National Broadband Network (Tasmania) Act 2010 An Act to provide for the installation of fibre optic cable to premises concurrent with the construction of infrastructure for delivering high-speed broadband and for related matters [Royal Assent 21 December 2010] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the National Broadband Network (Tasmania) Act 2010 . 2. Commencement This Act commences on the day on which this Act receives the Royal Assent. 3. Interpretation In this Act, unless the contrary intention appears – adjoining land, in relation to premises to which a connection cable is or is to be installed under this Act, means land on which it is or may be convenient or necessary for the installer to enter – (a) for the purpose of so installing the cable; or (b) for the purpose of removing the cable under this Act – but does not include the land on which those premises are situated; authorised officer means an individual authorised by the installer or the installer's agent or subcontractor to undertake cable work; business day means a day other than a Saturday, Sunday or statutory holiday within the meaning of the Statutory Holidays Act 2000 ; cable work means – (a) installation of a connection cable; or (b) removal of a connection cable required under this Act; or (c) clearance of land, digging trenches, building conduits for underground cables and other work in preparation for, or necessary for, the installation or maintenance of a connection cable; or (d) pruning and removal of vegetation, clearance of land and other work needed to ensure the safety of a connection cable; or (e) if an authorised officer when carrying out other cable work considers that there is no alternative, adjusting or shutting off any machinery, energy supply, water supply or other thing; or (f) painting, landscaping and other cosmetic works related to the carrying out of other cable work; or (g) any other work related to making good damage to premises or land resulting from the carrying out of other cable work; or (h) if an authorised officer when carrying out other cable work considers that there is an emergency and that there is no reasonable alternative, making use of anything, other than machinery, on the land on which the other cable work is being carried out; or (i) prescribed work; or (j) all other work necessary for the carrying out of other cable work; connection cable means – (a) a fibre optic cable that is attached at one end to premises and at the other end to the distribution network; and (b) any multi-point terminal, premises connection device, optical network terminal or other equipment necessary or incidental to the attachment of a fibre optic cable to premises or the distribution network; distribution network has the meaning given by section 4 ; install, in relation to a connection cable, means attach a fibre optic cable at one end to premises and at the other end to the distribution network; installer means – (a) NBN Co Limited (ACN 136 533 741); or (b) NBN Tasmania Limited (ACN 138 338 271); or (c) Aurora Energy Pty Ltd (ACN 082 464 622); or (d) a prescribed person (including the Crown and a government department); owner means – (a) in the case of a fee simple estate in land, the person in whom that estate is vested; or (b) in the case of land not registered under the Land Titles Act 1980 and subject to a mortgage or other encumbrance under which a person is entitled to an equity of redemption, the person for the time being having that equity of redemption; or (c) in the case of land held under a tenancy for life, the person who is the life tenant; or (d) in the case of land held under a lease – (i) for a term of not less than 99 years; or (ii) if another period of time is prescribed, for a term of not less than that period – the lessee of the land; or (e) in the case of land in respect of which a person has a prescribed interest, that person; or (f) in the case of Crown land within the meaning of the Crown Lands Act 1976 , the Crown in right of Tasmania – but does not include the holder of an interest in land, other than the Crown in right of Tasmania, if the interest of the holder cannot reasonably be discovered by a search of the Register, within the meaning of the Land Titles Act 1980 , or a search conducted at the Registry, within the meaning of the Registration of Deeds Act 1935 ; project means the installation of connection cable to premises concurrently with the construction of the distribution network in the area in which the premises are situated. 4. Meaning of distribution network (1) In this Act – distribution network means the infrastructure installed or constructed along a public street, within the meaning of the Traffic Act 1925 , for the purpose of delivering, by means of fibre optic cable, high-speed broadband telecommunications services to premises in that street or the suburb or area in which that street is situated. (2) The infrastructure referred to in the definition of distribution network in subsection (1) – (a) includes aerial and underground cabling, power poles, underground housing, fibre distribution hubs, local convergence points, central switch points and all other equipment necessary or incidental to achieving the purpose specified in that definition; but (b) does not include connection cables. 5. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Authorised Officers 6. Authority of authorised officer An authorised officer may exercise the following powers: (a) a power that he or she is authorised to exercise by or under this Act; (b) a power that the installer is authorised to exercise by or under this Act. 7. Authorised officer to have identity card (1) The installer or the installer's agent or subcontractor must provide each authorised officer with an identity card. (2) The identity card – (a) must contain a photograph of the authorised officer; and (b) must identify the employer of the authorised officer; and (c) must specify that the authorised officer is authorised to undertake cable work. (3) A person, within 21 days after ceasing to be an authorised officer, must return his or her identity card to the person or body that issued it. Penalty: Fine not exceeding 2.5 penalty units. 8. Production of identity card If the owner or occupier of premises requests an authorised officer to produce his or her identity card for inspection, the authorised officer must not carry out, or continue carrying out, any cable work in respect of those premises until he or she has so produced his or her identity card. Penalty: Fine not exceeding 2.5 penalty units. 9. Offences in relation to authorised officer, &c. (1) A person must not refuse to allow an authorised officer, or a person accompanying and assisting an authorised officer, to enter or remain on land if that authorised officer – (a) is authorised by or under this Act to enter and remain on the land; and (b) has shown his or her identity card to the person; and (c) has explained that he or she is authorised by or under this Act to enter and remain on the land. Penalty: Fine not exceeding 10 penalty units. (2) A person must not obstruct, hinder, delay, threaten or assault – (a) an authorised officer who is lawfully carrying out cable work; or (b) a person accompanying and assisting such an authorised officer. Penalty: Fine not exceeding 10 penalty units. (3) On finding a person guilty of an offence under subsection (1) or (2) , the court, in addition to any other penalty it may impose, may make one or more of the following orders: (a) that the person allow an authorised officer to enter and remain on the land, as authorised by or under this Act, with such assistants and equipment as the authorised officer is authorised by or under this Act to take onto the land; (b) that the person not obstruct, hinder, delay, threaten or assault an authorised officer who is carrying out cable work or any person accompanying and assisting an authorised officer. (4) An order under subsection (3) may be subject to such conditions, and contain such other matters, as the court considers appropriate. (5) A person must not impersonate an authorised officer. Penalty: Fine not exceeding 10 penalty units. PART 3 - Carrying Out Project 10. Notice of intention to install connection cable (1) If the installer intends to install a connection cable as part of the project, the installer is to serve written notice of that intention on the owner of the relevant premises or, in a case where there are 2 or more owners of the relevant premises, on each such owner. (2) The notice is to – (a) be in writing; and (b) explain that the owner may elect, in writing, not to have the connection cable installed; and (c) specify the period within which such an election may be made, being a period of not less than 28 days after the day on which the notice is served on the owner; and (d) specify the person to whom such an election may be made; and (e) specify that such an election may be made by posting it to, or leaving it at, the address specified in the notice; and (f) invite the owner to make submissions as to the placement of the connection cable on the premises and the route of the connection cable; and (g) specify the period within which such submissions may be made, being a period of not less than 28 days after the day on which the notice is served on the owner, and the manner in which such submissions may be made; and (h) include any information required by the regulations to be included. (3) The notice may – (a) specify that an election, in addition to being able to be made by posting it or leaving it at the address specified in the notice, may be made in any other manner specified in the notice; and (b) contain any other information the installer considers appropriate. 11. Notice to owner of adjoining land (1) If the installer intends to install a connection cable as part of the project the installer – (a) is to serve written notice of that intention on the owner of any adjoining land over or under which the installer intends to pass the connection cable or, in a case where there are 2 or more owners of that adjoining land, on each such owner; and (b) may serve written notice of that intention on the owner of any other adjoining land or, in a case where there are 2 or more owners of that other adjoining land, on each such owner. (2) The notice is to – (a) be in writing; and (b) explain that the connection cable, if installed, will or may pass either over or under the adjoining land; and (c) explain that the owner may elect, in writing, not to have the connection cable pass either over or under the adjoining land, as specified in the notice; and (d) specify the period within which such an election may be made, being a period of not less than 28 days after the day on which the notice is served on the owner; and (e) specify the person to whom such an election may be made; and (f) specify that such an election may be made by posting it to, or leaving it at, the address specified in the notice; and (g) invite the owner to make submissions as to the route of the connection cable; and (h) specify the period within which such submissions may be made, being a period of not less than 28 days after the day on which the notice is served on the owner, and the manner in which such submissions may be made; and (i) include any information required by the regulations to be included. (3) The notice may – (a) specify that an election, in addition to being able to be made by posting it or leaving it at the address specified in the notice, may be made in any other manner specified in the notice; and (b) contain any other information the installer considers appropriate. 12. Election not to have connection cable installed or pass over or under adjoining land (1) In this section – notice of intention to install connection cable means a notice under section 10 ; notice relating to adjoining land means a notice under section 11 . (2) An owner of premises on whom a notice of intention to install connection cable has been served, including a person to whom ownership of the premises is transferred after that notice has been so served, may elect, within the period specified in that notice, not to have a connection cable installed. (3) An owner of adjoining land on whom a notice relating to adjoining land has been served, including a person to whom ownership of the adjoining land is transferred after that notice has been so served, may elect, within the period specified in that notice, not to have a connection cable pass either over or under the adjoining land, as specified in that notice. (4) An election under subsection (2) or (3) is to – (a) be in writing; and (b) be provided to the person specified in the notice of intention to install connection cable or notice relating to adjoining land; and (c) be provided within the time, and in a manner, specified in that notice. 13. Effect of election not to have connection cable installed (1) If any owner of premises, including a person to whom ownership of the premises has been transferred, has elected in accordance with section 12 not to have a connection cable installed, the installer is not to install a connection cable to those premises as part of the project. (2) If any owner of premises has elected in accordance with section 12 not to have a connection cable installed, that election is binding on any person to whom ownership of the premises is transferred unless – (a) the new owner notifies the installer, in writing, that he or she consents to the installation of the connection cable; and (b) the installer agrees to the installation of the connection cable as part of the project. (3) If an owner who has elected in accordance with section 12 not to have a connection cable installed later consents, in writing provided to the person to whom the election was provided, to the installation of a connection cable, that owner is taken not to have made the election for the purposes of subsections (1) and (2) . 14. Effect of election not to have connection cable pass over or under adjoining land (1) If any owner of adjoining land, including a person to whom ownership of that adjoining land has been transferred, has elected in accordance with section 12 not to have a connection cable pass either over or under that adjoining land, the installer – (a) is not, as part of the project, to pass a connection cable either over or under that adjoining land for the purpose of installing it to the relevant premises; and (b) may – (i) proceed to install a connection cable to the relevant premises as part of the project by passing the connection cable either over or under other adjoining land if, under this Act, the installer has the consent, or is taken to have the consent, of the owner of that other adjoining land to so pass the connection cable over or under it; or (ii) determine that a connection cable is not to be installed to the relevant premises as part of the project. (2) If the installer determines under subsection (1)(b)(ii) not to install a connection cable to the relevant premises, the installer is to notify the owner of the relevant premises that a connection cable is not to be installed due to the election of an owner of adjoining land. (3) Subsection (2) does not apply if the owner of the relevant premises – (a) has elected in accordance with section 12 not to have a connection cable installed; and (b) has not later consented in accordance with section 13(3) to the installation of a connection cable. (4) If any owner of adjoining land has elected in accordance with section 12 not to have a connection cable pass either over or under that adjoining land, that election is binding on any person to whom ownership of that adjoining land is transferred unless – (a) the new owner notifies the installer, in writing, that he or she consents to the connection cable passing over or under that adjoining land; and (b) the installer agrees to the installation of the connection cable as part of the project. (5) If an owner of adjoining land who has elected in accordance with section 12 not to have a connection cable pass either over or under the adjoining land later consents, in writing provided to the person to whom the election was provided, to a connection cable passing either over or under that adjoining land, that owner is taken not to have made the election for the purposes of subsections (1) and (4) . 15. Effect of no elections under section 12 (1) In this section – notice of intention to install connection cable means a notice under section 10 ; notice relating to adjoining land means a notice under section 11 in relation to adjoining land over or under which the installer intends to pass a connection cable; prescribed circumstances means circumstances where – (a) the installer has served one or more notices of intention to install connection cable and, if relevant, one or more notices relating to adjoining land but an election not to have a connection cable installed, or not to have a connection cable pass either over or under adjoining land, has not been made in accordance with section 12 ; or (b) the installer has been unable to serve a notice of intention to install connection cable, or a notice relating to adjoining land, on any owner because the installer has been unable to determine the name or address of the owner after taking all reasonable steps to do so. (2) In prescribed circumstances – (a) all owners of the premises, and all persons to whom the ownership of the premises is transferred, are taken to have consented to the installation of a connection cable to the premises by the installer as part of the project; and (b) all owners of the adjoining land, and all persons to whom the ownership of the adjoining land is transferred, are taken to have consented to the installer passing a connection cable either over or under the adjoining land when installing it to the premises as part of the project; and (c) the installer may proceed to install a connection cable to the premises and, for that purpose, an authorised officer at any reasonable time may – (i) enter and remain on the land on which the premises are situated and the adjoining land; and (ii) while on that land and the adjoining land, carry out cable work. (3) Before a connection cable is installed, or any related cable work is carried out, under subsection (2)(c) , the installer is to give to the occupier of those premises, and the occupier of the adjoining land, not less than 10 business days' written notice of – (a) the date and approximate time at which the cable is to be installed and related cable work carried out; and (b) the type of related cable work that is to be carried out. (4) A failure by the installer to comply with subsection (3) does not vitiate – (a) the consents that the owners of premises and the owners of adjoining land are taken to have given by reason of subsection (2)(a) and (b) ; or (b) the authority provided by subsection (2)(c) for the installer to install a connection cable; or (c) the authority provided by subsection (2)(c) for an authorised officer to enter and remain on land and carry out cable work; or (d) any other authority provided by this Act for an authorised officer to do any act on land lawfully entered. 16. Effect of submissions as to installation place or route of connection cable (1) Before proceeding to install a connection cable, or carry out related cable work, under section 15(2)(c) , the installer is to take into account any submissions made by the owner of the premises or the owner of any adjoining land. (2) A failure by the installer to comply with subsection (1) does not vitiate – (a) the consents that the owners of premises and the owners of adjoining land are taken to have given by reason of section 15(2)(a) and (b) ; or (b) the authority provided by section 15(2)(c) for the installer to install a connection cable; or (c) the authority provided by section 15(2)(c) for an authorised officer to enter and remain on land and carry out cable work; or (d) any other authority provided by this Act for an authorised officer to do any act on land lawfully entered. 17. Owner may require removal of wrongly connected connection cable (1) In this section – notice of intention to install connection cable means a notice under section 10 ; notice relating to adjoining land means a notice under section 11 ; prescribed circumstances means circumstances where – (a) the installer has been unable to serve a notice of intention to install connection cable or a notice relating to adjoining land on an owner because the installer has been unable to determine the name or address of the owner after taking all reasonable steps to do so; or (b) the installer has otherwise failed to serve a notice of intention to install connection cable or a notice relating to adjoining land on an owner; or (c) the installer mistakenly installs a connection cable despite an owner making an election in accordance with section 12 ; or (d) an owner provides evidence to the satisfaction of the installer that he or she was not resident at his or her normal address when the notice of intention to install connection cable or the notice relating to adjoining land was served and did not receive the notice or did not receive the notice in sufficient time to allow him or her to make an election in accordance with section 12 . (2) If the installer as part of the project installs a connection cable to premises in prescribed circumstances, the owner of the premises or the owner of adjoining land over or under which the connection cable passes may require the installer to remove the connection cable. (3) A requirement may be made only – (a) within 6 months after the connection cable was attached to the premises or such longer period as the installer allows; and (b) in writing provided to the installer. (4) If a requirement is made – (a) all owners of the premises, and all persons to whom the ownership of the premises is transferred, are taken to have consented to the removal of the connection cable; and (b) all owners of adjoining land, and all persons to whom the ownership of adjoining land is transferred, are taken to have consented to the removal of the connection cable from above or under the adjoining land; and (c) the installer is to remove the connection cable within 60 days and, for that purpose, an authorised officer at any reasonable time may – (i) enter and remain on the land on which the premises are situated and adjoining land; and (ii) while on that land and adjoining land, carry out cable work. (5) Before proceeding to remove the connection cable from premises under subsection (4)(c) , the installer is to give to the owner and the occupier of those premises, and the owner and the occupier of adjoining land over or under which the connection cable passes, not less than 10 business days' written notice of the date and approximate time at which the cable is to be removed and the type of any related cable work that is to be carried out. (6) A failure by the installer to comply with subsection (5) does not vitiate – (a) the consent of the owner who made the requirement and the consents that the owners of the premises and the owners of adjoining land are taken to have given by reason of subsection (4)(a) and (b) ; or (b) the authority provided by that subsection for the installer to remove the connection cable; or (c) the authority provided by that subsection for an authorised officer to enter and remain on land; or (d) any other authority provided by this Act for an authorised officer to do any act on land so entered. 18. Installer not obliged to install connection cable Nothing in this Act obliges the installer to install a connection cable as part of the project and the installer is not liable to a penalty for damages for refusing or failing to install cable as part of the project. PART 4 - Carrying Out Cable Work 19. Powers of authorised officer on entry to land When an authorised officer enters and remains on land under the authority of this Act, he or she may – (a) carry out any cable work he or she considers necessary or appropriate; and (b) be accompanied by such assistants as the authorised officer considers necessary or appropriate; and (c) may take any vehicles or equipment the authorised officer considers necessary or appropriate on the land. 20. Authorised officer to leave land if entry refused If an authorised officer, after making reasonable attempts to enter or remain on land as authorised by or under this Act, is refused or obstructed by the occupier or another person in so entering or remaining on the land, the authorised officer is to leave the land. 21. Warrant to enter land if cable works unsafe (1) After leaving land as required by section 20 , an authorised officer may apply to a justice for a warrant to enter and remain on the land if he or she considers that due to cable work already done there is a risk to the safety of any person or any property or to the supply of broadband telecommunications services to other premises. (2) On the application of an authorised officer under subsection (1) , a justice may issue a warrant if satisfied that – (a) an authorised officer is authorised by or under this Act to enter and remain on the land specified in the application; and (b) an authorised officer has been refused or obstructed by the occupier or another person in so entering or remaining on that land; and (c) there are reasonable grounds for the authorised officer to believe that due to cable work already done there is a risk to the safety of any person or any property or to the supply of broadband telecommunications services to other premises. (3) A warrant authorises the authorised officer named in the warrant or any authorised officer, as specified in the warrant – (a) to enter and remain on the land specified in the warrant, using such force as is reasonable in the circumstances; and (b) to carry out such cable work on that land as is necessary for ensuring the safety of persons and property and the supply of broadband telecommunications services to other premises; and (c) to exercise on that land and for that purpose any other power an authorised officer is entitled to exercise on land entered under the authority of this Act. (4) A warrant – (a) is to specify the date on which it ceases to have effect; and (b) may contain conditions to which its authority is subject. (5) On issuing a warrant, the justice is to record, or cause a record to be made of, all relevant particulars of the warrant. (6) A warrant is not invalidated by any defect other than a defect that affects the warrant's substance in a material particular. 22. Protection for installer and authorised officer if entry on land refused (1) In this section – resulting damage means any harm or damage suffered by or done to any person or property, or to the supply of broadband telecommunications services to other premises, by reason only of the failure of the authorised officer to carry out cable work necessary to ensure the safety of persons and property, and the supply of broadband telecommunications services to other premises, as the result of the authorised officer leaving land as required by section 20 when refused or obstructed in entering or remaining on that land. (2) If an authorised officer leaves land as required by section 20 when refused or obstructed in entering or remaining on that land – (a) no liability attaches to the installer for failing to remove a connection cable as required by this Act; and (b) no liability attaches to the authorised officer or installer for any resulting damage unless – (i) the authorised officer should reasonably have suspected that there was a risk to the safety of persons or property, or to the supply of broadband telecommunications services to other premises, as the result of unfinished cable work; and (ii) the authorised officer failed to take all reasonable steps to warn the person who refused or obstructed the authorised officer in entering or remaining on the land that there was a risk to the safety of persons or property, or to the supply of broadband telecommunications services to other premises, if the authorised officer was not permitted to enter and remain on that land to carry out cable works for the purpose of ensuring the safety of persons, property or the supply of broadband telecommunications services to other premises. 23. Duty of authorised officer in carrying out cable work When carrying out cable work on land, an authorised officer is to – (a) act in accordance with good industry practice; and (b) take all reasonable steps to ensure the safety of persons; and (c) do as little damage as possible to the land and property on the land; and (d) minimise the impact of the cable work on the activities of the occupier and other persons on the land. 24. Notifying of damage or destruction If land or other property is damaged or destroyed when an authorised officer is carrying out cable work, the installer is to notify the occupier and the owner of the land or other property of the particulars of the damage or destruction – (a) in writing; and (b) as soon as practicable. 25. Duty of installer to make good, or compensate for, damage or destruction (1) If land or other property is damaged or destroyed when an authorised officer is carrying out cable work, the installer must – (a) make good the damage or destruction as soon as practicable; or (b) pay reasonable compensation for the damage or destruction. (2) If the owner of the land or other property that has been damaged or destroyed does not agree with the installer as to the amount of compensation, the claim for compensation is to be determined – (a) if it is a minor civil claim within the meaning of the Magistrates Court (Civil Division) Act 1992 , by the Magistrates Court (Civil Division); or (b) in any other case, as if it were a disputed claim for compensation under the Land Acquisition Act 1993 . PART 5 - Miscellaneous 26. Offence to interfere with connection cable, &c. A person must not – (a) maliciously destroy or damage a connection cable; or (b) otherwise interfere with a connection cable with the intent of maliciously destroying or damaging it. Penalty: Fine not exceeding 100 penalty units. 27. False or misleading information In giving any information, or making any communication, under this Act to the installer or an authorised officer, a person must not – (a) make a statement knowing it to be false or misleading; or (b) omit any matter from a statement knowing that without that matter the statement is false or misleading. Penalty: Fine not exceeding 30 penalty units. 28. Application of planning laws Nothing in this Act constitutes authority for any cable work to be carried out contrary to – (a) the Land Use Planning and Approvals Act 1993 ; or (b) the Aboriginal Heritage Act 1975 ; or (c) the Building Act 2016 ; or (d) the Historic Cultural Heritage Act 1995 . 29. Ownership of connection cable The ownership of a connection cable is not affected by the fact that it has been – (a) attached to premises; or (b) passes over or under land; or (c) attached to premises in a manner that utilises other telecommunications infrastructure, electricity infrastructure or other infrastructure over or under land. 30. Regulations (1) The Governor may make regulations for the purposes of this Act. (2) Without limiting the generality of subsection (1) , the regulations may be made in relation to one or more of the following: (a) fees and charges payable in respect of any matter under the Act; (b) the powers and duties of the installer and authorised officers; (c) conditions to which the exercise by an authorised officer of powers given to the authorised officer by or under this Act may be subject. (3) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations. (4) The regulations may – (a) provide that a contravention of any of the regulations is an offence; and (b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues. 31. Administration of Act Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 – (a) the administration of this Act is assigned to the Premier; and (b) the department responsible to the Premier in relation to the administration of this Act is the Department of Premier and Cabinet.