Bills Digest no. 22 2009–10
Telecommunications Legislation Amendment (National Broadband Network Measures—Network Information) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date introduced: 19 August 2009
House: House of Representatives
Portfolio: Broadband, Communications and the Digital Economy
Commencement: Day of Royal Assent
Links: The relevant links to the Bill, Explanatory Memorandum
and second reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/. When Bills have been passed they can
be found at ComLaw, which is at http://www.comlaw.gov.au/.
A Bill that is materially the
same as this Bill was introduced into the Senate on 25 June 2009 (the Telecommunications Legislation Amendment (National Broadband Network
Measures No. 1) Bill 2009). Prior to that, on 13 May 2009, the Senate had
voted in favour of a motion to refuse consideration of any bill relating to the
Government’s new national broadband network unless the Government made public
two reports concerning its original national broadband network proposal. Those
reports have not been made public and that motion stands at the time of
writing. On 19 August 2009, the Government introduced into the House of
Representatives this Bill that is, as noted, in all material respects the
same. According to the second reading speech, the Government took this action
to progress the Bill and the rollout of the National Broadband Network. The
digest for the other Bill is materially identical to this one.
Purpose and short summary of
Bill
The Bill amends Part 27A of the Telecommunications
Act 1997. Part 27A enables the Minister to require telecommunications
carriers to give information to the Commonwealth about their telecommunications
networks. In 2008, when Part 27A was enacted, the Commonwealth required this
information so that it could provide it to those firms that intended to submit
a proposal for the Government’s first, now-terminated, fibre-to-the-node
National Broadband Network (NBN #1).
This Bill does three things. It removes a sunset clause
which made most of Part 27A inoperative after 26 May 2009. It expands the
class of firms from which information can be compulsorily obtained to include
utilities. It also changes the purpose to which the information can be put.
Information is to be received for the purpose of the implementation study that
the Commonwealth is to conduct and by the company (NBN Co) that the
Commonwealth has established to own and operate a new fibre-to-the-home
national broadband network (NBN #2).
As suggested by the
comprehensive and helpful explanatory memorandum to Bill, which exceeds, in
length, the Bill it describes by a factor of almost three, this Bill is not
particularly controversial (as distinct from the national broadband network
proposal itself which is not without controversy).
Part 27A was inserted into the Act in 2008 by the Telecommunications Legislation Amendment (National
Broadband Network) Act 2008. The Explanatory
Memoranda and digest of that Bill provide an explanation of Part 27A.
Part 27A was enacted to facilitate the building of a
national broadband network, this being an element of the election platform of
the Australian Labor Party in 2007. A history of that proposal up to June 2008
in set out in the digest for the earlier Bill but is summarised here.
The salient facts are that the original proposal to create a
fibre-to-the-node (FTTN) network involved a significant modification of
Telstra’s network rather than the building of an entirely new one. The main
changes were to be in that part of the network known as the customer access
network. This is the part linking residential and business premises with the
local Telstra exchange. The original proposal would have seen the replacement,
with optic fibre, of the segment of bundled copper wire running from the
exchange to a point of aggregation near premises (called a node). With the
installation of electronic equipment at the node, faster network access speeds
would have been available than with the current common technology which places
such equipment in Telstra exchanges.
Under the original proposal these network modifications were
to be developed under a request for proposals (RFP) process. In order for
proponents to submit informed, properly costed proposals, they required
information about existing telecommunications infrastructure.
The Commonwealth initially asked some carriers to provide
information voluntarily. However, this evidently did not yield a satisfactory
outcome and, on 19 March 2008, the Telecommunications Legislation Amendment (National
Broadband Network) Bill 2008 was introduced.
On 11 April 2008—well before the legislation had passed
through Parliament—the Minister announced the issue of a request for proposals for the modification
of the network. Proposals were due by 25 July 2008. Because the passage of
the Bill was taking some time (it did not pass through Parliament until 15 May
2008), the Government extended this time until 26 November 2008 so that
there was sufficient time for the carriers to provide information of the
requisite kind and for prospective proponents to assess that information and
formulate their proposals.
By the RFP deadline, six proposals had been received
including one from Telstra.
On 15 December 2008, Telstra announced to the Australian Stock Exchange that it had been excluded from the national
broadband network RFP process.[1] In its proposal, Telstra
had failed to address one of the mandatory elements in the RFP by not providing a plan explaining how it would involve
small-to-medium enterprises (SMEs) in the building of the NBN. Consequently its
proposal was non-compliant. The Commonwealth would have been exposed to the
ongoing risk of legal action by another bidder or bidders were it to have
allowed Telstra’s proposal to remain under consideration.
On 22 January 2009, the Minister announced that he had received the report of the Expert Panel on the compliant proposals.[2]
The Expert Panel had been appointed in March 2008 to assess the responses to the RFP.[3]
In an published
extract of the Expert Panel’s report—the Government having declined to
publish the full report—the panel said that all of the proposals were to some
extent underdeveloped and that none provided value for money, one of the
dominant principles of Commonwealth Government procurement.[4]
Consequently, on 7 April 2009, the Government terminated the
RFP process. It announced that instead it would establish a company to build, own and operate a wholesale
fibre to the home network.[5] Ninety percent of homes,
schools and workplaces will be connected to the network with optic fibre
cable. The remaining ten percent of homes, schools and workplaces will be
connected with terrestrial and satellite wireless services.
The initial announcement stated that company will build and
operate the network, but the Minister later explained that the Government
contemplated the possibility that the company would secure the use of existing
facilities in a range of ways including purchase, exchange for equity in NBN Co
or one or more of a variety of other legal arrangements.
The Commonwealth will make an initial investment in the
company but might issue retail bonds for the rest of its contribution, the
extent of which is unknown. NBN Co itself will be able also borrow in its own
right.
The Commonwealth will be a majority shareholder of the
company but it will sell down its interest in the company within five years
after the network is built and fully operational.
The Minister’s media announcement of 7 April 2009 sets out a
plan of action to be given immediate effect. The elements of the plan and the
developments to date are;
- A company will be established to own and operate the national
broadband network. On 9 April 2009, the company (ACN 136533741) was
established. At the time of writing it is called NBN Co Ltd. On 25 July 2009,
the Minister announced the appointment of Mike Quigley as executive chairman of the NBN Co.[6]
On 6 August 2009, the Minister announced
appointments to the board of NBN Co.[7]
- A discussion
paper on proposals for regulatory reform—including possible forced separation
of Telstra’s network and retail arms and changes to the access regime—was
issued in April 2009[8] with well over 100
submissions received by 3 June 2009. On 3 July 2009, the Minister sought more views on a number of matters including the regulatory arrangements for the
new network.[9] Submissions were
required by 30 July 2009 but have not been published at the time of writing.
- Arrangements are to be made for the conduct of an implementation
study to inform the Commonwealth on matters such as network design and
operating arrangements which will involve, in some capacity, a lead advisor. A
request for expressions of interest for the provision of lead advisory services
was issued in April 2009 with responses due by 19 May 2009. Following that, a
request for tenders was issued the outcome of which was the announcement,
on 6 August 2009, of the appointment of McKinseys and KPMG as lead advisors.[10]
Neither the request for tenders nor the tenders are publicly available.
- Measures are to be taken to deal immediately with some regional
backbone blackspots. A consultation
paper was issued in April 2009.[11] Submissions were received until 12 May 2009. A request for tender was issued on 1 July
2009 with responses due by 5 August 2009.
- Negotiations with the Tasmanian Government are to be expedited,
to build upon its proposal in response to the Government’s 2008 RFP process.
The Tasmanian Government’s proposal found favour with the Expert panel which
recommended that the proposal be used as the basis of a plan for an immediate
rollout of the network in Tasmania. On 16 July 2009, Aurora Energy, which is
central to the Tasmanian Government’s project, issued a request
for tender for the provision and management of optic fibre cables. Tenders
are due by 16 August 2009. On 25 July 2009, the Minister announced the appointment of Mr Doug Campbell as executive chairman of the Tasmanian NBN
company (TNBN Co), which is a subsidiary of NBN Co.[12]
TNBN Co was established on 13 August 2009.[13]
- Legislative changes are to be progressed to deal with matters
concerning NBN Co and to facilitate the rollout of fibre networks, including
requiring greenfields developments to use fibre-to-the-premises (FTTP)
technology from 1 July 2010. No legislative changes other than those proposed
in this Bill have been introduced at the time of writing. On 3 July 2009, the
Minister sought views on the regulation of the company including governance
arrangements and ownership matters. Submissions were due on 30 July 2009. On
13 August 2009, the Minister announced that he was establishing a stakeholder group to advise on the development of a
policy on the rollout of fibre-to-the-home in greenfields estates.[14]
In broad terms, the main changes effected by this Bill are
to expand the class of firms that can be required to give network information
to the Commonwealth to include utilities and to change the purpose for which
the information can be used.
Both of these changes can be explained by the differences in
the nature—and proposed manner of implementation—of the first and second
national broadband network proposals.
A further minor, but important, change is made to amend a
sunset clause in the original legislation which caused most of the provisions
to cease operation on 26 May 2009.
How has the change in the kind of proposed network
changed the information required?
The NBN #1 proposal mainly concerned modifications to the
Telstra access network (the replacement of a segment of the copper wire that
links premises to the local Telstra exchange). As such, most of the
information required by the Commonwealth was information about Telstra’s
customer access network (in particular, the location of the nodes at which the
copper wires connecting a cluster of premises is aggregated before running as a
bundle or bundles to the Telstra exchange).
In its new NBN #2 proposal, the Government’s policy speaks
of creating an entirely new network and not just of modifying the access
network. This will certainly involve significant modifications to the access network
(the replacement or duplication of the copper wire from premises to some point
deeper into the network, like a Telstra exchange). However, under this
proposal, the Government also envisages that the NBN Co will also build, buy,
or acquire some rights of use in, elements of the network on the other side of
the exchanges (the core network) including, perhaps, other non-communications
assets.
As such, the Commonwealth may now require information about
an additional range of existing infrastructure. This will include information
about existing carrier-owned telecommunications infrastructure like fibre
transmission links, points of interconnection, ducts, pits and poles. However,
it could also include infrastructure held by utilities. This latter category
could include both communications facilities and other assets that could be
used for new communications facilities like land corridors (where rail lines,
electricity lines or pipelines run), poles, towers, water, sewage or gas
pipelines and conduits. Information about the infrastructure of utilities is
not currently dealt with in Part 27A of the Act.
How has the change in the implementation of proposed
network changed the information required?
Proposals for NBN # 1 were provided by the private sector
and State Governments. It was those parties to which the Commonwealth was
empowered to make available the network information given under Part 27A of the
Act.
With three qualifications, the NBN #2 plan will be developed
through an implementation study, the lead advisors of which, McKinseys and
KPMG, were announced on 6 August 2009 and will be implemented by NBN Co.[15]
The existing terms of the Act authorise the receipt of information by McKinseys
and KPMG. However, minor amendments are required to authorise the receipt of
information by those in the Department who are engaged on the implementation
study and by the NBN Co and its suppliers.
The Bill was referred to
the Senate Environment, Communications and the Arts Committee for inquiry. The
Committee’s report was tabled on 17 August 2009. Details of the
inquiry are at http://www.aph.gov.au/senate/committee/eca_ctte/nat_broadband_bill_2009/index.htm.
The technical and incremental nature of changes being made
to Part 27A by this Bill militate against mainstream media interest. The Bill
has, however, attracted some attention in the industry media. For instance, on
29 June 2009, an opinion
piece by influential communications analyst, Richard Chirgwin, the industry
publication Commsday, observed that the Bill ‘is…for the most part, entirely
unnecessary’ because ‘most of the information about these utilities is already
available to the public in the form of maps’. Further, he notes that much of
the information about the infrastructure of utilities is mapped by State
governments which would likely provide this to the Commonwealth without much
hesitation.[16] In his blog, David
Havyatt, manager of Regulatory and Corporate Affairs at wireless internet
access provider, Unwired, correctly observes that the clauses in the Bill
requiring that instruments to be “published on the internet” are meaningless,
and should refer to a website. He also addresses some of the objections that
have been raised to the original legislation by, for instance, Telstra and Pipe
Networks.[17]
Nine submissions were received by the Senate committee that
is conducting an inquiry into the Bill. The following observations were made
in those submissions:
Optus
Optus said that it ‘has already been required to provide
information under the original legislation’ and that it ‘has no concerns with
the current amendments which seek to change the focus of the legislation to the
Government’s current proposals for a fibre to the premise NBN’. Further, it
says;
‘we anticipate that this is a necessary piece of legislation
to assist with the efficient and cost effective roll-out of the NBN. It is
likely that information obtained under this legislation, including that from
utility companies, will enable more informed decisions to be made about the
optimal deployment of new infrastructure to support the roll-out of the NBN’.[18]
Telstra
Under Part 27A as it is now, Telstra was the principal focus
of the Commonwealth’s information requests last year. In its submission,
Telstra agrees with the observation in the explanatory memorandum that ’due to
its existing networks [it] is likely to be the major discloser of information
under the Bill’.
Telstra’s comments on the Bill are supportive. It says that
it ‘agrees that the builder and operator of the NBN, NBN Co, will need access
to information from a range of telecommunications and utility infrastructure
providers in order to deliver the Commonwealth’s vision for the NBN’. However,
it expresses a concern about the principle of competitive neutrality being
breached given that carriers’ information will be disclosed to the NBN Co, a
publicly held company, that may compete in some markets with the carriers.[19]
Telstra raises two considerations that, it says, ought to be
kept in mind in finalising the Bill. The first is that ‘effective security
arrangements are put in place to protect the information provided by carriers
and utilities under the regime. The second is that ‘carriers and utilities
providing information should have certainty about their rights obligations and
exposure in relation to the subsequent use and disclosure of the information
provided under the regime’.[20]
Telstra rightly notes that the Act currently contemplates
that an instrument will be made dealing with security issues (see subsection
531H(4)). However, the Act does not set out any matters that must be taken
into account in the consideration of the content of such an instrument. Telstra
suggests that the Act be amended to set out the matters that must be addressed
in the instrument. It says that the rules in the instrument should cover at
least the following topics;
- ‘Physical security measures (such as secured areas and
access logs);
- Software and network security measures (including email
security, ant-virus measure, firewalls and cryptography);
- Access control and active security measures (including
user identification and authentication, intrusion detection and access logging)
- Hardware and media destruction sanitisation procedures
(and destruction should be mandatory upon occurrence of specified triggers,
including a material breach of any provision of Part 27A or of the Rules);
- Security compliance review and incident detection and
management; and
- Personnel security measures (such as training programs
and security clearances).’[21]
Telstra says that the Bill is not sufficiently clear about
the nature of the information that might be requested in an instrument made by
the Minister. While it says that it understands that the kind of information
likely to be required is information about physical components of the networks
of telecommunications carriers and utilities, the drafting in proposed clause
531(1A) is not obviously limited to that kind of information. It could
include, for instance, ‘business plans and other information concerning the way
in which a carrier intends to use its physical network infrastructure
commercially’.[22] This would, it says,
would ‘raise serious issues of fairness and competitive neutrality,
particularly given the majority stake of the Commonwealth in NBN Co and its
position as a market participant for years to come’.[23]
Telstra seeks protection from liability for parties
providing information that is ‘unintentionally inaccurate’ in any way when that
information is disclosed to the NBN Co or its contractors. It notes that it is
not the carrier or utility that selects the information that is to be disclosed
and therefore considers ’it would be reasonable for the Bill to include an
immunity from claims against any carrier or utility who provides information
under the regime’.[24]
Last, Telstra points to a drafting oversight which would
leave those parties that received information in 2008, under the existing provisions
of the Act, in a position that they could use the information for their own
benefit if they still possessed it.[25] Telstra does not
identify the drafting oversight. However, the Department did address this
issue in evidence before the Senate inquiry into the Bill. It says that all
information that was provided to proponents has been handed back or destroyed
and that statutory declarations to that effect have been made.[26]
Water Services Association of Australia
Upon being invited to make a submission, the Water Services Association
of Australia (WSAA) made several criticisms, many of which were beyond the
scope of the Bill and concerned the suitability of water infrastructure for use
in a telecommunications network. To the extent that it commented on the Bill
itself, it is concerned that there are national security implications
associated with the release of this information. It notes that the legislation
contemplates that the Minister may make an instrument for ‘the handling,
storage and disposal of network information in order to protect the security
and confidentiality of such information. Until such an instrument is drafted,
it is not possible to provide any further comment regarding this matter’.[27]
In fact, such an instrument has been made under the existing legislation.[28]
Australasian Railway Association
The Australasian Railway Association, in a ten page
submission, addressed the possible consequences of the use of rail
infrastructure for telecommunications purposes but did not address the Bill itself
except to note that it was not consulted on it.[29]
Unwired suggested that the Bill ‘is primarily seeking access
to public information in a more useable form’ and, as such ‘it does nothing to
infringe private commercial rights of confidentiality nor to expose risks to
assets.’[31] Further, the Bill does
not go far enough in that it is ‘unnecessarily restrictive in the purposes for
which the Minister may obtain, use and disclose information’.[32]
Unwired points out that there are already several legislative regimes under
which network information can be required to given by carriers to the two
regulators, the Australian Communications and Media Authority (ACMA) and the
Australian Competition and Consumer Commission (ACCC) as well as to other
carriers but that none of these regimes give the Department a right to ask for
such information. It suggests that that there is a case for ‘a single process
for recording and sharing within Government details of utility infrastructure’.[33]
Unwired also makes some accurate observations about some arguments made by
others around privacy and confidentiality. Privacy, at least in the way that
word is used in the Privacy Act, concerns personal information about people and
not corporations and so need not be a concern in relation to this Bill. It
says, however, that the Bill may raise issues of confidentiality of network
information but only to the extent that that information is not already in the
public domain which is the position in relation to almost all infrastructure.[34]
As to the arguments that have been made in relation to Part
27A generally (and not this Bill in particular), that issues of national
security arise from the release of network information, Unwired says, in
dismissing such concerns;
The other claim mounted has been that release of some of this
information could create a risk to national security. A fact of networks is
that if you want to attack them the best point for the attack is a node rather
than a link. All the nodes are very visible. In fact most of the links are
visible, including routes with labelled manhole covers and even topographic
maps showing the course of power lines.[35]
Energy Networks Association
While being supportive of the Government’s plan to develop
the national broadband network and of the efficient use of existing
infrastructure, the Energy Networks Association has four concerns about the
Bill. The first is that it considers that more time should be given to
utilities to consider and comment on the draft instrument that the Minister
makes to require that information be given to the Commonwealth (the Bill
proposes a consultation period of 5 days). Secondly, it is concerned with the
cost of providing information, particularly where IT system changes are
required to capture the information in the required form. Thirdly, it is
concerned about the security of the information that utilities are required to
provide and that appropriate controls are in place when that information is
disclosed. Lastly, it is concerned about the burden of information requests on
companies that do not have systems in place to extract the required information
in the form required by the Commonwealth. (It should be noted that this last
criticism does not concern the Bill directly but rather instruments made under
the Act as it is now and that these concerns can therefore be addressed under
the consultation process that is already in the Act).
Integral Energy
Integral Energy generally supports the Government’s latest
NBN proposal and acknowledged the benefits of the use of existing
infrastructure. It does not raise concerns about the Bill itself but rather
about aspects of the instruments that the Minister may make under the Bill.
These concerns are that information requests should reflect an understanding of
the electricity sector and that the Department should engage with the sector
before any draft instruments are issued; that a reasonable amount of time be
given for information to be supplied; that there be sufficient controls over
the disclosure and use of information; and that compensation is paid on a cost
basis for information provided to the Commonwealth.[36]
Business Council of Australia (BCA)
The Business Council of Australia (BCA) asserted that the
disclosure of some network information to the publicly owned NBN Co could
confer a competitive advantage on it and that this would be contrary to
principles of competitive neutrality.[37]
With regard to the application of Part 27A to utilities, the
BCA says;
In the case of utility and other network companies, it is not
clear that there is a need to compulsorily require information. If the purpose
of acquiring information is to explore options for accessing the infrastructure
of utility companies on commercial terms, then those companies would be likely
to provide the requested information on a voluntary basis where it is in their
interest to do so.[38]
Most of the BCA’s concerns, however, are best characterised
as concerning the latest NBN proposal itself—notably its use of a publicly held
company to effect the rollout and the failure of the Government to assess the
benefits of the proposal—and not the Bill itself.
In its submission, Unwired
criticises the Bill’s requirement that subordinate instruments be ‘published on
the internet’ and notes, correctly, that this is meaningless. The point being
made is that the internet is not the web. Presumably, it is intended that such
instruments be published on the Department’s website. The legislation ought to
say that and to state that it remain on the website for a specified time.
The Explanatory Memorandum
records that the cost in the first year is expected to be no more than $100 000.[39]
Items 1 to 8 either insert new defined terms, point
to new defined terms in Part 27A, or repeal redundant ones.
Item 9 replaces the simplified outline of Part 27A
with a new one.
Items 10 to 13 make changes to definitions to reflect
the new purpose for which information is to be requested. That is, that
information will be requested for the purposes of an implementation study or to
be given to the NBN Co or some of its contractors and not for the purposes of
the now-terminated RFP process.
Item 14 repeals the definition, in section 531B, of
‘protected carrier information’ this being the information that was given by
telecommunication carriers under the existing provision of Part 27A.
Item 15 inserts into section 531B a definition of
‘protected network information’ which is in substantially the same terms as the
definition of ‘protected carrier information’ but includes information received
from utilities and some minor technical differences relating to the time at
which information is received. As before, protected network information can be
information given voluntarily or compulsorily under the proposed changes.
Item 16 inserts new definition of utility into
section 531B. A utility broadly includes suppliers of electricity, gas, water,
sewerage or drainage and suppliers of carriage and transport services. It also
includes anyone who owns a structure or thing used for the provision of those
services.
Item 17 inserts proposed section 531BA which
allows the Minister to determine via (a disallowable) legislative instrument that
another company is a ‘designated broadband company’. Such a company can
receive information like NBN Co does. The Tasmanian NBN Co. will be an example
of a designated broadband company.
Item 18 makes minor amendments to include utilities
within the ambit of Part 27A.
Item 19 inserts proposed subsections 531C(1A) and
531C(1B). Existing section 531C allows the Minister to make a ‘written instrument’
requesting information from carriers and utilities. Whilst this is not a
legislative instrument, it is nonetheless disallowable under existing
subsection 531C(7). The proposed amendment puts limits on the kinds of
information that the Minister may request. In general terms, the information
must concern existing or proposed things that could be used in connection with
the national broadband network.
Items 22 and 23 amend section 531C to extend, from 3
to 5 days, the period of consultation that the Minister must allow when he
makes a draft information request.
Item 24 repeals sections 531D and 531E which deal
with concepts unique to the first national broadband network proposal that are
not longer relevant.
Item 25 repeals Division 2 (which consists of only
one section (section 531F)) and replaces it with a new Division 2.
Existing section 531F obliged a person to comply with a notice requesting
information. However, the provision was expressed to cease operation 12 months
after its commencement. That time has passed and the provision needs to be
amended accordingly. The obligation to comply with an information request is
proposed to continue for 10 years after commencement of the section (proposed
subsection 531F(5)). In addition, new Division 2 prohibits a person from
being involved in a breach of the main obligation by, for instance, aiding and
abetting or inducing a breach of the obligation (proposed subsection 531F(3)).
New Division 2 also makes this a civil penalty provision (proposed subsection
531F(4)). In the case of a corporation, such a provision carries a maximum
penalty imposed by a court of $250,000 per relevant contravention.
Item 27 amends 531G by making changes to the way in
which an ‘entrusted public official’ may disclose protected network
information. The changes simply relate to the different ways in which NBN #1
and NBN #2 are being implemented (that is, an RFP in the former case and an
implementation study in the latter).
Item 30 inserts proposed subsections 531G(2A),
(2B) and (2C) which allow the Minister to make a new kind of (disallowable)
legislative instrument setting out the conditions on which an ‘entrusted public
official’ may disclose information to another public official.
Items 32 and 35 amend section 531G in an identical
manner to items 27 and 30 above but in relation to the use of
information rather than disclosure.
Item 39 repeals section 531H which sets out the rules
for disclosure of information to those involved in the now-terminated RFP
process and replaces it with proposed section 531H which sets out rules
for disclosure to officers of NBN Co or a ‘designated NBN Co’. The new section
retains the Minister’s power to make legislative instruments limiting the way
in which information may be used (existing section 531N, which is retained under
this Bill, allows the Minister to make ‘restricted recipient rules’ limiting
the people to whom information can be given. Subsection 531H(3)—also
retained—allows the Minister to make a legislative instrument setting out the
purposes for which information can be given.)
Item 41 amends section 531K to make changes to the
circumstances in which an ‘entrusted company officer’ may disclose information
to another ‘entrusted company officer’. The changes simply relate to the
different ways in which NBN #1 and NBN #2 are being implemented (that is, an
RFP in the former case and an implementation study in the latter).
Item 44 inserts proposed subsection 531K(2AA) to allow the Minister to make a legislative instrument setting out other
conditions on the disclosure of information by an ‘entrusted company officer’.
Item 45 substitutes paragraph 531K(2A)(a) to reflect
the different ways in which NBN #1 and NBN #2 are being implemented (that is,
an RFP in the former case and an implementation study in the latter).
Items 46, 47, 49 – 55 make changes consequential upon the inclusion of utilities in the class of
person who may be asked to provide information and minor related changes.
Concluding
comments
The legislation in Part 27A sets up a framework under which
the Minister can make a range of instruments. It is these instruments that
will include the detail of the legislation. This is common drafting practice.
It is not practical to in include within the Act itself the matters that will
be addressed in the Ministerial instruments. Most of concerns raised in
submissions to the Senate inquiry relate to matters that are to be dealt with
in subordinate instruments. They are, therefore, not criticisms of the Bill per
se and can really only inform the drafting of those instruments when the
time comes. However, there is merit in Telstra’s suggestion that, in relation
to at least one of the Minister’s powers, the legislation should set some
parameters about what the Minister may determine in an instrument. Telstra made
this suggestion in relation only to the rules surrounding the security of
information. However, were there concerns about the scope of the Minister’s
other instrument-making powers, the Act could be drafted to circumscribe that
power.
This Bill makes relatively minor changes to a legislative
regime that, judging from evidence before the Senate inquiry into the Bill,
appears to have operated without significant detriment to those affected by
it. Whether it provided any positive benefit cannot be judged as the project
for which Part 27A was originally intended was terminated before any evidence
of its virtue was publicly demonstrated.
A reasonable concern has been raised by, for instance,
Telstra and the Business Council of Australia that the provision of information
to the publicly held NBN Co is counter to the obligations of competitive
neutrality that Australian governments have assumed under the National
Competition Policy Agreements. This has merit but only to the extent that the
information is not otherwise publicly available. However, the use of this
publicly held company is a central feature of the Government’s broadband plans
and so this criticism really goes to the policy and not to this Bill itself.
The Bill does not implement the policy but merely facilitates aspects of it.
Concerns were raised in a submission to the Senate inquiry
that the legislation should provide immunity for providers of information in
the event that another party suffers damage as a result of relying on
inadvertently inaccurate information. This is a reasonable concern but it
needs to be weighed against the need to create an incentive for providers to
disclose accurate information. In any case, such risks can likely be mitigated
by appropriately worded disclaimers.
On the whole, this Bill makes small changes to an existing
legislative regime that represents only a small piece of the national broadband
network puzzle.
Members, Senators and
Parliamentary staff can obtain further information from the Parliamentary
Library on (02) 6277 2419.
[2] S Conroy (Minister for Broadband, Communications and the Digital
Economy), Expert Panel Submits Report on National Broadband Network
Submissions, media release, 22 January 2009, http://www.minister.dbcde.gov.au/media/media_releases/2009/001 viewed 14 August 2009
[3] S Conroy (Minister for Broadband, Communications and the Digital
Economy), Government announces Panel of Experts to assess National Broadband
Network proposals, media release, 11 March 2008 http://www.minister.dbcde.gov.au/media/media_releases/2008/government_announces_panel_of_experts_to_assess_national_broadband_network_proposals,
viewed 14 August 2009
[4] Department of Broadband, Communications and the Digital Economy, Extract
From The Evaluation Report For The Request For Proposals To Roll-Out And
Operate A National Broadband Network For Australia, 20
January 2009, http://www.dbcde.gov.au/__data/assets/pdf_file/0007/110014/Summary_observations_for_website.pdf,
viewed 14 August 2009, http://www.dbcde.gov.au/__data/assets/pdf_file/0007/110014/Summary_observations_for_website.pdf,
viewed 14 August 2009.
[6] K Rudd (Prime Minister), S Conroy (Minister for Broadband,
Communications and the Digital Economy), Mike Quigley appointed Executive Chairman of
NBN Co, media release, 25 July 2009, http://www.minister.dbcde.gov.au/media/media_releases/2009/067 viewed 14 August 2009
[7] L Tanner (Minister for Finance and Deregulation), S Conroy (Minister for
Broadband, Communications and the Digital Economy), Board appointments for
National Broadband Network, media release, 6 August 2009, http://www.minister.dbcde.gov.au/media/media_releases/2009/072 viewed 14 August 2009
[9] Department of Broadband, Communications and the Digital Economy, Views
sought on legislative framework for National Broadband Network,
3 July 2009, http://www.minister.dbcde.gov.au/media/media_releases/2009/061,
viewed 14 August 2009
[14] S Conroy (Minister for Broadband, Communications and the Digital Economy), Stakeholder group to advise on greenfields broadband deployment, media
release, 13 August 2009, viewed 14 August 2009 http://www.minister.dbcde.gov.au/media/media_releases/2009/077
[26] Mr P Mason, Senate Environment, Communications and the Arts Committee,
Inquiry into Telecommunications Legislation Amendment (National Broadband
Network Measures No. 1) Bill 2009, Committee Hansard, p. 38
[28] Telecommunications (National Broadband Network—Restricted Recipients and
Storage, Handling and Destruction of Protected Carrier Information) Rules 2008
(No. 1),http://www.comlaw.gov.au/ComLaw/Legislation/LegislativeInstrument1.nsf/0/A7FE3A70056CDADCCA25749E00086419/$file/TelNBN_Recipientsandstoragehandlinganddestructionofinforma.pdf
Jonathan Chowns
7 September 2009
Bills Digest Service
Parliamentary Library
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