Telecommunications Legislation Amendment (National Broadband Network) Bill 2008


Index

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/.

Purpose

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.

Building a national broadband network

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.

The need for network information

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]

Kinds of information that might be sought

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.

Chronology

Voluntary disclosure sought

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.

The tender process for the national broadband network

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.

Committee consideration

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.

Key issues

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.

Financial implications

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]

History of the Bill

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.

Main provisions

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
.

Division 1 - Introduction

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]

Division 2 Carriers must give information to an authorised information officer

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.

Division 3 Protection of Information

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.



[1]. The Request for Proposals (RFP) for the NBN was issued on 11 April 2008 and proposals must be received by 25 July 2008.

[2]. http://www.alp.org.au/media/0307/pcloo210.php

[3]. Telecommunications (Consumer Protection and Service Standards) Act 1999, Part 9C.

[4]. G9 submission to Expert Taskforce, 1 August 2007, page 5.

[5]. Explanatory Memorandum, p. 4.

[6]. Regulation Impact Statement: Access to network data to facilitate the National Broadband Network, paragraph 4, p. 10.

[7]. ibid., p. 10.

[8]. Concern about the potential use of what may be commercially sensitive information was strongly expressed to the Standing Committee on Environment, Communications and the Arts in the submission from Telstra.

[9]. In accordance with the terms of section 19A of the Acts Interpretation Act 1901, the Minister will be the Minister for Broadband, Communication and the Digital Economy.

[10]. According to the Explanatory Memorandum it is not intended that the Minister s instrument would specify information held by carriers that is personal information of customers: Explanatory Memorandum, p. 20.

[11]. Proposed subsection 531C(2) provides that the approved period must not be less than 10 days.

[12]. In addition, proposed subsection 531C(5) provides that the instrument is to be published on the internet.

[13]. The Bill does not contain a provision which puts a time limit on the Minister s consideration.

[14]. The Senate Standing Committee on Environment, Communications and the Arts, Telecommunications Legislation Amendment (National Broadband Network) Bill 2008 , May 2008, p. 3.

[15]. Protected carrier information is defined in new section 531B.

[16]. Revised Explanatory Memorandum, p. 23.

[17]. The reference to the Department is a reference to the Department of Broadband, Communications and the Digital Economy.

[18]. A definition of the term matter preparatory to the publication of a designated request for proposal notice was inserted by amendment into proposed section 531B. It includes a matter preparatory to the publication of a variation of a designated request for a proposal notice.

[19]. Under proposed section 531E of the Bill, action by the Commonwealth includes the introduction of a Bill into a House of the Parliament.

[20]. Under proposed subsection 531G(3) this paragraph will cease to have effect 12 months after the proposed subsection commenced.

[21]. Under proposed subsection 531G(3B) this paragraph will cease to have effect 12 months after the proposed subsection commenced.

[22]. The term body politic is not defined in the Bill or Telecommunications Act, but the Explanatory Memorandum states that it refers to a State or Territory Government. The proposed paragraph therefore refers to officer of a State or Territory Government but not to officers or employees of the Commonwealth.

[23]. Explanatory Memorandum, p. 19.

[24]. Annetts v McCann (1990) 170 CLR 596.

[25]. Senate Standing Committee on Environment, Communication and the Arts, op. cit., p. 7.

[26]. ibid., p. 11.

[27]. Standing Committee on Environment, Communication and the Arts, op. cit., p. 8.

[28]. ibid., p. 11.

[29]. Telstra s submission to Senate Standing Committee on Environment, Communication and the Arts, page 5.

[30]. Explanatory Memorandum, p. 29.

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Jonathan Chowns and Paula Pyburne
30 June 2008
Bills Digest Service
Parliamentary Library

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