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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL
BROADBAND NETWORK) BILL 2008
FURTHER SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Hon. Stephen Conroy)
TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL
BROADBAND NETWORK) BILL 2008
AMENDMENTS TO BE MOVED ON BEHALF OF THE GOVERNMENT
OUTLINE
The Telecommunications Legislation Amendment (National Broadband Network) Bill
2008 (the Bill) amends the Telecommunications Act 1997 (the Act) to provide for
specified information to be provided by telecommunications carriers to the
Commonwealth, so that this information can be disclosed to companies who are
considering making or intend to make a submission in response to a request for proposal
issued by the Commonwealth for the creation or development of a National Broadband
Network.
The Bill would insert a new Part 27A into the Act (see item 11 of Schedule 1 to the
Bill). Part 27A would set out a scheme for the provision of information as specified by
the Minister in a disallowable instrument, and for the protection of the information that
is provided by carriers. Division 3 of new Part 27A would prohibit disclosure of
protected carrier information except in specified circumstances. These non-disclosure
obligations would apply to any person to whom the information is disclosed under an
exception. Contravention of the non-disclosure obligations would result in a criminal
offence for individuals who fall within the scope of the definition of `entrusted public
official', and in a civil penalty for individuals who fall within the scope of the definition
of `entrusted company officer'.
The proposed amendments would:
· omit Opposition amendments passed in the Senate that are unnecessary,
technically flawed, unclear in their operation or that inappropriately constrain
the Ministerial advisory process in relation to the National Broadband Network;
· re-insert the Government amendment providing a mechanism to deem
information provided by a carrier voluntarily to the Commonwealth prior to, and
within 12 months of, commencement of Part 27A to be protected carrier
information for the purposes of Part 27A following the commencement of that
Part; and
· re-insert the Government amendment removing the requirement that entrusted
public officials give a carrier an opportunity to be heard before he or she makes
a decision to use protected carrier information. This is to avoid the Request for
Proposals process of the National Broadband Network process being
undermined by unnecessary delays.
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FINANCIAL IMPACT STATEMENT
The proposed amendments are not expected to have any significant financial impact on
Commonwealth expenditure or revenue.
2
ABBREVIATIONS
The following abbreviations are used in this further supplementary explanatory
memorandum:
Act: Telecommunications Act 1997
Bill: Telecommunications Legislation Amendment (National
Broadband Network) Bill 2008
Department: Department of Broadband, Communications and the
Digital Economy
Minister: Minister for Broadband, Communications and the Digital
Economy
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NOTES ON AMENDMENTS
Amendment (1)
Amendment (1) would omit the definition of `voluntary disclosure arrangement'. This
definition is used in proposed section 531FA, which is also proposed to be omitted. It is
very unclear how the scheme proposed by the Opposition for the voluntary disclosure of
information in proposed section 531FA is intended to work.
Amendment (2)
Amendment (2) would omit the reference to `An eligible carrier' in the simplified
outline to proposed Part 27A of the Act and replace it with a reference to `A carrier'.
The Opposition has proposed a two-part disclosure regime, one exclusively for
`volunteering carriers' and one for `eligible carriers' who need to be compelled to
provide information. This would create two different approaches to the treatment of
information provided by carriers, which could lead to inconsistencies in outcomes.
Amendment (3)
Amendment (3) would omit words from the simplified outline that attempt to describe
the Opposition's disclosure regime. These words refer to a carrier being exempt from
compulsory disclosure of information under proposed Part 27A where voluntary
disclosure information provided wholly or substantially amounts to compliance with a
direction issued by the Minister. It is not clear what the `direction' is that the Minister
would use to request information - or how it relates to the information the Minister
would require from `eligible carriers' under a legislative instrument under the
compulsory scheme. Indeed, it is not clear when a carrier would be considered to have
satisfied the Minister's direction and a decision could be made that it did not need to be
an `eligible carrier'.
A `voluntary carrier' would be covered by the Opposition's proposed scheme if the
information it provided `substantially amounts to compliance with the Minister's
direction'. This creates the significant risk of the `voluntary provider' determining what
it is it will provide and that the information provided may be inadequate. It is easy to
envisage prolonged legal proceedings over whether a `volunteering carrier' has
substantially complied with the `direction'.
The voluntary regime would be wholly dependent on the Government being able to
agree voluntary disclosure arrangements with the `volunteering carrier'. Agreement of
mutually satisfactory arrangements cannot be guaranteed and so the scheme may not
work. Prolonged discussion of voluntary disclosure arrangements may delay the overall
process.
Amendment (4)
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Amendment (4) would omit the definition of `eligible carrier' in proposed section 531B.
As indicated above, the Opposition has a proposed two-part disclosure regime, one
exclusively for `volunteering carriers' and one for `eligible carriers' who would be
obliged to provide information following the making of an instrument by the Minister
under proposed section 531C. This would create two different approaches to the
treatment of information provided by carriers, which could lead to inconsistencies in
outcomes.
Amendment (5)
Amendment (5) would re-insert a Government amendment that was negatived in the
Senate. It would insert a new paragraph (aa) before paragraph (a) of the definition of
`protected carrier information' in proposed section 531B.
Proposed section 531B defines `protected carrier information' as any information that is
given to an authorised information officer under proposed section 531F or has been
disclosed as permitted by particular provisions of Division 3 of new Part 27A.
Amendment (5) would expand the definition of `protected carrier information' to
include any information that was given by a carrier to an authorised information officer
(as defined in proposed section 531B) during the period between 27 February 2008 and
12 months after the date of commencement of new Part 27A, provided that an
undertaking, given by an authorised information officer on behalf of the
Commonwealth, that meets the requirements of the definition has been provided to the
carrier after the information has been provided. The Minister wrote to a number of
carriers on 27 February 2008 concerning the voluntary provision of information. The
period during which voluntary information could be received and treated as protected
carrier information would end 12 months after the commencement of new Part 27A for
consistency with the sunsetting of the obligation on carriers to provide information in an
instrument made under proposed section 531C (see proposed subsection 531F(3) in
item 11 of Schedule 1 to the Bill).
In order for voluntarily provided information to fall within the definition of protected
carrier information, the authorised information officer would need to undertake to treat
the information provided as protected carrier information for the purposes of Part 27A
after commencement of that Part. The purpose of this requirement is to ensure that the
authorised information officer can satisfy herself or himself that the information
provided meets the Commonwealth's requirements and is appropriate to be treated as
protected carrier information before the information will be deemed to be such. In
addition, the authorised information officer would need to undertake not to disclose the
information before the commencement of new Part 27A. The purpose of this
requirement is to ensure that the operation of the proposed amendment would not result
in the retrospective application of the criminal offence and civil penalty provisions in
new Part 27A.
If these requirements have been met, the information provided would be deemed to be
protected carrier information for the purposes of new Part 27A, so that the provisions of
Part 27A would apply to such information from the date of commencement of Part 27A
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and such information would be subject to the prohibitions on use and disclosure, and the
exceptions to those prohibitions, contained in new Part 27A.
Amendment (6)
Amendment (6) would omit references to `eligible carrier' from proposed section 531C
(which enables the Minister to make an instrument specifying information to be
provided by specified carriers) and replaces them with references to `carrier'.
As indicated above, the Opposition has a proposed two-part disclosure regime, one
exclusively for `volunteering carriers' and one for `eligible carriers' who would be
obliged to provide information following the making of an instrument by the Minister
under proposed section 531C. This would create two different approaches to the
treatment of network data, which could lead to inconsistencies in outcomes.
Amendment (7) to (9)
Amendment (7) would omit references to `eligible carrier' from the heading to Division
2 of new Part 27A, from the heading to proposed section 531F, and from proposed
section 531F, wherever occurring, and replace them with references to `carrier'.
Amendment (10)
Amendment (10) would omit proposed section 531FA, which reflects the Opposition's
scheme relating to the voluntary disclosure of information by carriers to the
Commonwealth.
The Opposition has proposed a scheme of its own aimed at providing some kind of
protection to information provided voluntarily. It is very unclear how the scheme is
intended to work or that it offers much in the way of protection to information provided
voluntarily, given that the use and disclosure of such information would be dealt with in
the voluntary disclosure arrangements.
It appears that the Opposition's approach would effectively create a two-part regime,
one exclusively for `volunteering carriers' and one for `eligible carriers'. As mentioned
above, this in itself would create two different approaches to the treatment of
information provided by different carriers, which may lead to inconsistencies in
outcomes.
The voluntary disclosure regime would be wholly dependent on the Government being
able to agree voluntary disclosure arrangements with the `volunteering carriers'.
Agreement of mutually satisfactory arrangements cannot be guaranteed and so the
scheme may not work. Prolonged discussion of such arrangements may delay the
overall process.
The ability to provide information to potential proponents - which is the fundamental
objective of proposed Part 27A - appears to be wholly dependent on the contents of the
contracts or confidentiality deeds that could be made under the "voluntary disclosure
arrangements".
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The scheme appears only to offer the carrier providing the information the protections
in the contracts or confidentiality deeds. It does not provide the strong statutory
protections provided elsewhere in the Bill and it does not set out the purposes for which
information could be disclosed or used, as that would be left for the voluntary
disclosure arrangements made between the carriers and the Commonwealth. It is
difficult to imagine the Government would agree to protections greater than those in the
Bill, or that a `volunteering carrier' would agree to anything less. It is therefore unclear
the extent to which information would voluntarily be provided under the scheme.
Amendment (11)
Amendment (11) would omit proposed subsection 531G(1A), which was inserted by an
Opposition amendment moved in the Senate. Proposed subsection 531G(1A) would
prevent an entrusted public official from using protected carrier information for any
purpose apart from the preparation of proposals for the National Broadband Network.
This provision is unduly restrictive and is inconsistent with the exceptions to the
prohibition on use of protected carrier information contained in proposed subsection
531G(3A).
Amendment (12)
Amendment (12) would re-insert a Government amendment that was negatived in the
Senate. It would amend proposed section 531G by inserting a new subsection
531G(4A) after proposed subsection 531G(4). This amendment would provide that an
entrusted public official is not required to give a carrier an opportunity to be heard in
relation to a decision to use protected carrier information. This is consistent with
proposed subsection 531G(4) and has the same purpose of ensuring that the intended
purpose of Part 27A, which is to facilitate the conduct of a request for proposal process
for the development of a National Broadband Network, is not undermined by delays
created by the potential need for an entrusted public official to consult with a carrier
every time an official proposes to use information in reliance on one of the exceptions
in proposed section 531G. This provision is intended to displace any common law
obligation to consult a carrier. However, a consultation process is provided for by the
Bill at the beginning of the process (prior to the provision of the information by
carriers), which is the making of an instrument under subsection 531C(4).
Amendments (13) and (14)
Amendment (13) would omit proposed subsection 531K(1A), which was inserted by an
Opposition amendment moved in the Senate. Proposed subsection 531K(1A) would
prevent an entrusted company office from using protected carrier information for any
purpose apart from the preparation of proposals for the National Broadband Network.
This provision is unduly restrictive and is inconsistent with the exceptions to the
prohibition on use of protected carrier information contained in proposed subsection
531K(2A).
Amendment (14) is consequential upon Amendment (13).
Amendment (15)
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Amendment (15) would omit proposed paragraph 531L(1)(ca) which was inserted by an
Opposition amendment passed in the Senate. This amendment is unnecessary having
regard to paragraph 531L(1)(d), which requires the Court to be satisfied that a company
expressly, tacitly or impliedly authorised or permitted a contravention of proposed
section 531K before making an order that the Court considers appropriate directing the
company to compensate a carrier who has suffered loss or damage as a result of the
contravention.
Amendment (16)
Amendment (16) would omit proposed subsection 531L(2), which was an Opposition
amendment passed by the Senate. Although the operation of this amendment is unclear,
it appears to attempt to allow the Court to make an order directing the Commonwealth
to compensate a carrier who has suffered loss or damage as a result of an unauthorised
disclosure or use of protected information by an entrusted public official acting within
the course of the official's employment or within the official's actual or apparent
authority. This amendment is unnecessary given that entrusted public officials are
already subject to criminal liability under proposed section 531G for the unauthorised
disclosure or use of protected information.
Amendment (17)
Amendment (17) would replace proposed subsection 531P(1), which was an Opposition
amendment passed by the Senate requiring, rather than permitting, the Minister to make
rules relating to the storage, handling or destruction of protected carrier information,
with a new subsection 531P(1) in the form contained in the Bill as introduced. The
Opposition amendment is overly prescriptive. It may be possible for issues connected
with storage, handling or destruction of protected carrier information to be dealt with
administratively by the Department rather than by way of a legislative instrument made
by the Minister.
Amendment (18)
Amendment (18) would omit Division 4 of proposed Part 27A of the Act, which was
introduced as a result of an Opposition amendment passed by the Senate. Division 4
would deal with the Ministerial advisory process in relation to the National Broadband
Network, including the Panel of Experts and an interdepartmental and multi-agency
committee.
Proposed Division 4 is unnecessary, it would increase costs associated with the National
Broadband Network project and inappropriately constrains the Ministerial advisory
process in relation to the project. A Panel of Expert and interdepartmental committee
have already been established and are in operation. In addition, many of the procedural
requirements contained in proposed Division 4 are already reflected in current
arrangements.
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