Bills Digest no. 152 2007–08
Telecommunications Legislation Amendment (National
Broadband Network) Bill 2008
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
Telecommunications Legislation
Amendment (National Broadband Network) Bill
2008
Date
introduced: 19
March 2008
House: The Senate
Portfolio: Broadband, Communications and the
Digital Economy
Commencement:
On the day after the date
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/.
This Bill inserts proposed Part
27A into Telecommunications Act 1997 (the
Telecommunications Act). Part 27A is a legislative framework which
enables the Minister to make an instrument that sets out
information that telecommunications carriers must give to the
Commonwealth about their telecommunications networks. The Bill
provides for that information to be given to certain public
officials and to intending bidders for the building of a National
Broadband Network (NBN). The Bill also creates a framework for the
protection of that information.[1]
Background Basis of Policy
Commitment
The election platform of the Australian Labor Party in 2007
included an undertaking to contribute $4.7 billion towards the
building of a national broadband network that would reach 98% of
home and business premises and provide speeds of no less than 12
megabits per second.[2] Work would commence on the network before the end of
2008.
Of that $4.7 billion, $2 billion is to come from the
Communications Fund which will necessitate the amendment of the
legislation under which the Fund was established.[3] The Bill
amending the Communications Fund legislation is presently
before Parliament.
The language used to describe the NBN proposal is apt to lead to
the impression that a broadband network is a unitary thing perhaps
even one that is owned by one firm and that this proposal involves
the creation of an entirely new broadband network. In fact, most of
the network elements that are used to provide fixed line broadband
services are already in place, some parts for many years. Broadband
services do and will continue to use a good deal of the same
physical infrastructure as has been used for many years for
conventional fixed line telephone calls.
The NBN proposal will actually involve will be the replacement
of some parts of the network mainly sections of copper wire between
premises and Telstra exchanges and the addition of some new parts;
in particular, the high capacity cable which runs between exchanges
and into the core network. These new parts will have to integrate
with the parts that are already in place most, but not all, of
which are owned by Telstra. In order for a party to make a credible
proposal to upgrade the network, it must have reliable information
about what is already in place. The principal purpose of this Bill
is to facilitate the dissemination of that information to
prospective bidders.
It has long been known by the Commonwealth that anyone
particularly anyone other than Telstra wanting to upgrade the
network would need information about existing infrastructure. Under
a not entirely different process that commenced in the term of the
previous Government, a group of nine companies ( the G9 ) submitted
a proposal on 1 August 2007 to the then Government s Expert
Taskforce which clearly made the case for the disclosure of
relevant network information. It said:
In order for the assessment process to be fair and
for proposals put forward to have a reasonable degree of accuracy,
it will be necessary for all potential proponents to have access to
the information required for them to design and cost their
network... [4]
At page 5 of its
2007 submission to the previous Government s Expert Taskforce,
the G9 set out some of the kinds of information that would be
required by a proponent. In response to questions from the Senate
Environment, Communications and the Arts Committee which conducted
an
inquiry into this Bill, the Department of Broadband,
Communications and the Digital Economy provided further information
about the kinds of information that it envisaged would be required
by proponents. These are listed at paragraph 1.18 of the
Committee s report. For further details, see the main
provisions below.
The Commonwealth is
reported in the Australian on 29 February 2008 to have written
to several telecommunications carriers with a request for voluntary
disclosure of network information. Carriers were reported to have
been told that, unless they agreed within four days to disclose the
information, the Commonwealth would legislate to force
disclosure.
Some carriers notably Telstra and Pipe Networks were concerned
about being asked to disclose confidential network information.
However, on 4 March 2008, Telstra was
reported to have agreed to voluntarily supply network
information on the condition that the Government ensures national
security and commercial interests are not compromised. Pipe
Networks also explained, in the daily communications newsletter
Communications Day,
that it was concerned about, amongst other things, the commercially
sensitive nature of the information being sought; the uncertainty
about the manner in which the information would be used and to whom
it would be given; the lack of security arising from the format in
which the information was to be provided; the lack of involvement
of the disclosing parties in the drafting of non-disclosure
agreements and the difficulties that would arise upon disclosure in
Pipe s negotiations with regulators and law enforcement agencies in
the United States where it is hoping to land a new undersea
cable.
On 11 March 2008, the Minister
announced the membership of an Expert Panel. The role of the
panel is to determine the manner in which the request for
proposals/tender will be conducted and to assess any proposals that
are submitted. The Expert Panel was differently constituted from
the former Government s Expert
Taskforce which included a current and former officer of the
ACCC while the Expert Panel includes none. The absence of members
of the ACCC has been
criticised by the Opposition because of the regulatory
challenges that will be raised by the NBN process.
In the same announcement on 11 March 2008, the Minister said
that, in addition to the Government issuing a request for
proposals/tender, it would also invite submissions from the public
about regulatory issues.
On 17 March 2008, the Minister invited
submissions from the public to be made between 17 March to 30
March 2008 to assist in the development of the Request for
Proposals. A considerable number of
submissions were received in response, only a few of which
addressed the question asked.
On 18 March 2008, the Minister was reported in
Communications Day as having announced that the Government
would introduce legislation to force disclosure of network
information. As reported, this was because carriers had not agreed,
in the four days provided for by the Minister, to agree to provide
the information.
Although this Bill had not been passed by both Houses at the
time, on 11 April 2008 the Minister announced
the issue of the
request for proposals/tender (RFP/T) for the national broadband
network. The RFP/T closes on 25 July 2008 (after 75 days).
Also on 11 April 2008, the Commonwealth
called for submissions on regulatory issues concerning the NBN.
Submissions on regulatory issues are due on 25 June 2008, one month
before proposals for the NBN are due.
On 29 April 2008, in the absence of the voluntary disclosure of
network information (and prior to this Bill being passed to force
compulsory disclosure),
representatives of the Group of 9 which is expected to lodge a
proposal, began to agitate for an extension of time for the
lodgement of proposals.
On 9 May 2008, Telstra voluntarily released network information
with undisclosed conditions. However, on 13 May 2008, this
information was described as
absolutely inadequate by the bid manager for the G9 consortium.
It is therefore probable that this Bill will need to be passed in
order for the Commonwealth to force the disclosure of relevant
network information.
On 20 March, 2008, the Bill was referred to the
Senate Standing Committee on Environment, Communications and the
Arts for inquiry and report by 7 May 2008. The Committee
actually reported on 9 May 2008. It has made recommendations for
amendments to the Bill which were debated in the Senate
on 14 May 2008.
This Bill sets up a legislative scheme for the collection and
protection of network information. It enables the Minister to make
disallowable instruments dealing with the detail of the scheme.
Much will depend therefore on the content and timing of those
instruments which cannot be made until the Bill is passed. Little
can be said, then, about this legislative scheme other than that
the objective of the Bill is sound: it is clear that potential
bidders for the NBN will need information about the existing
network and clear, also, that it is not in the interests of those
in possession of it to make it available without coercion.
It is beyond the scope of this digest to consider the NBN policy
or the details of request for proposals process. However, the
operation of this Bill, if it is passed, is clearly tied to the NBN
tender process and there may be some consequences if the Bill does
not pass or, if it passes but the instruments made under it are not
promptly made. In the event that the useful network information is
not made available to prospective bidders in a timely manner, it is
certain that the timetable for RFP process will need to be
adjusted. This will naturally affect the timetable for the
commencement of the building process as well. While this may be
awkward for the Government in the light of its election promise, it
may well prove to be positive outcome as it will allow time for
consideration of the complex regulatory, technical, commercial,
social and economic issues that attend this proposal.
According to the Explanatory Memorandum, the Bill is not
expected to have any financial impact on Commonwealth expenditure
or revenue.[5]
The Regulation Impact Statement sets out four options which may
provide viable means for obtaining information from
telecommunications carriers about their telecommunications networks
and recommends adopting Option D. [6]
However, according to the Regulation Impact Statement, a
potential cost attached to Option D is that carriers may require
compensation for the compulsory acquisition of intellectual
property.[7]
The Bill was introduced in the Senate on 19 March 2008. Debate
took place in the Senate on 14 May 2008. During the debate a number
of issues relating to the Bill arose. In particular:
- the status of any information which may have been provided
voluntarily to the Government in response to its request of 29
February 2008 and whether, in fact, there should be a two tiered
system which differentiated between voluntary disclosure and
involuntary disclosure
- whether the legislation was sufficiently clear about the
purposes for which disclosed information could be used[8] and
- whether disclosed information was sufficiently protected in
terms of its storage and disposal.
After vigorous debate in the Senate about these and other
matters, thirteen Government and sixteen opposition amendments were
agreed to. The Bill, as amended, was introduced into the House of
Representatives on 15 May 2008 where a total of eighteen Government
amendments were agreed to. The Senate agreed to the amendments
passed by the House of Representatives on 15 May 2008.
This digest incorporates the various amendments to the Bill.
Items 1 and 2 of the Bill insert new
definitions into existing section 7 of the Telecommunications Act.
These include:
- ACCC official is to have the same meaning as Commission
official in section 155AAA of the Trade Practices Act
1974
- ACMA official has the same meaning as in the Australian
Communications and Media Authority Act 2005
These terms are referred to in the definition of entrusted
company official in proposed section 531B.
Items 3 to 9 of the Bill also
insert definitions into existing section 7 of the
Telecommunications Act. The details of each definition are
contained variously in proposed sections 531B, 531C and
531D.
Item 10 inserts a further
definition into existing section 7 of the Telecommunications Act.
The detail of the definition is contained in proposed
section 531N.
Item 11 of the Bill inserts
proposed Part 27A which contains proposed
sections
531A-Q.
Proposed subsection 531C(1)
empowers the Minister,[9] by written instrument, to determine the following:
- specified information is designated
information for the purposes of applying the
Telecommunications Act to a specified carrier[10]
- the approved manner and approved
form in which a specified carrier is to give designated
information
- the approved period within which a specified
carrier is to give designated information.[11]
The written instrument is, according to
proposed subsection 531C(7) a
disallowable instrument under section 46B of the Acts
Interpretation Act 1901 (AIA). The relevant provisions of
section 46B of the AIA are:
- The written instrument must be notified in the
Gazette: subsection 46B(5).[12]
- A copy of the written instrument is to be laid before each
House of the Parliament not later than 6 sitting days of that House
after the instrument is made and, for that purpose, must be
delivered to the House by the person or body authorised to make the
instrument: subsection 46B(9) and
- If a copy of an instrument is not laid before each House of the
Parliament as required, it ceases to have effect: subsection
46B(10).
For the avoidance of doubt, proposed subsection
531C(8) confirms that this written instrument is not a
legislative instrument under the terms of the Legislative
Instruments Act 2003.
However, before the instrument is Gazetted
proposed subsection 531C(4) requires that the
Minister must:
- give written notice to the specified carrier setting out the
contents of the instrument in draft form and inviting the carrier
to make submissions within three business days
after the notice is given and
- consider any submissions that were received within the
timeframe.[13]
This means that the Minister has no legislative obligation to
consider a submission which was not submitted within the three
business day period.
Proposed section 531C is
important because it triggers the requirement for a carrier to
provide designated information to an authorised information officer
within a specified time. Designated information
may include:
- core optical fibre transmission network information, for
example locations such as towns between which optical fibre
operates
- microwave radio core transmission networks
- location points of interconnection
- detail about the network servicing customers
- from the exchange to the premises including locations of
telephone exchanges
- line lengths from exchanges to pillars
- line lengths from pillars to homes
- information concerning equipment in the Customer Access Network
and
- information regarding physical space in underground
conduits.[14]
Proposed section 531D defines
the term designated request for proposal notice as
a notice published on the Internet by the Commonwealth inviting
companies to make submissions to the Commonwealth setting out their
proposals for the creation or development of a telecommunications
network that is capable of carrying communications on a broadband
basis, and any other requirements, within a specific time frame.
This is a key definition as it is used throughout proposed
Part 27A in relation to the prohibition on disclosing
protected carrier information .[15]
In the context of proposed section
531D other definitions in section 7 of the
Telecommunications Act are relevant as follows:
- communications includes any
communication whether:
- between persons and persons, things and things or persons and
things
- in the form of speech, music or other sounds, data, text,
visual images (animated or otherwise) signals or in any other form
and
- in any combination of forms.
- telecommunications network means a
system, or series of systems, that carries, or is capable of
carrying, communications by means of guided and/or unguided
electromagnetic energy.
One of the amendments to the Bill was to inserted
proposed subsection 531D(3). It provides that it
is immaterial whether the designated request for proposal notice is
published before or after the commencement of Part 27A. This means
that any information which is voluntarily provided in response to
the Commonwealth s call for submissions on 11 April 2008 will be
covered by the definition.[16]
Proposed section 531F applies where an
instrument under proposed subsection 531C(1) has
come into force so that a specified carrier has designated
information . In that case, the carrier must give
the information to an authorised information officer within the
approved period that is set out in the instrument: proposed
subsection 531F(2). Under proposed section
531M the Minister may appoint an SES employee to be an
authorised information officer for the purposes of the
Telecommunications Act. The term authorised information officer was
extended as a result of the Senate amendments to proposed
section 531B to include:
- the Secretary of the Department[17]
- a Deputy Secretary of the Department
- an individual who is an SES employee in the Department and
whose duties relation to the National Broadband Network Task Force,
or
- a person who has been appointed as an authorised information
officer under proposed section 531M.
Once proposed subsection 531F is
triggered, the designated information becomes protected
carrier information which is defined in proposed
subsection 531B. The protected carrier information would
then have to be provided in the manner and form and within the time
which are specified in the Minister s written determination.
One of the amendments to the Bill was the
expansion of the definition of protected carrier information by the
insertion of proposed paragraph (aa). This
paragraph was inserted in response to concerns raised during the
debate on the Bill about the status of any information which may
have been provided voluntarily to the Government in response to its
request of 29 February 2008. The definition now provides that any
information provided by a carrier to an authorised information
officer during the period beginning on 27 February 2008 and ending
12 months after the commencement of proposed Part 27A can be the
subject of an undertaking from the authorised information officer
on behalf of the Commonwealth that the information will be treated
as protected carrier information . As a result that information
will be afforded the same protection from unauthorised disclosure
and use as the information which is provided under the terms of
this Bill.
The consequences of a failure to give the
information to the authorised information officer are significant.
Firstly, section 61 and Part 1 of Schedule 1 of the
Telecommunications Act together, provide that a carrier licence is
dependent upon compliance with the whole of the Telecommunications
Act, the Telecommunications (Consumer Protection and Service
Standards) Act 1999 and regulations under that Act, and
Chapter 5 of the Telecommunications (Interception and Access)
Act 1979. This means that a failure to provide the information
as required could lead to the termination of a carrier licence.
Secondly, contravention of a carrier licence condition would also
be a contravention of a civil penalty provision and could result in
the imposition of a pecuniary penalty of up to $10 million, under
section 570 of the Telecommunications Act.
Proposed subsection 531F(3) is a sunset
provision which limits the operation of proposed section
531F to a period of one year beginning on the day that the
section commences. This ensures that designated information would
be required to be provided only during the period in which the
competitive assessment process for the National Broadband Network
is expected to be conducted.
Another of the amendments to the Bill was the
expansion of proposed subsection 531G(1). Prior to
the amendment it provided that if a person has obtained protected
carrier information in their capacity as an entrusted public
official , the person must not disclose the information to any
other person. The amendment extended the prohibition to include the
use of the information. However, exceptions to those prohibitions
are contained in proposed subsection 531G(2) and,
following amendment, proposed subsection
531G(3A).
The term entrusted public official is defined in
proposed section 531B to include any Commonwealth
Minister or any Secretary of a Commonwealth Department, as well as
all other Commonwealth officers or employees. The definition also
includes, amongst other things, ACMA officials, ACCC officials and
the Director-General of the Australian Security Intelligence
Organisation (ASIO).
Proposed subsection 531G(2) sets
out the exceptions to the prohibition of disclosure. It provides
that an entrusted public official may disclose
protected carrier information for the following purposes:
- a matter preparatory to the publication of a designated request
for proposal notice [18]
- the approach to be taken when considering submissions that
could be made after the publication, or proposed publication, of a
designated request for proposal notice , in response to an
invitation set out in the notice
- the action to be taken by the Commonwealth[19] or Minister in relation to a
proposal set out in a submission made in response to an invitation
set out in a designated request for proposal notice
- any matter that is ancillary or incidental to the above.
The above disclosure may be made by the entrusted
public official to
- the Cabinet: proposed paragraph
531G(2)(a)
- the Minister: proposed paragraph
531G(2)(b)
- another entrusted public official who is to advise the Cabinet,
a Minister or Secretary of a Department: proposed paragraph
531G(2)(c)
- another entrusted public official for the purposes of ASIO, the
ACCC or the ACMA giving advice to the Cabinet, a Minister or
Secretary of a Department: proposed paragraph
531G(2)(d)
- another entrusted public official for a purpose set out in the
Regulations: proposed paragraph 531G(2)(e)[20]
- another entrusted public official for purposes set out in
proposed section 531H: proposed paragraphs 531G(2)(f) to
(h).
The entrusted public official may also disclose
protected carrier information if the carrier has consented to the
disclosure, the information is publicly known or the disclosure is
in compliance with a requirement under a law of the Commonwealth,
State or a Territory: proposed paragraphs 531G(2)(j) and
(k).
Proposed subsection 531G(3A) was
added to the Bill by amendment. It sets out the exceptions to the
prohibition on use of protected carrier information by an entrusted
public official . As with proposed subsection 531G(2), protected
carrier information can be used by an entrusted public official for
the following purposes:
- a matter preparatory to the publication of a designated request
for proposal notice
- the approach to be taken when considering submissions that
could be made after the publication, or proposed publication, of a
designated request for proposal notice , in response to an
invitation set out in the notice
- the action to be taken by the Commonwealth or Minister in
relation to a proposal set out in a submission made in response to
an invitation set out in a designated request for proposal
notice
- any matter that is ancillary or incidental to the above.
Protected carrier information can be used in the
above manner by the following:
- the Cabinet: proposed paragraph
531G(3A)(a)
- the Minister: proposed paragraph
531G(3A)(b)
- for advising the Cabinet, a Minister or Secretary of a
Department: proposed paragraph 531G(3A)(c)
- so that ASIO, the ACCC or the ACMA can give advice to the
Cabinet, a Minister or a committee established under the executive
power of the Commonwealth: proposed paragraph
531G(3A)(d)
- for a purpose set out in the Regulations: proposed
paragraph 531G(3A)(e)[21]
- for purposes set out in proposed section 531H: proposed
paragraphs 531G(3A)(f) to (h).
Under proposed subsection
531G(4) an entrusted public official is not required to
give a carrier an opportunity to be heard in relation to a decision
to disclose the protected carrier information . An amendment was
made to the Bill inserting proposed subsection
531G(4A) which is in similar terms in relation to the use
of protected carrier information . Further reference to these
provisions is made in relation to proposed section
531J below.
Proposed section 531H allows an
authorised information officer to disclose information to an
entrusted company officer . This term is defined in
proposed section 531B. The definition is extremely
broad setting out as it does, some 22 separate circumstances in
which a person will be considered an entrusted company officer to
whom protected carrier information may be disclosed. In some
circumstances there is a direct relationship with a company such
as:
- the directors or employees of the company: proposed
paragraphs 531B(a) and (b)
- an individual engaged to provide services to the company:
proposed paragraph 531B(d)
- an employee or director of a body corporate engaged as a
consultant to the company: proposed paragraphs
531B(e)
- an individual who is a partner in or employee of a partnership
engaged as a consultant to the company: proposed paragraph
531B(g)
- an individual who is an officer or employee of a body
politic[22] that
provides services to a company: proposed paragraph
531B(i).
However, in other circumstances the relationship
is one step removed from the company such as:
- an individual engaged to provide services to a body politic
which in turn provides services to the company: proposed
paragraph 531B(k)
- an employee or director of a body corporate engaged to provide
services to a body politic that provides services to the company:
proposed paragraph 531B(m)
- an individual who is a partner in, or employee of, a
partnership engaged to provide services to a body politic that in
turn provides services to the company: proposed paragraph
531B(o)
- an employee or director of a body corporate engaged as a
consultant to a body corporate that provides services to the
company: proposed paragraph 531B(s)
- an individual who is a partner in, or employee of, a
partnership engaged as a consultant to a body corporate that
provides services to the company: proposed paragraph
531B(u).
According to the Explanatory Memorandum the broad
definition recognises that development proposals may involve
consortia and the preparation of joint submissions.[23] It should be noted
though, that proposed section 531N details
restricted recipients rules . Under
proposed subsection 531N the Minister may make
restricted recipients rules which restrict or limit the entrusted
company officers to whom information may be given under
proposed subsection 531H(1) or proposed
paragraph 531K(2)(a). The restricted recipients rules are
made by legislative instrument and act as a limit to the persons
who will fall within the definition of entrusted company officer in
proposed section 531B.
Under proposed paragraphs
531H(1)(a)-(f) an authorised information officer may
disclose protected carrier information only if all
the following conditions are satisfied:
- a designated request for proposal notice has been published
and
- a company notifies the authorised information officer in
writing that the company is considering making a submission,
intends to make a submission or has made a submission which is may
vary and
- any relevant Ministerial determination made by legislative
instrument according to proposed subsections 531H(3) and
(4) are satisfied and
- any other matters set out in the designated request for
proposal notice are satisfied.
Disclosure of protected carrier information may
only be made by an authorised information officer for the following
purposes:
- consideration by the company of whether to make a submission in
response to the invitation in the designated request for proposal
notice: proposed paragraph 531H(1)(g)
- actual preparation of a submission by the company:
proposed paragraph 531H(1)(h)
- where a submission has already been made by the company, so
that the company can consider whether to vary the submission, or to
actually vary the submission: proposed paragraphs
531H(1)(i) and (j).
Proposed subsections 531G(4),
531G(4A) and proposed subsection 531H(2),
provide that an authorised information officer is not required to
give a carrier an opportunity to be heard in relation to a decision
to disclose or use protected carrier information .
The term procedural fairness , or natural justice , encapsulates
a duty to observe fair procedures when making decisions which
directly and individually affect a person's rights, interests or
legitimate expectations. There is a strong presumption that
procedural fairness must be observed in the exercise of public
power.[24] However,
in this case the proposed subsections make it clear that the
presumption is removed.
Generally, review for breach of procedural fairness is provided
for in paragraph 5(1)(a) of the Administrative Decisions
(Judicial Review) Act 1977 (ADJR Act). In addition, subsection
15(1) of the ADJR Act provides that where an application for review
is made to the Federal Court under section 5, the Court or a Judge
may order that the operation of decision is suspended, or that any
proceedings under the decision are stayed. Subsection 15A(1) of the
ADJR has the same effect in respect of applications for review that
are made to the Federal Magistrates Court. This means, in essence,
that the decision which is the subject of the appeal is not put
into effect until the appeal proceedings are completed.
However, proposed subsection
531J(1) of the Bill provides that the stay provisions in
subsections 15(1) and 15A(1) of the ADJR Act will not apply to
decisions to disclose protected carrier information .
Another way that an aggrieved person may access
the Federal Court is via the Judiciary Act 1903 (Judiciary
Act). Section 39B(1) of the Judiciary Act provides that the Federal
Court can issue writs or injunctions ordering an officer of the
Commonwealth to stop taking certain action for a specified period
of time. However proposed subsection 531J(2)
provides that, where a person makes application to the Federal
Court about a decision made under proposed subsections
531G(2) or 531H(1), that is, a decision to disclose
protected carrier information , (or following amendment, a decision
under proposed subsection 531G(3A) to use
protected carrier information ) the Court must not make any orders
which would affect the operation or implementation of those
decisions pending the finalisation of the application. In effect,
if a carrier were to make an application to the Federal Court for a
judicial ruling about a decision to disclose protected carrier
information there is no mechanism to prevent the disclosure while
the Court deliberates.
Proposed subsection 531K(1) of
the Bill was also subject to amendment to include a reference to
the use of protected carrier information. It provides that where a
person has obtained protected carrier information in their role as
an entrusted company officer they must not disclose the information
to another person or use it.
However, proposed subsection
531K(2) sets out exceptions to the prohibition against
disclosure in the following circumstances:
- the disclosure is to another entrusted company officer of the
company to consider whether the company should make a submission in
response to an invitation set out in a designated request for
proposal notice, to prepare a submission, or vary a submission:
proposed paragraph 531K(2)(a)
- the information is disclosed in a submission made in response
to an invitation set out in a designated request for proposal
notice, or is a variation to a submission: proposed
paragraph 531K(2)(b)
- the carrier who gave the information to an authorised
information officer has consented to the disclosure:
proposed paragraph 531K(2)(c)
- the information has been made publicly known by the carrier or
a person authorised by the carrier to make the information publicly
known: proposed paragraph 531K(2)(d)
- the disclosure is in compliance with a requirement under a law
of the Commonwealth, a State or a Territory: proposed
paragraph 531K(2)(e).
Telstra s submission to the Senate Standing Committee on
Environment, Communication and the Arts strongly objected to the
contents of proposed paragraph 531K(2)(b) and
proposed that the paragraph be narrowed to require any bid
submission to preserve the confidentiality of the protected carrier
information.[25]
Recommendation 2 of the Committee report is that the government
consider amending the Bill to require companies submitting tenders
to designate a carrier s protected network information as
confidential.[26]
No amendments of this nature were made to the Bill.
A further amendment was the insertion of
proposed subsection 531K(2A) in similar terms to
proposed subsection 531K(2), setting out the
exceptions to the prohibition against use.
Proposed subsection 531K(3)
provides civil penalty provisions for a breach of proposed
subsection 531K(1). The civil penalty provisions are set
out in section 570 of the Telecommunications Act.
Proposed subsection 531L(1)
provides for the Federal Court to make an order directing a company
to compensate a carrier where:
- protected carrier information was given to an authorised
information officer and
- an entrusted company officer of a company has contravened
proposed subsections 531K(1) or (3) in relation to
the information (that is, by disclosing it or using it in ways
other than those which are permitted) and
- the Court is satisfied that the carrier has suffered loss or
damage as a result of the contravention and
- the Court is satisfied that the company expressly, tacitly or
impliedly authorised or permitted the contravention.
The submission by Telstra to the Senate Standing
Committee on Environment, Communication and the Arts sought removal
of the requirement that a company authorised the offence as a
precondition for compensation.[27] Recommendation 3 of the Committee report was
that
the government consider amending paragraph
521L(1)(d) and replace it with wording that conveys that the
contravention was committed in the context of an entrusted company
officer s employment or authority.[28]
In response to this concern, the Bill was amended
to insert proposed subsections 531L(3) to (5).
Proposed subsection 531L provides for the Federal Court to make an
order directing a company to compensate a carrier where an
entrusted company officer of the company has contravened the
prohibition on disclosure of use of prohibited carrier information
, thus causing loss or damage, and the Court is satisfied that the
entrusted company officer was acting within their actual or
apparent authority as an employee of the company when the
contravention occurred.
However the submission by Telstra went further.
It states:
Under the current clause 531L, orders for
compensation may only be made against the company of an
entrusted company officer who has contravened section 531K(1).
Companies involved could be impecunious. Hence it is conceivable
that a judgment-proof company may be a vehicle for conduct which
causes significant commercial detriment to competing carriers
.[29]
No amendments were made to the Bill which address
this issue.
Issues about the storage, handling or destruction
of protected carrier information are dealt with in proposed
section 531P. Under proposed subsection
531P(1) the Minister may make such rules by legislative
instrument. The Explanatory Memorandum states that the rules could
require a company and/or an entrusted company officer of that
company to store or handle protected carrier information in a
certain way, or to destroy such information after a certain period
of time. The rules could detail the practical measures that
recipients of protected carrier information would be required to
put into place to safeguard the information.[30] However, at the time that this Bills
Digest was prepared, the legislative instrument was not available
for analysis. It is not, therefore, possible to say with certainty
that there are rules which deal with the storage, handling or
destruction of protected carrier information in a way that is
adequate, effective and fair. Nevertheless, they will be
legislative instruments as defined by the Legislative
Instruments Act 2003 and so will be on the Federal Instruments
Register.
Proposed subsections 531P(3) and (4) are civil
penalty provisions in accordance with section 570 of the
Telecommunications Act.
Concluding comments
As a general proposition, the intent of this Bill is positive.
As to whether it is effective, much will turn on the content and
timing of the instruments that are made under it. If the
information sought and received is of a nature that satisfies the
needs of those intending to submit proposals for the NBN, then it
can be expected that the quality of bids will be enhanced making
for a more competitive tender process. The converse is true if the
subordinate instruments do not satisfactorily specify the
information that is appropriately sought by intending bidders or if
the information is sought or received too late in the Request for
Proposals process. Given the doubts that have been raised about the
process in particular the suggestion that the Commonwealth may not
be adhering to the process that it has established it may be
prudent for the Commonwealth to consider the calls by intending
bidders for an extension of time to the process rather than face
the possibility of having the process challenged.
Jonathan Chowns and Paula Pyburne
30 June 2008
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top