Footnotes
Chapter 1 - Introduction
[1]
Senate Selection of Bills Committee, Report No. 1 of 2011. See Senate
Hansard, 2 February 2011, p. 79. The bills were introduced into
the House of Representatives on 25 November 2010 and passed with two
amendments on 1 March 2011. See paragraph 3.67 and House of Representatives
Hansard, 1 March 2011, pp. 57–63. The bills were introduced to the Senate
on 2 March 2011.
[2]
Prime Minister, Treasurer, Minister for Finance, Minister for Broadband,
'New National Broadband Network', media release, 7 April 2009.
[3]
Prime Minister, Treasurer, Minister for Finance, Minister for Broadband,
'Regulatory reform for 21st century broadband', media release, 7 April 2009.
[4]
Prime Minister, Treasurer, Minister for Finance, Minister for Broadband,
'New National Broadband Network', media release, 7 April 2009.
[5]
Senator the Hon. P. Wong, Minister for Finance and Senator the Hon. S.
Conroy, Minister for Broadband, Communications and the Digital Economy, Statement
of Expectations, 17 December 2010, p. 1; and NBN Co, Corporate Plan
2011–2013, December 2010, pp. 12 and 23.
[6]
NBN Co, Corporate Plan 2011–2013, December 2010, pp. 23 and
134.
[7]
Explanatory Memorandum, Telecommunications Legislation Amendment
(Competition and Consumer Safeguards) Bill 2010, p. 1.
[8]
Explanatory Memorandum, Telecommunications Legislation Amendment
(Competition and Consumer Safeguards) Bill 2009, p. 1 (emphasis added).
[9]
NBN Co, Annual Report 2009–10, p. 10.
[10]
The Hon. L. Tanner, MP, Minister for Finance and Deregulation and Senator
the Hon. S. Conroy, Minister for Broadband, Communications and the Digital
Economy, 'Draft legislation released for NBN Co operations', media release, 24
February 2010.
[11]
The Hon L. Tanner, MP, Minister for Finance and Deregulation and Senator
the Hon. S. Conroy, Minister for Broadband, Communications and the Digital
Economy, 'Landmark study confirms NBN vision is achievable and affordable',
media release, 6 May 2010. McKinsey-KPMG, Implementation Study for the
National Broadband Network, 5 March 2010.
[12]
NBN Co, Annual Report 2009–10, p. 10; and Prime Minister, Minister
for Finance and Minister for Broadband, 'Agreement between NBN Co and Telstra
on the rollout of the National Broadband Network', media release, 20 June 2010.
[13]
Prime Minister, Treasurer, Minister for
Finance, Minister for Broadband, 'Government releases NBN Co corporate plan',
media release, 20 December 2010, www.minister.dbcde.gov.au/media/media_releases/2010/120
(accessed 16 March 2011).
[14]
Prime Minister, Treasurer, Minister for Finance, and Minister for
Broadband, 'NBN rollout: statement of expectation's, media release, 20 December
2010; and Australian Government, National Broadband Network: progress update
December 2010, December 2010, p. 7.
[15]
Senator the Hon. S. Conroy, Minister for Broadband, Communications and the
Digital Economy, 'Major step forward for Government - Telstra - NBN Co
agreement', media release, 10 February 2011. See also Mr J. Shaw, Director
Government Relations, Telstra, Committee Hansard, 9 March 2011, p. 10.
[16]
Australian Government, National Broadband Network: progress update
December 2010, December 2010, p. 7.
[17]
For example, Internet Society of Australia, Submission 9, p. 1;
Australian Communications Consumer Action Network (ACCAN), Submission 11,
p. 3; Austar, Submission 14, p. 1; Telstra, Submission 16, p. 1;
Optus, Submission 17, p. 2; and Primus Telecommunications, Submission
24, p. 1.
[18]
Prof. N. Glasgow and Prof. K. Griffiths, Group of Eight, Committee
Hansard, 4 March 2011, pp. 57–58.
[19]
Ms P. Saab, President, Association of Catholic School Principals of NSW, Committee
Hansard, 9 March 2011, pp 38–39.
[20]
Mr P. Strong, Executive Director, Council of Small Business Organisations
of Australia, Committee Hansard, 4 March 2011, pp 31–32.
[21]
Mr T. Lyons, Assistant Secretary, ACTU, Committee Hansard, 4 March
2011, p. 47.
Chapter 2 - The Companies Bill
[1]
The Hon. L. Tanner, MP, Minister for Finance and Deregulation and
Senator the Hon. S. Conroy, Minister for Broadband, Communications and the
Digital Economy, 'Draft legislation released for NBN Co operations', media
release, 24 February 2010.
[2]
Submissions on the exposure drafts are at: www.dbcde.gov.au/broadband/national_broadband_network/nbn_company_legislation_and_access_regime,
(accessed 16 March 2011).
[3]
Senate Select Committee on the National Broadband Network, Fourth
Interim Report, May 2010, www.aph.gov.au/Senate/committee/broadband_ctte/interim4-report/index.htm,
(accessed 16 March 2011).
[4]
Significant changes from the exposure draft are: the regulatory scheme
applies to any company which NBN Co controls, not merely to wholly owned subsidiaries
(Schedule 1); an NBN Corporation may not supply a non-communications
service (clause 18); and the Commonwealth may not sell any of NBN Co until the
NBN is built and fully operational and some other conditions are met (Part 3).
[5]
This amendment was contained in the Access Bill. See discussion at
paragraph 3.67; House of Representatives Hansard,
1 March 2011, pp. 57–59; and Revised Explanatory Memorandum, National
Broadband Network Companies Bill 2010 and Telecommunications Legislation
Amendment (National Broadband Network Measures—Access Arrangements) Bill 2010,
p. 15.
[6]
National Broadband Network Companies Bill 2010, clause 9: An NBN
corporation must not supply an eligible service to another person unless the
person is a carrier or a service provider. Several exemptions are provided for
in the bill and are considered below.
[7]
For example, submissions on the exposure draft of the National Broadband
Network Companies Bill 2010: Internet Industry Association, p. 3; Optus,
p. 8; Telstra, p. 5; and TransACT, p. 4.
[8]
National Broadband Network Companies Bill 2010, Schedule 1; and
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, p. 115.
[9]
National Broadband Network Companies Bill 2010, Schedule 1, subclause
1(3).
[10]
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network Measures—Access
Arrangements) Bill 2010, p. 116.
[11]
Telstra, Submission 16, p. 8. Similarly Internode, Submission 6,
p. 3; and Communications Expert Group, Submission 7, p. 3.
[12]
The Hon. A. Albanese, MP, Minister for Infrastructure, Transport, Regional
Development and Local Government, House of Representatives Hansard, 1
March 2011, p. 57.
[13]
National Broadband Network Companies Bill 2010, clause 9: An 'eligible
service' is a listed carriage service as defined by the Telecommunications
Act 1997, or a service that facilitates the supply of a listed carriage
service. An eligible service may be 'declared' by the ACCC, which creates
standard access obligations. See Competition and Consumer Act 2010, section
152AL.
A 'carrier' is
the holder of a carrier licence under section 56 of the Telecommunications Act.
A 'service provider' is a carriage service provider or a content service
provider.
This section
would allow an NBN corporation to supply services other than 'eligible
services' to people other than carriers or service providers, but clause 18
limits this: an NBN corporation must not supply a non-communications service to
another person.
[14]
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, p. 3.
[15]
Telstra, Submission 16, p. 4. Similarly Mr J. Shaw, Director,
Government Relations, Telstra, Committee Hansard,
9 March 2011, p. 12.
[16]
Telstra, Submission 16, p. 5.
[17]
Telstra, Submission 16, p. 5. Similarly Internode, Submission 6,
p. 2.
[18]
Ms C. Lovell, Principal, Regulatory Affairs, NBN Co, Committee Hansard,
9 March 2011, pp 49–50.
[19]
Australian Telecommunications Users Group (ATUG), Submission 19,
pp. 3–4. Similarly Ms R. Sinclair, Managing Director, ATUG, Committee
Hansard, 4 March 2011, p. 51.
[20]
The Hon A. Albanese, MP, Minister for Infrastructure, Transport, Regional
Development and Local Government, House of Representatives Hansard, 1
March 2011, p. 51.
[21]
Mr D. Quinlivan, Deputy Secretary, Department of Broadband, Communications
and the Digital Economy (DBCDE), Committee Hansard, 9 March 2011, p. 65.
[22]
Exposure Draft (15 February 2010), National Broadband Network Companies
Bill 2010, clause 9. Explanatory notes to the exposure draft, p. 4.
[23]
For example see submissions on the exposure draft of the National
Broadband Network Companies Bill 2010: Optus, p. 7; Telstra, p. 4; and TransACT,
p. 2.
[24]
National Broadband Network Companies Bill 2010, clauses 10–16. Explanatory
Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, p. 68.
[25]
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, pp 70–72.
[26]
Energy Networks Association, Submission 4, p. 3. Similarly
Australian Communications Consumer Action Network (ACCAN), Submission 11,
p. 4; and ATUG, Submission 19, p. 4.
[27]
Smart Grid Australia, Submission 1, p. 2.
[28]
Mr M. Healy, Chair, Competitive Carriers Coalition (CCC), Committee
Hansard, 4 March 2011, p. 15.
[29]
Energy Networks Association, Submission 4, p. 3.
[30]
Telstra, Submission 16, pp. 6–7. See also Optus, Submission 17,
p. 6; Mr J. Shaw, Director, Government Relations, Telstra, Committee Hansard,
9 March 2011, pp. 11–12; and Mr M. Krishnapillai, Director, Government and
Corporate Affairs, Optus, Committee Hansard, 9 March 2011, pp 3 and
9.
[31]
The Hon A. Albanese, MP, Minister for Infrastructure, Transport, Regional
Development and Local Government, House of Representatives Hansard, 1
March 2011, pp 52–53.
[32]
Ms P. Spence, First Assistant Secretary, and Mr D. Quinlivan, Deputy
Secretary, DBCDE, Committee Hansard, 9 March 2011, pp 68–69.
[33]
Energy Networks Association, Submission 4, p. 3. Similarly Dr P.
Brooks, Director, Internet Society of Australia, Committee Hansard, 9
March 2011, p. 18; and Mr P. Mason, Assistant Secretary, DBCDE, Committee
Hansard 9, March 2011, p. 67.
[34]
Submissions on exposure draft of the bill, 2010: Optus, p. 9; and Telstra,
p. 7.
[35]
National Broadband Network Companies Bill 2010, clauses 17–19.
[36]
The Hon A. Albanese, MP, Minister for Infrastructure, Transport, Regional
Development and Local Government, House of Representatives Hansard, 1
March 2011, p. 54.
[37]
Internode, Submission 6, p. 2; Telstra, Submission 16, p. 1
and 9; and Optus, Submission 17, p. 6. Similarly Communications
Expert Group, Submission 7, p. 3; and TransACT, Submission 13, p.
4.
[38]
Telstra, Submission 17, p. 10; Dr P. Brooks, Director, Internet
Society of Australia, Committee Hansard, 9 March 2011, p. 18; and Ms C.
Lovell, Principal, Regulatory Affairs, NBN Co, Committee Hansard, 9
March 2011, p. 55.
[39]
The Hon A. Albanese, MP, Minister for Infrastructure, Transport, Regional
Development and Local Government, House of Representatives Hansard, 1
March 2011, p. 54.
[40]
Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee Hansard, 9
March 2011, p. 66.
[41]
National Broadband Network Companies Bill 2010, clause 41. Explanatory
Memorandum, National Broadband Network Companies Bill 2010 and Telecommunications
Legislation Amendment (National Broadband Network Measures—Access Arrangements)
Bill 2010, p. 6.
[42]
The Hon A. Albanese, MP, Minister for Infrastructure, Transport, Regional
Development and Local Government, House of Representatives Hansard, 1
March 2011, p. 54. Similarly Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee
Hansard, 9 March 2011, p. 66.
[43]
Mr P. Mason, Assistant Secretary, DBCDE, Committee Hansard, 9 March
2011, p. 71.
[44]
Ms C. Lovell, Principal, Regulatory Affairs, NBN Co, Committee Hansard,
9 March 2011, p. 54.
[45]
Senator the Hon P. Wong, Minister for Finance and Deregulation and Senator
the Hon S. Conroy, Minister for Broadband, Communications and the Digital
Economy, Statement of Expectations, December 2010, p. 2 (emphasis
added).
[46]
Exposure Draft (15 February 2010), National Broadband Network Companies
Bill 2010, clause 18.
[47]
For example see submissions on the exposure draft of the National
Broadband Network Companies Bill 2010: Optus, pp 5 and 13.
[48]
National Broadband Network Companies Bill 2010, clause 43.
[49]
National Broadband Network Companies Bill 2010, Division 2, subdivision C,
clause 52.
[50]
ACCAN supported the proposed safeguards. See Ms T. Corbin, Chief
Executive Officer, ACCAN, Committee Hansard 9 March 2011, p. 27.
[51]
Communications Expert Group, Submission 7, p. 4.
[52]
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, pp 103–4.
[53]
ACCAN, Submission 11, p. 4.
[54]
Optus, Submission 17, p. 7; and McKinsey-KPMG, Implementation
Study for the National Broadband Network, 5 March 2010, p. 488.
[55]
National Broadband Network Companies Bill 2010, clause 49(4)(e);
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, p. 7.
[56]
Internode, Submission 6, p. 3; and Communications Expert Group, Submission
7, p. 5.
[57]
Public Works Committee Act 1969, subsection 18(7).
[58]
National Broadband Network Companies Bill 2010, clause 96. NBN Co has
been exempt from PWC Act requirements since 1 July 2010 under regulations
pursuant to subsection 6A(3) of the PWC Act. See also DBCDE, answer to
questions taken on notice, 10 March 2011.
[59]
Explanatory Memorandum, National Broadband Network Companies Bill 2010 and
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, p. 113. Similarly The Hon. A.
Albanese, MP, House of Representatives Hansard, 1 March 2011, pp. 31–32;
and Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee Hansard, 9 March
2011, p. 74.
[60]
Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee Hansard, 9
March 2011, p. 74.
Chapter 3 - The Access Bill
[1]
Formerly the Trade Practices Act 1974.
[2]
Explanatory Memorandum, National Broadband Network Companies Bill 2010
Telecommunications Legislation Amendment (National Broadband Network Measures—Access
Arrangements Bill) 2010, p. 8.
[3]
Explanatory Memorandum, National Broadband Network Companies Bill 2010
Telecommunications Legislation Amendment (National Broadband Network Measures—Access
Arrangements Bill) 2010, p. 9.
[4]
House of Representatives, Votes and Proceedings No. 19, 25
November 2010, p. 266.
[5]
Explanatory Memorandum, Telecommunications Legislation Amendment
(Competition and Consumer Safeguards) Bill 2010, p. 3.
[6]
Explanatory Memorandum, Telecommunications Legislation Amendment
(Competition and Consumer Safeguards) Bill 2010, pp 1–2.
[7]
Explanatory Memorandum, National Broadband Network Companies Bill 2010
Telecommunications Legislation Amendment (National Broadband Network Measures—Access
Arrangements Bill) 2010, p. 9.
[8]
The Hon. L. Tanner, MP, Minister for Finance and Deregulation and
Senator the Hon. S. Conroy, Minister for Broadband, Communications and the
Digital Economy, 'Draft legislation released for NBN Co operations', media
release, 24 February 2010. Submissions on the exposure draft are at: www.dbcde.gov.au/broadband/national_broadband_network/nbn_company_legislation_and_access_regime/national_broadband_network_company_legislation_and_access_regime_-_submissions,
(accessed 16 March 2011).
[9]
Optus, Submission 17, p. 4.
[10]
Senator the Hon P. Wong, Minister for Finance and Deregulation and Senator
the Hon S. Conroy, Minister for Broadband, Communications and the Digital
Economy, Statement of Expectations, December 2010.
[11]
Emphasis added. Proposed subsections 2 and 3 also allows an NBN
corporation to discriminate if there is evidence that an access seeker is not
creditworthy or repeatedly fails to comply with the terms and conditions on
which the same or similar access has been provided. Proposed subsections 152AXC
(7)-(9) also provide that an NBN corporation must not discriminate in favour of
itself unless it has permission in a written instrument made by the Australian
Competition and Consumer Commission.
[12]
Explanatory Memorandum, National Broadband Network Companies Bill 2010
Telecommunications Legislation Amendment (National Broadband Network Measures—Access
Arrangements Bill) 2010, p. 12.
[13]
Mr J. Endres, Senior Regulatory Adviser, NBN Co, Committee Hansard,
9 March 2011, p. 47.
[14]
Internet Society of Australia, Submission 9, p. 3.
[15]
Optus, Submission 17, p. 5.
[16]
Internet Society of Australia, Submission 9, p. 4.
[17]
Optus, Submission 17, p. 8.
[18]
Mr M. Healy, Chair, Competitive Carriers' Coalition (CCC), Committee Hansard,
4 March 2011, pp 15–16.
[19]
Mrs R. Sinclair, Managing Director, Australian Telecommunications Users
Group (ATUG), Committee Hansard, 4 March 2011, p. 52.
[20]
Mr D. Quinlivan, Deputy Secretary, Department of Broadband, Communications
and the Digital Economy (DBCDE), Committee Hansard, 9 March 2011, p. 66.
[21]
Mr M. Cosgrave, Group General Manager, Communications Group, Australian
Competition and Consumer Commission (ACCC), Committee Hansard, 9 March
2011, p. 60.
[22]
Explanatory Memorandum, National Broadband Network Companies Bill 2010
Telecommunications Legislation Amendment (National Broadband Network Measures—Access
Arrangements Bill) 2010, p. 12.
[23]
Communications Expert Group, Submission 7, p.4.
[24]
Optus, Submission 17, p. 5. Similarly Communications Expert Group, Submission
7, p. 4; Austar, Submission 14, p. 6.
[25]
Communications Expert Group, Submission 7, p. 4.
[26]
Telstra, Submission 16, p. 16.
[27]
ATUG, Submission 19, p. 9.
[28]
AAPT, Submission 15, p. 2.
[29]
Mr M. Healy, Chair, CCC, Committee Hansard, 4 March 2011, p. 18.
[30]
Mr D. Forman, Executive Director, CCC, Committee Hansard, 4 March
2011, pp 16–17.
[31]
Mr M. Cosgrave, Group General Manager, Communications Group, ACCC, Committee
Hansard, 9 March 2011, p. 58.
[32]
Explanatory Memorandum, National Broadband Network Companies Bill 2010
Telecommunications Legislation Amendment (National Broadband Network Measures –
Access Arrangements Bill) 2010, p. 13.
[33]
Senator the Hon P. Wong, Minister for Finance and Deregulation and Senator
the Hon S. Conroy, Minister for Broadband, Communications and the Digital
Economy, Statement of Expectations, December 2010.
[34]
NBN Co, Corporate Plan 2011-2013, p. 52.
[35]
McKinsey-KPMG, Implementation Study for the National Broadband Network,
5 March 2010, Recommendations 73 and 74, p. 467.
[36]
Internet Society of Australia, Submission 9. Similarly ATUG, Submission
19.
[37]
ACCAN, Submission 11, p. 5.
[38]
Internode, Submission 6, p. 2. Similarly HaleNET Internet, Submission
8, p. 2.
[39]
Mr T. Dooley, External Legal Representative, Amcom, Committee Hansard,
4 March 2011, p. 7.
[40]
Mr D. Forman, Executive Director, CCC, Committee Hansard, 4 March
2011, p. 19.
[41]
NEXTDC, Submission 18, p. 3.
[42]
iinet, Submission 22, p. 5.
[43]
The Telecommunications Act 1997 provides four definitions of the
term 'network unit'. iinet proposes using the 'network unit' definition in
section 26: a line link that connects distant places in Australia, where the
link is at least 500 metres in length.
[44]
iinet, Submission 22, p. 5
[45]
HaleNET Internet, Submission 8, p. 3.
[46]
TransACT, Submission 13, p. 3.
[47]
TransACT, Submission 13, p. 3.
[48]
Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee Hansard, 9
March 2011, p. 66.
[49]
Internode, Submission 6, p. 2.
[50]
Mr D. Clapperton, Legal Counsel, PIPE Networks, Committee Hansard,
4 March 2011, p. 2.
[51]
Telstra, Submission 16, p. 14.
[52]
Mr D. Clapperton, Legal Counsel, PIPE Networks, Committee Hansard,
4 March 2011, p. 4.
[53]
Mr D. Clapperton, Legal Counsel, PIPE Networks, Committee Hansard,
4 March 2011, p. 3.
[54]
Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee Hansard, 9
March 2011, p. 65.
[55]
Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, Schedule 1, Part 3.
[56]
Internet Society of Australia, Submission 9, p. 3.
[57]
HaleNET Internet, Submission 8, p. 2.
[58]
Internet Society of Australia, Submission 9, p. 3. HaleNET
Internet, Submission 8, p. 2.
[59]
Mr P. Mason, Assistant Secretary, DBCDE, Committee Hansard, 9 March
2011, p. 70.
[60]
Mr D. Quinlivan, Deputy Secretary, DBCDE, Committee Hansard, 9
March 2011, p. 73. Mr Quinlivan explained that he was aware of only one
exception to the general rule.
[61]
Internode, Submission 6, p. 3; Communications Expert Group, Submission
7, p. 5; and ACCAN, Submission 11, p. 5.
[62]
Revised Explanatory Memorandum, National Broadband Network Companies Bill
2010 and Telecommunications Legislation Amendment (National Broadband Network
Measures—Access Arrangements) Bill 2010, p. 15. House of Representatives Hansard,
1 March 2011, pp 57–59.
[63]
Prof. W. Green, Director, Communications Expert Group, Committee
Hansard, 4 March 2011, pp 26–27.
[64]
McKinsey-KPMG, Implementation Study for the National Broadband Network,
5 March 2010, p. 8.
[65]
NBN Co, Corporate Plan 2011–2013, December 2010, p. 23.
[66]
Greenhill Caliburn, Review of NBN Co Limited's corporate plan,
February 2011, p. 1, www.dbcde.gov.au/__data/assets/pdf_file/0015/132711/Review_of_NBN_Co_Limiteds_Corporate_Plan-Executive_Summary.pdf,
(accessed 16 March 2011).