TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK) BILL 2008

2008

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

No. , 2008

(Broadband, Communications and the Digital Economy)

A Bill for an Act to amend legislation relating to telecommunications, and for other purposes

Contents

A Bill for an Act to amend legislation relating to telecommunications, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Telecommunications Legislation Amendment (National Broadband Network) Act 2008.

2 Commencement

This Act commences on the day after it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendments

Telecommunications Act 1997

1 Section 7

Insert:

ACCC official means a Commission official within the meaning of section 155AAA of the Trade Practices Act 1974.

2 Section 7

Insert:

ACMA official has the same meaning as in the Australian Communications and Media Authority Act 2005.

3 Section 7

Insert:

authorised information officer has the meaning given by section 531B.

4 Section 7 (after paragraph (h) of the definition of civil penalty provision)

Insert:

(ha) subsection 531K(1); or

(hb) subsection 531K(3); or

(hc) subsection 531P(3); or

(hd) subsection 531P(4); or

5 Section 7

Insert:

designated information has the meaning given by section 531C.

6 Section 7

Insert:

designated request for proposal notice has the meaning given by section 531D.

7 Section 7

Insert:

entrusted company officer has the meaning given by section 531B.

8 Section 7

Insert:

entrusted public official has the meaning given by section 531B.

9 Section 7

Insert:

protected carrier information has the meaning given by section 531B.

10 Section 7

Insert:

restricted recipients rules means rules made under section 531N.

11 After Part 27

Insert:

Part 27A--Information relating to a broadband telecommunications network

Division 1--Introduction

531A Simplified outline

The following is a simplified outline of this Part:

• A carrier must give information (protected carrier information) to an authorised information officer.

• Protected carrier information must not be disclosed except as permitted by this Part.

• Protected carrier information may be disclosed to a Minister or other public official for the purposes of considering Commonwealth action in relation to a proposal that is:

(a) for the creation or development of a telecommunications network that is capable of carrying communications on a broadband basis; and

(b) set out in a submission made by a company in response to a designated request for proposal notice.

• Protected carrier information may be disclosed to an officer of a company that:

(a) is considering making a submission in response to a designated request for proposal notice; or

(b) intends to make such a submission.

531B Definitions

In this Act:

authorised information officer means a person for whom an appointment as an authorised information officer is in force under section 531M.

entrusted company officer, in relation to a company, means:

(a) a director of the company; or

(b) an employee of the company; or

(d) an individual engaged to provide services to the company; or

(e) an employee or director of a body corporate engaged as a consultant to the company; or

(f) an employee or director of a body corporate engaged to provide services to the company; or

(g) an individual who is a partner in, or employee of, a partnership engaged as a consultant to the company; or

(h) an individual who is a partner in, or employee of, a partnership engaged to provide services to the company; or

(i) an individual who is an officer or employee of a body politic that provides services to the company; or

(j) an individual engaged as a consultant to a body politic that provides services to the company; or

(k) an individual engaged to provide services to a body politic that provides services to the company; or

(l) an employee or director of a body corporate engaged as a consultant to a body politic that provides services to the company; or

(m) an employee or director of a body corporate engaged to provide services to a body politic that provides services to the company; or

(n) an individual who is a partner in, or employee of, a partnership engaged as a consultant to a body politic that provides services to the company; or

(o) an individual who is a partner in, or employee of, a partnership engaged to provide services to a body politic that provides services to the company; or

(p) an employee or director of a body corporate that provides services to the company; or

(q) an individual engaged as a consultant to a body corporate that provides services to the company; or

(r) an individual engaged to provide services to a body corporate that provides services to the company; or

(s) an employee or director of a body corporate engaged as a consultant to a body corporate that provides services to the company; or

(t) an employee or director of a body corporate engaged to provide services to a body corporate that provides services to the company; or

(u) 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; or

(v) an individual who is a partner in, or employee of, a partnership engaged to provide services to a body corporate that provides services to the company.

The paragraphs of this definition are to be read independently of each other.

entrusted public official means:

(a) a Minister; or

(b) a Secretary of a Department; or

(d) a member of a committee established under the executive power of the Commonwealth; or

(e) an ACCC official; or

(f) an ACMA official; or

(g) the Director-General of the Australian Security Intelligence Organisation; or

(h) an individual engaged as a consultant to the Commonwealth; or

(i) an individual engaged to provide services to the Commonwealth; or

(j) an employee or director of a body corporate engaged as a consultant to the Commonwealth; or

(k) an employee or director of a body corporate engaged to provide services to the Commonwealth; or

(l) an individual who is a partner in, or an employee of, a partnership engaged as a consultant to the Commonwealth; or

(m) an individual who is a partner in, or an employee of, a partnership engaged to provide services to the Commonwealth.

The paragraphs of this definition are to be read independently of each other.

protected carrier information means:

(a) any information that was given to an authorised information officer under section 531F; or

(b) any information that was disclosed under paragraph 531G(2)(a), (b), (c), (d), (e), (f) or (g), subsection 531H(1) or paragraph 531K(2)(a) or (b).

531C Designated information

(1) The Minister may, by written instrument, determine that:

(a) specified information is designated information for the purposes of the application of this Act to a specified carrier; and

(b) a specified manner is the approved manner in which a specified carrier is to give designated information to an authorised information officer under section 531F; and

(c) a specified form is the approved form in which a specified carrier is to give designated information to an authorised information officer under section 531F; and

(d) a specified number of business days is the approved period within which a specified carrier is to give designated information to an authorised information officer under section 531F.

Note: For specification by class, see subsection 46(3) of the Acts Interpretation Act 1901.

(2) A number specified under paragraph (1)(d) must not be less than 10.

(3) Subsection (1) has effect only to the extent that:

(a) it is authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution); or

(b) both:

(i) it is authorised by section 122 of the Constitution; and

(ii) it would have been authorised by paragraph 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix) of the Constitution) if section 51 of the Constitution extended to the Territories.

Consultation

(4) Before making an instrument under subsection (1) that relates to a carrier, the Minister must first:

(a) cause the carrier to be given a written notice that:

(i) sets out a draft version of the instrument; and

(ii) invites the carrier to make submissions to the Minister on the draft within 3 business days after the notice was given; and

(b) consider any submissions that were received within those 3 business days.

Publication of instrument

(5) A copy of an instrument made under subsection (1) is to be published on the Internet.

Business day

(6) For the purposes of this section, business day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

Disallowable non-legislative instrument

(7) An instrument made under subsection (1) is a disallowable instrument for the purposes of section 46B of the Acts Interpretation Act 1901.

(8) An instrument made under subsection (1) is not a legislative instrument.

531D Designated request for proposal notice

(1) For the purposes of this Act, a designated request for proposal notice is a notice that:

(a) is published:

(i) on the Internet; and

(ii) in the exercise of the executive power of the Commonwealth; and

(b) invites companies to make submissions to the Commonwealth setting out proposals for the creation or development of a telecommunications network that:

(i) is capable of carrying communications on a broadband basis; and

(ii) meets the requirements specified in the notice; and

(2) For the purposes of subsection (1), it is immaterial whether the notice specifies one or more requirements that a company must meet in order to be eligible to make a submission in response to the invitation set out in the notice.

531E Action by the Commonwealth

For the purposes of this Part, action by the Commonwealth includes:

(a) expenditure by the Commonwealth; and

(b) the introduction of a Bill into a House of the Parliament.

Division 2--Carriers must give information to an authorised information officer

531F Carriers must give information to an authorised information officer

Scope

(1) This section applies to a carrier if:

(a) an instrument under subsection 531C(1) comes into force; and

(b) the effect, or any of the effects, of the instrument is that particular information is designated information for the purposes of the application of this Act to the carrier.

Requirement

(2) The carrier must give the information to an authorised information officer, in the approved manner and the approved form, within the approved period after the instrument came into force.

Note 1: See the carrier licence condition in Part 1 of Schedule 1.

Note 2: For approved manner, approved form and approved period, see subsection 531C(1).

Note 3: Information given to an authorised information officer under this section is protected carrier information--see the definition of protected carrier information in section 531B.

Sunset

(3) Subsections (1) and (2) cease to have effect at the end of the period of 12 months beginning on the day on which this subsection commenced.

Division 3--Protection of information

531G Protection of information--entrusted public officials

(1) If a person has obtained protected carrier information in the person's capacity as an entrusted public official, the person must not disclose the information to another person.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the information is disclosed to the Cabinet for the purposes of the consideration by the Cabinet of:

(i) a matter preparatory to the publication of a designated request for proposal notice; or

(ii) the approach to be taken in relation to the consideration of 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; or

(iii) action to be taken by the Commonwealth or a 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; or

(iv) a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

(b) the information is disclosed to a Minister for the purposes of the consideration by the Minister of:

(i) a matter preparatory to the publication of a designated request for proposal notice; or

(iii) action to be taken by the Commonwealth or a 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; or

(iv) a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

(i) the Cabinet; or

(ii) a Minister; or

(iii) a Secretary of a Department;

about:

(iv) a matter preparatory to the publication of a designated request for proposal notice; or

(v) the approach to be taken in relation to the consideration of 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; or

(vi) action to be taken by the Commonwealth or a 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; or

(vii) a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

(d) the information is disclosed to another entrusted public official for the purposes of the Australian Security Intelligence Organisation, the ACCC or the ACMA giving advice to:

(i) the Commonwealth; or

(ii) a Minister; or

(iii) a committee established under the executive power of the Commonwealth;

in relation to:

(iv) a matter preparatory to the publication of a designated request for proposal notice; or

(vi) action to be taken by the Commonwealth or a 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; or

(vii) a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

(e) the information is disclosed to another entrusted public official for a purpose specified in the regulations;

(f) the information is disclosed to another entrusted public official for the purposes of:

(i) giving advice to an authorised information officer in relation to action to be taken by the officer under section 531H; or

(ii) assisting an authorised information officer in relation to the exercise of the officer's powers under section 531H;

(g) the information is disclosed by an authorised information officer to another authorised information officer for the purposes of:

(i) enabling the other authorised information officer to make a decision under section 531H; or

(ii) enabling the other authorised information officer to disclose the information under section 531H;

(h) the disclosure is authorised by section 531H;

(i) the carrier who gave the information to an authorised information officer has consented to the disclosure of the information;

(j) the information has been made publicly known by:

(i) the carrier who gave the information to an authorised information officer; or

(ii) a person authorised by the carrier to make the information publicly known;

(k) the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory.

(3) Paragraph (2)(e) ceases to have effect at the end of the period of 12 months beginning on the day on which this subsection commenced.

(4) An entrusted public official is not required to give a carrier an opportunity to be heard in relation to a decision to disclose information under subsection (2).

(5) If a person has obtained protected carrier information in the person's capacity as an entrusted public official, section 70 of the Crimes Act 1914 has effect, in relation to the information, as if the person were a Commonwealth officer.

531H Disclosure of protected carrier information to a company

(1) If:

(a) a designated request for proposal notice has been published; and

(b) a company notifies an authorised information officer, in writing, that:

(i) the company is considering making a submission in response to the invitation set out in the notice; or

(ii) the company intends to make a submission in response to the invitation set out in the notice; or

(iii) the company has made a submission in response to the invitation set out in the notice, and is considering varying the submission; or

(iv) the company has made a submission in response to the invitation set out in the notice, and intends to vary the submission; and

(c) if a determination is in force under subsection (3)--the notification is accompanied by such information as is specified in the determination; and

(d) if a determination is in force under subsection (4)--an authorised information officer is satisfied that the conditions set out in the determination are met; and

(e) if the designated request for proposal notice specifies one or more requirements that a company must meet in order to be eligible to make a submission in response to the invitation set out in the notice--an authorised information officer is satisfied that the company has met those requirements; and

(f) a carrier has given protected carrier information to an authorised information officer;

an authorised information officer may disclose the information to an entrusted company officer of the company for the purposes of:

(g) the consideration by the company of whether to make a submission in response to the invitation set out in the designated request for proposal notice; or

(h) the preparation of a submission by the company in response to the invitation set out in the designated request for proposal notice; or

(i) if the company has made a submission in response to the invitation set out in the designated request for proposal notice--the consideration by the company of whether to vary the submission; or

(j) if the company has made a submission in response to the invitation set out in the designated request for proposal notice--the preparation by the company of a variation of the submission;

so long as the disclosure complies with any applicable restricted recipients rules.

(2) An authorised information officer is not required to give a carrier an opportunity to be heard in relation to a decision to disclose information under subsection (1).

(3) The Minister may, by legislative instrument, make a determination specifying information for the purposes of paragraph (1)(c).

(4) The Minister may, by legislative instrument, make a determination setting out conditions for the purposes of paragraph (1)(d).

531J Stay of decisions

(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to disclose information under subsection 531G(2) or 531H(1).

(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to disclose information under subsection 531G(2) or 531H(1), the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application.

531K Protection of information--entrusted company officer

(1) If a person has obtained protected carrier information in the person's capacity as an entrusted company officer of a company, the person must not disclose the information to another person.

(2) Each of the following is an exception to the prohibition in subsection (1):

(a) the disclosure is to another entrusted company officer of the company for the purposes of:

(i) the consideration by the company of whether to make a submission in response to an invitation set out in a designated request for proposal notice; or

(ii) the preparation of a submission by the company in response to an invitation set out in a designated request for proposal notice; or

(iii) if the company has made a submission in response to an invitation set out in a designated request for proposal notice--the consideration by the company of whether to vary the submission; or

(iv) if the company has made a submission in response to an invitation set out in a designated request for proposal notice--the preparation by the company of a variation of the submission;

so long as the disclosure complies with any applicable restricted recipients rules;

(b) the information is disclosed in:

(i) a submission of the company made in response to an invitation set out in a designated request for proposal notice; or

(ii) a variation of such a submission;

(c) the carrier who gave the information to an authorised information officer has consented to the disclosure of the information;

(d) the information has been made publicly known by:

(i) the carrier who gave the information to an authorised information officer; or

(ii) a person authorised by the carrier to make the information publicly known;

(e) the disclosure is in compliance with a requirement under a law of the Commonwealth, a State or a Territory.

(3) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

(4) Subsections (1) and (3) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

531L Compensation of carrier for loss or damage

(1) If:

(a) protected carrier information was given to an authorised information officer by a carrier; and

(b) the Federal Court is satisfied that an entrusted company officer of a company has contravened subsection 531K(1) or (3) in relation to the information; and

(d) the Court is satisfied that the company expressly, tacitly or impliedly authorised or permitted the contravention;

the Court may, on the application of the carrier, make an order that the Court considers appropriate directing the company to compensate the carrier.

(2) An application under subsection (1) may be made at any time within 6 years after the contravention occurred.

531M Appointment of authorised information officers

The Minister may, in writing, appoint an SES employee to be an authorised information officer for the purposes of this Act.

Note 1: The expression SES employee is defined in section 17AA of the Acts Interpretation Act 1901.

Note 2: For revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

531N Restricted recipients rules

(1) The Minister may, by legislative instrument, make rules (the restricted recipients rules) restricting or limiting the entrusted company officers to whom information may be disclosed under subsection 531H(1) or paragraph 531K(2)(a).

(2) The restricted recipients rules may make different provision with respect to the disclosure of information in different circumstances.

(3) Subsection (2) does not limit subsection 33(3A) of the Acts Interpretation Act 1901.

(4) The restricted recipients rules may make provision with respect to a matter by conferring on an APS employee a power to make a decision of an administrative character.

Note: The expression APS employee is defined in section 17AA of the Acts Interpretation Act 1901.

(5) The restricted recipients rules may provide for the payment of a fee in respect of the making of such a decision.

(6) A fee imposed under subsection (5) must not be such as to amount to taxation.

531P Storage, handling or destruction of protected carrier information

(1) The Minister may, by legislative instrument, make rules relating to the storage, handling or destruction of protected carrier information.

(2) Rules in force under subsection (1), to the extent to which they relate to protected carrier information given to an authorised information officer by a carrier, must not impose any requirements or prohibitions on the carrier.

(3) A person must comply with rules in force under subsection (1).

(4) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (3); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (3); or

(d) conspire with others to effect a contravention of subsection (3).

(5) Subsections (3) and (4) are civil penalty provisions.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

531Q Submissions by companies

For the purposes of this Part, it is immaterial whether a company's submission:

(a) is made by the company alone; or

(b) is made by the company jointly with one or more other companies.

Telecommunications Legislation Amendment (National Broadband Network) Bill 2008 No. , 2008

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