying for a permit and the ACMA’s policies for administering this process.

This guide is not a substitute for the Act and is intended to be read in conjunction with Schedule 3A to the Act.

For information about the submarine cable installation permit process, please contact theNetworks Section at the ACMA on:

T (03) 9963 6800E subcablesenquiries@acma.gov.au

Information is provided in this guide without prejudice to a subsequent decision by the ACMA and the ACMA reserves the right to exercise its powers under the Act to refuse an application or impose conditions on a permit to install a submarine cable.

In making decisions related to matters covered in this guide, the ACMA will take all relevant factors into account and decide each application on its merits. Potential applicants are advised to seek their own independent legal advice when preparing a permit application. This guide is not intended to be a substitute for independent legal advice.

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Permits to install submarine cablesTerminologyTerms used in the guide have the same meaning as in the Act. The following terms are used in the guide:

‘Carrier’ is a person who holds a carrier licence.

‘Protection zone permit’ is a permit to:

(a) install one or more submarine cables in a protection zone; or(b) install a single international submarine cable in both:

i. a protection zone; andii. Australian waters that are not in a protection zone and that are not

coastal waters of a State or the Northern Territory; or(c) install two or more international cables in both:

i. a protection zone; andii. Australian waters that are not in a protection zone and that are not

coastal waters of a State or the Northern Territory.

‘Non-protection zone permit’ is a permit to install one or more international submarine cables in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory.

‘International submarine cable’ is a cable that connects a place in Australia with a place outside of Australia (whether or not the cable is laid via another place in Australia).

‘Domestic submarine cable’ is a cable that connects a place in Australia with another place in Australia.

Note – where a submarine cable connects to an offshore platform that is within the waters of the territorial sea, it will be considered a place within Australia. Conversely, where an offshore platform is located in the waters of the exclusive economic zone (EEZ) or beyond the limits of the EEZ, it will be considered a place outside Australia.

‘Coastal waters’ means the waters covered by the Coastal Waters (State Powers) Act 1980 (Cth) or the Coastal Waters (Northern Territory Powers) Act 1980 (Cth). Coastal waters are generally the first three nautical miles of the territorial sea adjacent to each State and the Northern Territory, plus (in the case of Western Australia) some title areas landward of the territorial sea baseline but external to the State.

‘Australian waters’ is defined in Schedule 3A to the Act to mean:

the waters of the territorial sea (within the meaning of the Seas and Submerged Lands Act 1973) of Australia

the waters of the exclusive economic zone of Australia

the sea above that part of the continental shelf of Australia that is beyond the limits of the exclusive economic zone.

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For other definitions relating to the submarine cable regime, refer to subclause 2(1) of Schedule 3A to the Act.

What type of permit is required?All international cables (both in a protection zone and in Australian waters that are not in a protection zone and that are not coastal waters) require an installation permit. A permit is only required for a domestic cable if the cable is to be installed in a protection zone.

Note: Installing an international submarine cable without a permit or a domestic cable in a protection zone is an offence under the Act.

A protection zone installation permit authorises the installation of:

one or more submarine cables in a protection zone

a single international submarine cable in both a protection zone and in Australian waters that are not in a protection zone and that are not coastal waters, or

each of two or more international submarine cables in both a protection zone and in Australian waters that are not in a protection zone and that are not coastal waters.

A non-protection zone installation permit authorises the installation of one or more international submarine cables in Australian waters that are not in a protection zone and that are not coastal waters of a State or the Northern Territory. Carriers should seek necessary regulatory approvals for installations from relevant State or Territory governments.

There is a streamlined process for applications to install submarine cables that will traverse both a protection zone and a non-protection zone area. Carriers only need to apply for one permit for an international submarine cable that will pass through both a protection zone and Australian waters that are not in a protection zone and that are not coastal waters. International cables that are not proposed to be installed in a protection zone are required to have a non-protection zone permit for installation.

Figure 1 can be used to help determine whether a carrier needs a permit to install a submarine cable in Australian waters and, if so, what type of permit is required.

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What does it cost to apply for a permit?An application for a permit must be accompanied by payment of the appropriate charge per cable and the consultancy deposit (if applicable). To request an invoice prior to lodging an application for a permit, please contact the Networks Section at the ACMA on:

T (03) 9963 6800E subcablesenquiries@acma.gov.au

Once an invoice has been issued, payment can be made by direct deposit to the ACMA or by cheque payable to the Collector of Public Monies at the ACMA.

The following permit application fees apply:

Application Charge Per Cable Consultancy Deposit

Protection zone permit $4040 n/a

Non-protection zone permit $5959 $25,000

The consultancy deposit is payable for the cost of external consultancy services associated with non-protection zone permit applications. It must be paid with the application charge prior to lodging a permit application. The ACMA will use the consultancy deposit if a situation arises where the ACMA considers independent expert

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advice is needed. For example, a consultant may provide technical information about the likely operation of a proposed cable where there are concerns relating to the impact of the proposed installation on the environment.

Any unspent portion of the deposit is refundable to the applicant. A further charge may be levied on the applicant if the costs of an external consultant exceed the deposit.

Applying for a permitCarrier representatives are advised to contact the Networks Section of the ACMA by telephone on (03) 9963 6800 to discuss a new cable proposal early in the planning phase of the project. This will enable ACMA staff to provide relevant advice about the permit process and check whether the proposed cable route is in conflict with routes already permitted by the ACMA. If required, the ACMA will provide the contact details of other permitted cable proponents in the vicinity of a new cable proposal to enable liaison in relation to the cable route.

Only a carrier may apply for a permit to install a submarine cable. An application must be in writing and in the form approved by the ACMA. The application form for a submarine cable installation permit is available on the ACMA website. Please note that:

applicants are required to provide two hard copies and an electronic copy of the application form to the ACMA and

applications that are incomplete or illegible will be returned to the applicant.

Processing permit applicationsTimeframes for processing an applicationThe ACMA is required to either grant or refuse an application for a permit within the following timeframes:

Protection zone permit – 25 business days after the day the application for the permit was received. The ACMA may extend this period up to, but not exceeding, 35 business days.

Non-protection zone permit – 60 business days after the day the application for the permit was received. The ACMA may extend this period up to, but not exceeding, 90 business days.

Requests for additional informationAfter receiving an application for a permit to install a submarine cable, the ACMA will either:

proceed to consideration of the application, or

request additional information from the applicant.

To assist in consideration of an application for a permit, the ACMA may seek clarification or additional information from the applicant about their application. The ACMA will give applicants a reasonable period of time in which to provide the requested information.

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Note: If the ACMA has requested additional information (under Schedule 3A) the ‘clock stops’ on the application processing timeframe until the requested information has been received.

Notification of change of circumstances If an application has been made and the applicant becomes aware of a change of circumstances relating to information set out in the application, the applicant must advise the ACMA of the change as soon as practicable.

The ACMA will decide whether the change is material and will notify the applicant accordingly. If the change is material then the ACMA may notify the applicant of an extension to the period in which the application will be considered.

Treatment of informationApplicants should clearly indicate specific material contained in the application that is commercial-in-confidence. The ACMA will liaise with the applicant about the use of such material if disclosure is required to meet the ACMA’s statutory responsibilities.

Consultation on permit applicationsSchedule 3A requires the ACMA to consult with the Attorney-General’s Department on permit applications to ensure that matters of international law, native title and security are appropriately considered. To meet this statutory responsibility, a copy of the application will be forwarded to the Attorney-General’s Department for assessment.

The Attorney-General’s Department can advise the ACMA that there is no objection to the application, make a submission to the ACMA on the application or extend the consultation period by giving notice to the ACMA. The Attorney-General’s Department may also direct the ACMA not to grant a permit in certain circumstances.

The ACMA must also consult any other persons it considers relevant in making a decision about a permit. In making a decision about an application, the ACMA will rely on information submitted by the applicant, but may seek other inputs (for example, from other government agencies) if considered necessary. Depending on the type of permit applied for and the geographical location of the proposed cable installation, the ACMA may consult the following organisations about a permit application:

Department of Environment

Department of Defence

State/Territory Government bodies such as ports and environment authorities.

Duration of a permitA permit will remain in force for 18 months from the day the permit is granted.

Before a permit expires, a carrier may seek to extend the duration of the permit for a further 180 days. To extend a permit, a carrier must apply to the ACMA before the permit expires and provide reasons (in writing) for seeking the extension. An application to extend a permit after the permit has expired will not be accepted.

There is no statutory limit to the number of extensions that may be granted, however, a fee of $1414.00 is payable for each extension.

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Information required by the ACMA to extend a permitAll requests to extend a permit must be accompanied by a statement setting out the reasons why a permit extension is being requested. These reasons may include information about delays in obtaining overseas approvals/permits/licences, delays as a result of survey, manufacturing or cable laying problems or other technical or commercial impediments (as applicable).

To support a request for a permit extension, an applicant should provide an outline of their submarine cable project plan and scheduled dates for key milestones including (as relevant) the following:

completion of marine route survey

granting of/application for landing station and associated permits

contract-in-force for cable and component supply

commencement of cable manufacture and assembly

installation of cable landing facilities

commencement of cable laying

proposed ready-for-service date

any other key milestones.

Once the applicant has prepared the necessary information it can be sent to the ACMA using the email address: subcablesenquiries@acma.gov.au The ACMA may contact the applicant in order to clarify aspects of the information provided.

ACMA consideration and decision-makingThe ACMA will assess the information provided by the applicant to determine whether there is sufficient evidence to substantiate the reasons for requesting a permit extension.

Where an application is made for a second or subsequent permit extension, the ACMA will not only consider the current reasons provided but also assess the applicant’s progress against previously provided key milestones (as set out in their submarine cable project plan). The ACMA may also consider the impact of any extension on other cable proponents.

The ACMA will notify the applicant of its decision regarding the permit extension. If the ACMA refuses the application, it must give the holder of the permit written notice and the reason for the decision.

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Preparing an application for a permitThis section provides general guidance about the information requested by the ACMA for inclusion in an application for a permit. Applicants are encouraged to provide any additional information considered relevant to the ACMA’s assessment of an application.

Part A—type of permitIndicate the type of permit required. Use the information on page 3 for guidance.

Part B—applicant details

Under the Act, only a carrier may apply to the ACMA for a permit.

For information about the carrier licensing regime please contact the ACMA on:

T (03) 9963 6800E carriers@acma.gov.au

Part C—proposed installation information

This section of the application form requires applicants to provide information (including maps where appropriate) about the proposed installation of the cable(s).

Item 1: The proposed route(s) in Australian waters of the submarine cable(s) specified in the application.

Applicants are requested to provide information specifying:

geographic coordinates and geodetic datum for the proposed installation (an electronic word version is required so the proposed cable route can be plotted)

an electronic ESRI ArcGIS Shapefile (.shp) of the proposed route, and

the geographic location at which the cable will land onshore.

Applicants are requested to submit a copy of a desktop or hydrographic survey of the proposed route to illustrate the exact location of the proposed cable installation.

Item 2: Details about the ownership and control of the submarine cable(s) specified in the application.

This information is required to give the ACMA accurate information about any persons that may own or control a proposed submarine cable. The information is relevant to the consultation process between the ACMA and the Attorney-General’s Department.

For the purposes of this question, control includes control as a result of or by means of, trusts, agreements, arrangements, understandings and practices:

whether or not having legal or equitable force

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whether or not based on legal or equitable rights, and

whether or not capable of being exercised indirectly through one or more interposed companies, partnerships or trusts.

Item 3: The anticipated start and completion dates for installation of the cable.

Applicants are requested to indicate (as accurately as possible) proposed installation dates of the cable. Applicants should attach a brief explanation of the anticipated:

commencement date of the proposed installation

duration of the actual installation process, and

operational date for the cable(s).

This information will assist the ACMA in determining whether or not permit conditions are appropriate.

In the event that the proposed installation date appears likely to change during consideration of a pending application, the applicant must notify the ACMA immediately.

Item 4: Relevant technical and economic aspects of the installation.

Applicants are requested to provide information on technical aspects of the proposed installation including:

design capacity of proposed installation

proposed cable depth and burial of installation, including the proposed width of any trench surrounding the installation(s)

any additional measures designed to minimise future damage to the cable

compliance with international best practice recommendations—through reference to relevant International Cable Protection Committee (ICPC) recommendations, and

cable or pipeline crossing arrangements.

Applicants are requested to provide information on economic aspects of the proposed installation including:

the party or parties responsible for the installation of the proposed cable, and

the party or parties responsible for the maintenance and repair of the proposed installation.

Note: Part 3, Division 4 of Schedule 3A requires the installation of a submarine cable to be done in a manner that:

does as little damage as possible

is in accordance with good engineering practice

complies with industry standards.

Item 5: How the proposed installation facilitates the supply of efficient, modern and cost-effective carriage services to the public.

Applicants are requested to provide information about how the proposed installation will:

benefit (for example, by providing lower cost services) Australian end-users (or, a company or other entity)

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advance the delivery of reliable services to Australian end-users (or, a company or other entity), and

facilitate competition in the supply of carriage services to the public in Australia.

Applicants are advised to provide a brief description (no more than 300 words) of the capacity of the proposed installation and how any features of the proposed cable installation will advance the delivery of Australian telecommunications services.

Item 6: Status of regulatory approvals from other Commonwealth bodies that are required to install the cable

Applicants are also requested to briefly outline: the Commonwealth approvals that are applicable to the proposed installation

the Commonwealth departments or bodies the applicant has consulted about the approvals or permits required

the status of any permits or approvals required, and

whether any restrictions or conditions on the proposed installation have been placed on the applicant by a Commonwealth body.

Note: The installation of a submarine cable outside a protection zone does not exempt a carrier from State and Territory laws. Within coastal waters outside a protection zone, carriers are required to comply with State and Territory laws applicable to the installation of submarine cables. The nature of State legislative requirements may vary significantly between States and the Northern Territory, and applicants may wish to seek independent legal advice about their obligations.

Item 7: Proposed co-location of the submarine cable or cables with one or more other submarine cables.

Applicants are requested to provide information about the proximity of the proposed installation to other existing submarine cable(s).

There is no definition of ‘co-location’ in Schedule 3A to the Act. The ACMA will therefore consider the area or distance of a proposed installation from other existing cables.

The cable protection and permit regime encourages installation of future cables in areas declared as protection zones to minimise the impact of cables on the environment, sea and seabed. Applicants should note that the Explanatory Memorandum to Schedule 3A to the Act indicates that an application to install a cable outside a protection zone and outside coastal waters may not be approved if co-location of the cable with another cable in an existing protection zone is feasible.

Applicants are requested to specify (briefly) reasons why co-location with another cable is not proposed. This may include technical, economic, or other reasons. For example, the ACMA is aware that ICPC includes the recommendation that parallel cables be ideally located apart at a distance of two or more times the depth of water (subject to 'choke points' or narrow areas through which two or more cables are likely to pass).

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The ACMA will consider the issue of co-location on a case-by-case basis, and will examine and ultimately weigh-up an applicant’s reasons why a new installation is not proposed to be ‘co-located’ with another cable or cables.

Item 8: Any other matters relevant to the ACMA’s consideration of the application.

Applicants are requested to provide any other information that may be relevant to the ACMA’s consideration of a permit application.

Part D—conditions applicable to the installation of submarine cablesThe form asks applicants to acknowledge that they have read and understood the conditions applicable to the installation of submarine cables. It does not require applicants to demonstrate how they seek to fulfil these legislative obligations.

A protection zone permit is subject to the conditions set out in clause 58A of Schedule 3A. A non-protection zone permit is subject to the conditions set out in clause 73A of Schedule 3A. Breaching permit conditions may result in suspension or cancellation of a permit and/or the imposition of a fine under Schedule 3A.

The conditions specified in Schedule 3A apply to the installation of a submarine cable in Australian waters (other than coastal waters of a State or the Northern Territory). Installation of a submarine cable in coastal waters (outside protection zones) is subject to the jurisdiction of relevant State and/or Territory planning authorities. Applicants may wish to seek legal advice concerning their obligations in coastal waters.

Applicants should also note that:

The installation of telecommunications facilities on land may be subject to the requirements detailed in Schedule 3 to the Act.

The ACMA may require, as a general condition on permits, that applicants confirm the date and method of installation with the ACMA (once occurred) to ensure that any conditions on the permit—as granted by the ACMA—are met.

Note: The ACMA may also grant a permit subject to specified conditions that relate to the installation of the cable. Conditions may vary across different locations within the non-protection zone permit area. Conditions can be varied by the ACMA at any time, and remain in force until modified or revoked by the ACMA.

Part E—Applicant declarationApplicants are requested to assert that the information contained in the application form is true and correct, and sign accordingly. Penalties apply for making false and misleading statements in connection with an application for a permit.

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Decision to grant or refuse a permitMatters to be considered by the ACMA in making a decision about a permit applicationSchedule 3A to the Act requires the ACMA to have regard to the following when deciding whether to grant a permit:

a submission from the Attorney-General’s Department, and

any other matter that the ACMA considers relevant.

For non-protection zone permits, the ACMA must also have regard to:

the objective of facilitating the supply of efficient, modern and cost-effective carriage services

technical and economic aspects of the installation, and

whether the installation involves co-location of proposed cables with other cables.

To assist the ACMA’s consideration of the proposed installation, applicants are requested to provide information in relation to each of these matters in Part C of their application.

Applicants should note that these matters are not strict requirements or pre-requisites for granting or refusing an application, but are matters which the ACMA must have regard to when deciding whether or not to grant a non-protection zone permit. For example, if, in the course of considering an application, it becomes obvious to the ACMA that the applicant has not considered co-location of the cable with other submarine cables in the vicinity of the proposed installation, the ACMA is not obliged or required to refuse the application, but it must consider this as a factor when weighing up whether or not to grant the non-protection zone permit.

As a matter of procedural fairness, any comments provided by other bodies that, in the ACMA’s opinion, weigh against the granting of a permit and which the ACMA proposes to take into account in making its decision, would be put to the applicant for comment before a decision is made.

The ACMA’s general principles for decision-making There are a number of general legal principles that apply to making decisions of an administrative character by ACMA officers, including the following:

the decision must be within a power properly conferred under the Acts upon the decision-maker

a decision-maker must consider all matters that are relevant to the making of the decision and not take into account matters that are not relevant to the making of the decision

a decision-maker must not make a decision or exercise a power or discretion in bad faith or for an improper purpose

a decision-maker must ensure that findings of fact are based on evidence

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decisions must be reasonable

those who may be affected by a decision must be accorded procedural fairness, which includes the principles of natural justice

a decision-maker must properly consider the application of government policy

a decision-maker must not exercise a discretionary power at the direction of another person.

Review rights

A decision by the ACMA to refuse or grant a permit is subject to internal reconsideration by the ACMA and review by the Administrative Appeals Tribunal in accordance with clause 1 of Schedule 4 to the Act.

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Suspension or cancellation of a permitThe ACMA may suspend or cancel a permit by giving notice to the holder of the permit.

Process for suspension or cancellationTo suspend or cancel a permit, the ACMA must be satisfied that the carrier holding the permit has breached a condition of the permit or has not complied with any conditions in the Telecommunications Code of Practice 1997 applying to the installation of submarine cables. Carriers are advised to refer to clause 62 (protection zone permit) or 77 (non-protection zone permit) of Schedule 3A to the Act.

The ACMA is required to give the holder of the permit written notice of its intention to suspend or cancel a permit 30 days before it does so. The grounds on which the suspension or cancellation is based must be provided in the notice.

The ACMA must give the permit holder the opportunity to submit to the ACMA any matters for consideration and must take into account matters submitted and any remedial action taken before deciding whether to cancel or suspend.

Review rightsIf, following the ACMA consultation with the permit holder, the ACMA decides to suspend or cancel a permit, the ACMA’s decision will be able to be reviewed by the Administrative Appeals Tribunal, following a process of internal reconsideration by the ACMA.

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Checklist for permit applicationsBefore submitting an application for a submarine cable installation permit to the ACMA check that you have:

Used the correct application form for the type of permit you wish to apply for

Contacted the ACMA to arrange for a tax invoice to be issued for the application fee and consultancy deposit (if applicable)

Made the correct payment to the ACMA

Obtained all relevant regulatory approvals from Commonwealth governments

Completed the application form and included all required and any additional relevant information

Provided two hard copies and an electronic copy of the application form to the ACMA

Attached an electronic ESRI ArcGIS Shapefile (.shp) for the proposed installation

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More informationFor further advice about permits for the installation of submarine cables in Australian waters, contact the Networks Section. Correspondence should be addressed to:

The Manager Networks SectionCommunications Safeguards and Networks BranchAustralian Communications and Media AuthorityPO Box 13112 Law CourtsMelbourne VIC 8010

T 03 9963 6800E subcablesenquiries@acma.gov.auW www.acma.gov.au/Industry/Telco/Infrastructure/Submarine-cabling-and-

protection-zones

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