Time to get “fibre-ready” - New mandatory requirements for construction development projects

10 October 2011

On 27 September 2011, the Telecommunications Legislation Amendment (Fibre Deployment) Act 2011(Cth) came into effect. The Act provides the legislative framework to support the Government’s objective of connecting 93% of Australian premises to fibre.

The amendments provide for significant obligations (and penalties for non-compliance) on developers in order to ensure that new real estate projects are copper free and “fibre-ready”. 

Telecommunications Legislation Amendment (Fibre Deployment) Act 2011(Cth) (the Act)

The Act introduces a new Part 20A into the Telecommunications Act 1997 (Cth) which prescribes three key requirements for new developments:

  1. the optical fibre requirement;
  2. the fibre-ready facilities requirement; and
  3. the fibre ready installation before sale requirement.

The Act also creates a third party access regime which permits carriers to access fixed-line facilities, such as pits and pipes, owned or operated by non-carriers for the purposes of installing optical fibre.

When do the requirements apply?

The requirements apply to all types of new real estate development projects intended to establish building lots or building units, including broadacre estates, urban infill and urban renewal projects. 

The obligations will not apply to developments where the relevant contracts have been signed, or work has commenced on the installation of fixed-line facilities or lines, before the Act comes into effect (27 September 2011).

What are the requirements?

  1. Requirement to install optical fibre –the Minister for Broadband, Communications and the Digital Economy may declare a real estate development project.  Once declared, a person must not install a telecommunications line in that development unless it is an optic fibre line.  Declarations will be made on a discretionary basis, taking into account the project’s size, location, dates of planning approval and any other relevant matters.
  2. Requirement to install fibre-ready facilities – fixed-line facilities, the ‘passive’ infrastructure used in connection with telecommunication lines, that are installed in new real estate developments must be fibre-ready.  This means that underground ducting, conduits, and pits must be designed and constructed to carry optical fibre line.
  3. Requirement to have fibre-ready facilities before selling – a constitutional corporation is prohibited from selling or leasing land or buildings situated in new developments where fibre-ready facilities have not been installed.  Such a sale or lease will still be valid, but the corporation is liable to incur a civil penalty (see below).

What are the consequences of non-compliance?

Failure to comply with any of the requirements will result in the imposition of civil penalties of up to $250,000 for corporations and $50,000 for individuals for each contravention.

Are there any exemptions?

The requirements will not apply if NBN Co has issued a statement that it does not propose to install optical fibre lines in that particular project area – i.e. the area is outside the long term fibre footprint of the National Broadband Network. 

Further, the requirement to install fibre-ready facilities and the requirement to have fibre-ready facilities before selling will also not apply in new developments where urban utilities (sewerage, water or electricity) are not being installed.

The Act also permits the Minister to exempt certain real estate development projects (which would otherwise be subject to the Act), where the Minister determines that it would not be reasonable to require the project to meet the above obligations.

The Third Party Access Regime

Part 20A also provides a regime for carriers to access fixed-line facilities, which are owned by non-carriers.  The owner or operator of such a facility must, if requested to do so by a carrier, give the carrier access to the facility.  Access will be on commercially negotiated terms.  If such terms cannot be negotiated, they may be made by an agreed arbitrator.  If the parties are unable to agree on an arbitrator, the ACCC will be the default arbitrator. 

As with the other requirements under the Act, there is an exemption process, where the Minister may exempt some fixed-line facilities from the access regime.

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The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Christine Covington

Partner. Sydney
+61 2 9210 6428


James North

Partner. Sydney
+61 2 9210 6734