By Jessie Jacob*
The number of subsea cables landing in Australia has more than doubled since the legislation to create protection zones for these vital pieces of infrastructure was passed in 2005. We rely ever more heavily on the connectivity that cables provide and, with capacity-hungry 6G on the horizon, the need will only grow. (The Australian Strategic Policy Institute. The Strategist.)
The changes in 2005 to the Telecommunications Act 1997 established protection zones for submarine cables of national significance. The new Schedule 3A prohibited activities in these zones that would likely result in damage to the cables, such as fishing using gear that rests on or near the seabed, and also introduced criminal penalties for damaging cables.
Australia’s framework has been considered a ‘gold standard’—probably in part because it criminalised damage to cables, fulfilling an obligation under the UN Convention on the Law of the Sea.
There is some redundancy and resilience in the industry thanks to the number of subsea cables, with landing stations as far flung as the Sunshine Coast, Port Headland and Darwin—with more proposed. And of course, providers don’t want their cables cut or damaged given it means unhappy customers and reputational harm to their business. Companies therefore tend to have business continuity plans in the event of a disruption.
Yet it is a telling indicator that no new protection zones have been established since the original three were declared in 2007, with two in Sydney and one in Perth. But that only covers about two thirds of Australia’s cable landing sites, counting spurs and mainland connections to nearby islands – including Tasmania. It would be an obvious worry if providers don’t feel the zones are worth the effort to register.
Under the 2005 law, the Australian Communications and Media Authority can declare zones of its own initiative or accept applications from a carrier for a new zone. An application comes with a price tag of $161,251.
Considering the cost to repair a cable and the inevitable disruption to services, this a paltry sum. When Vocus’s Australian Singapore Cable in the Perth protection zone was cut in 2021—the only known cut to a cable in an Australian protection zone—the cost to repair was $1.5 million.
It’s hard to explain why more applications have not been made. One suggestion from a cable company was the ‘free rider’ issue—whereby other companies can take advantage of a safety zone funded by competitors. But that doesn’t seem enough of a blocker.
Part of the problem is there are no metrics by which to judge the efficacy of the protection zones. There is no requirement for ACMA to report disruptions, nor for companies to report them to ACMA in the first place, though there are other organisations who track this, such as the International Cable Protection Committee.
To judge if the current regime is working, we need metrics such as the number of cables disrupted by human activity in a zone compared to the number outside zones. This way, there are numbers to crunch to determine if a zone is, say, 5 percent or 50 percent safer than unprotected areas.
These numbers would also help ACMA justify the creation of new zones. Cable owners have said that ACMA should be unilaterally declaring and funding these new zones as needed.
But ACMA also has to consider the impact of imposing new regulations in an area given it would encroach on members of the public’s activities. There needs to be a demonstrable benefit to justify legislative or regulatory change.
Additionally, Schedule 3A doesn’t cater for the monitoring of the zones. Penalties only act as a deterrent if there is a perception that criminals will be caught and punished—yet this hasn’t happened. The Australian Federal Police told the 2010 review of schedule 3A that their legislative requirements didn’t extend to monitoring the zones and that, at any rate, they were not equipped to do so.
Presumably, actual patrolling of the zones is conducted by Maritime Border Command, and threats to cables are one of the many types of threats to security within its remit. Otherwise, prevention measures in the zones include cable monitoring by industry and awareness-raising activities.
ACMA recommended in 2010 to determine if monitoring is necessary in the zones. This didn’t eventuate, but it should happen. Reviewing and updating the legislation would clarify who has responsibility for monitoring the zones and strengthen the deterrent effect of the penalties.
Finally, a review would offer a chance to clarify how the 3A regime identifies a cable as one of ‘national significance’. This is the term that determines whether or not a protection zone applies, but it is a vague definition. One way to bring clarity would be to align the definition with that in the Security of Critical Infrastructure Act 2018, and other relevant legislation.
So, there is a clear case for a review. It could consider a scheme to capture metrics, determine the value and feasibility of a monitoring and enforcement regime, and look at aligning the 3A definitions and concepts to other critical infrastructure legislation.
Above all, this would make it clear to Australian carriers, international carriers contemplating an Australian landing—and indeed other countries looking to implement their own legislative regime—that Australia remains the ‘gold standard’ for cable regimes and that we are constantly looking at how best to keep undersea cables safe.
