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Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

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5477

2008

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Amendments to the Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

 

 

(1)     Schedule 1, page 4 (after line 15), after item 10, insert:

10A Section 7

Insert:

voluntary disclosure arrangement has the meaning given by section 531FA.

[definition]

(2)     Schedule 1, item 11, page 4 (line 23), omit “A carrier”, substitute “An eligible carrier”.

[heading]

(3)     Schedule 1, item 11, page 5 (after line 17), at the end of the text box in section 531A, add:

•           If a carrier enters into a voluntary disclosure arrangement:

(a)     information subject to the voluntary disclosure arrangement may be disclosed or used only as specified in the arrangement; and

(b)     the carrier is exempt from compulsory disclosure of any information under this Part where voluntary disclosure information provided wholly or substantially amounts to compliance with a direction issued by the Minister.

[outline of voluntary disclosure]

(4)     Schedule 1, item 11, page 5 (after line 22), after the definition of authorised information officer in section 531B, insert:

eligible carrier means a carrier other than a carrier in relation to which section 531FA applies.

[definition]

(5)     Schedule 1, item 11, page 8 (line 1) to page 9 (line 5), omit “carrier” (wherever occurring), substitute “eligible carrier”.

[eligible carriers]

(6)     Schedule 1, item 11, page 10 (line 10), omit “ Carriers ”, substitute “ Eligible carriers ”.

[heading]

(7)     Schedule 1, item 11, page 10 (line 12), omit “ Carriers ”, substitute “ Eligible carriers ”.

[heading

(8)     Schedule 1, item 11, page 10 (lines 15 to 24), omit “carrier” (wherever occurring), substitute “eligible carrier”.

[eligible carriers]

(9)     Schedule 1, item 11, page 11 (after line 4), at the end of Division 2, add:

531FA  Voluntary disclosure of information

When section applies in relation to a carrier

             (1)  This section applies in relation to a carrier (a volunteering carrier ) if, whether before or after the commencement of this Part, the volunteering carrier has entered into an arrangement with the Commonwealth (a voluntary disclosure arrangement ), whether by way of contract, confidentiality deed or other documentary form, which provides for volunteering carriers’ information ( volunteered information ) to be disclosed to:

                     (a)  companies making or considering the making of submissions in response to an invitation set out in a designated request for proposal notice; and/or

                     (b)  the Commonwealth in connection with a designated request for proposal notice.

Effect of voluntary disclosure

             (2)  If a person has obtained volunteered information pursuant to a voluntary disclosure arrangement, the person must not disclose that information to any other person where that disclosure would be or would result in a breach by any person of the voluntary disclosure arrangement.

             (3)  To avoid doubt, a reference to a voluntary disclosure arrangement includes a reference to undertakings given by way of contract, confidentiality deed or other documentary form to the volunteering carrier by a person receiving information pursuant to the arrangement.

Offences and civil penalties

             (4)  Subsection (2) is a civil penalty provision in its application to a person other than a person who has obtained the volunteered information in the person’s capacity as an entrusted public official.

             (5)  For the purposes of subsection (4), if conduct is engaged in by an employee, agent or officer of a corporation or partnership acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the conduct must also be attributed to the corporation or partnership.

             (6)  If a person has obtained volunteered information in the person’s capacity as an entrusted public official pursuant to the voluntary disclosure arrangement, section 70 of the Crimes Act 1914 has effect in relation to the information as if the person were a Commonwealth officer.

[voluntary disclosure arrangements]

(10)   Schedule 1, item 11, page 11 (after line 9), after subsection 531G(1), insert:

          (1A)  If a person has obtained protected carrier information in the person’s capacity as an entrusted public official, the person must not use the disclosed information for any other purpose whatsoever except for the preparation of proposals for the National Broadband Network.

[non-disclosure—public official]

(11)   Schedule 1, item 11, page 16 (after line 4), after subsection 531k(1), insert:

          (1A)  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 use the disclosed information for any other purpose whatsoever except for the preparation of proposals for the National Broadband Network.

[non-disclosure—entrusted company officer]

(12)   Schedule 1, item 11, page 17 (lines 4 to 11), omit “subsection (1)” (wherever occurring), substitute “subsections (1) and (1A)”.

[offence to disclose information]

(13)   Schedule 1, item 11, page 17 (after line 23), after paragraph 531L(1)(c), insert:

                    (ca)  the Court is satisfied that the conduct of an entrusted company officer can be attributed as a liability to the company after considering the following factors:

                              (i)  the actual or apparent scope of the entrusted company officer’s employment; or

                             (ii)  the actual or apparent authority of the entrusted company officer’s employment; and

[company liable for it’s officer’s action]

(14)   Schedule 1, item 11, page 17 (lines 29 and 30), omit subsection 531L(2), substitute:

             (2)  Subsection (1) applies to:

                     (a)  an entrusted public official in the same way as it does to an entrusted company officer; and

                     (b)  an agency of the Commonwealth as it does to a company.

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

[penalties for public official and Commonwealth]

(15)   Schedule 1, item 11, page 18 (lines 25 to 27), omit subsection 531P(1), substitute:

             (1)  The Minister must, by legislative instrument, make rules relating to the storage, handling or destruction of protected carrier information before the Commonwealth receives any protected carrier information.

[protected information rules]

(16)   Schedule 1, item 11, page 19 (line 17), at the end of Part 27A, add:

Division 4—Ministerial advisory process

531R  Purpose of Division

The purpose of this Division is to provide for processes to:

                     (a)  ensure rigorous, independent and transparent advice is provided to the Minister in relation to the National Broadband Network.

                     (b)  ensure proper expert advice is included in the process mentioned in paragraph (a); and

                     (c)  guarantee public information about the National Broadband Network.

531S  Expert Panel

             (1)  An Expert Panel to examine, consult and provide advice to the Minister in relation to proposals and tenders for the National Broadband Network is established by this section.

             (2)  The Expert Panel will provide rigorous, independent and transparent advice to the Minister to ensure that any decision, action or any transaction that may be undertaken as part of or related to the National Broadband Network Program is determined objectively and reflects a sound, principled, robust and durable involvement of the Commonwealth.

             (3)  The Minister must seek the advice of the Expert Panel on the evaluation of proposals for the National Broadband Network in relation to all the matters in subsection (4).

             (4)  The Expert Panel is to examine, publicly consult and provide advice to the Minister, with that advice to be publicly released within 7 days of being provided to the Minister, in relation to:

                     (a)  options in relation to the nature, scope, cost and the potential benefits of credible forms of government intervention required to achieve the Government’s stated public policy objectives;

                     (b)  the identification of existing assets and opportunities for improved performance and efficiencies, determination of priorities for action according to need and future forecasts, the planning of future public and private investments and the mechanisms to drive investment to where it is needed, and the establishment of a sound and complementary best practice public policy framework;

                     (c)  the formulation and administration of the public policy framework within which the National Broadband Network proposal is to operate;

                     (d)  the role, impact and any proposed variation to the telecommunications industry regulatory framework relevant to National Broadband Network proposals;

                     (e)  requirements and actions that contribute to optimising the competitive tensions of the National Broadband Network tender process and which facilitate accurately designed and costed proposals;

                      (f)  the adherence of the tender process to the better practice guidance and advice of the Auditor-General and the principles of fairness, transparency, probity and value for money;

                     (g)  the implications of proposed actions, decisions and public funding on consumer choice, costs and protection, competition, private investment, inflation and national productivity;

                     (h)  the role of government and its relationship with the private sector and existing private investment in the telecommunications sector;

                      (i)  the nature of any compensation or other remedies required to address any detriment, economic loss or disadvantage to consumers, property holders, businesses and related interests;

                      (j) the future role, operation and responsibility for any network infrastructure likely to be rendered redundant, underutilised or excess to requirement as a result of National Broadband Network decisions and actions;

                     (k)  the interaction with and revision of community service obligations and subsidies for services to disadvantaged areas and consumers;

                      (l)  any dispute arising from the operation of this Act including but not limited to:

                              (i)  the formulation, content and administration of instruments created under this Act;

                             (ii)  the type, scope and presentation of information required to facilitate a competitive bid process;

                            (iii)  the handling, availability and use of protected information;

                            (iv)  the situation where a carrier believes it has wholly or substantially voluntarily satisfied a requirement to produce protected carrier information demanded in an instrument;

                            (iv)  the nature, conclusions and public release of the advice provided to the Minister by the expert panel.

(5)     The Expert Panel is to be provided with such assistance as it requires from Commonwealth Government agencies and departments.

                Note:        Better practice in guidance  paragraph (4)(f) refers to the August 2007 report of the Auditor-General entitled “Fairness and Transparency in Purchasing Decisions (Probity in Australian Government Procurement) and Commonwealth Procurement Guidelines”.

[purpose of division]

531T  Appointment of the Expert Panel

             (1)  Members (including the Chair) of the Expert Panel are to be appointed by the Minister by written instrument.

             (2)  In making appointments under subsection (1), the Minister must ensure that:

                     (a)  he or she is satisfied that each member has knowledge of, or experience in, a field relevant to the objectives of the National Broadband Network;

                     (b)  the Expert Panel is capable of objectively and competently evaluating and recommending a sound, principled, robust and durable involvement of the Commonwealth in the National Broadband Network;

                     (c)  the analysis by the Expert Panel of possible options for Commonwealth involvement is rigorous, independent and transparent;

                     (d)  the Expert Panel comprises members with expertise including but not limited to:

                              (i)  public policy formulation and evaluation;

                             (ii)  technical expertise including network architecture, interconnection and emerging technology;

                            (iii)  regulatory framework, open access, competition and pricing practice;

                            (iv)  private sector telecommunications wholesale and retail business experience;

                             (v)  contemporary broadband investment, law and finance;

                            (vi)  network design, technical option and functionality of the 'last mile' link to premises;

                     (e)  specified appointees include:

                              (i)  the Australian Competition and Consumer Commission chairperson or delegate;

                             (ii)  the Productivity Commission chairperson or delegate;

                            (iii)  the Infrastructure Australia chairperson, nominee or senior executive;

                            (iv)  a consumer interest advocate selected from nominations provided by the Australian Telecommunications Users Group;

                             (v)  the Secretary of the Department of Treasury;

                            (vi)  the Secretary of the responsible Minister's department;

                           (vii)  any other expertise the Minister considers necessary to ensure value for taxpayer money;

                      (f)  the Expert Panel will comprise a majority of appointees with private sector expertise;

                     (g)  the Expert Panel is provided with such assistance as it requires from Commonwealth Government agencies and departments.

[Expert Panel]

531U  Interdepartmental and multi-agency committee

             (1)  The Minister may establish an interdepartmental and multi-agency committee to examine, consult and provide advice to the Minister.

             (2)  The interdepartmental and multi-agency committee membership is to comprise, but is not limited to, senior representatives from:

                     (a)  the Australian Competition and Consumer Commission;

                     (b)  the Productivity Commission;

                     (c)  Infrastructure Australia;

                     (d)  the Department of Treasury;

                     (e)  the responsible Minister's department;

                      (f)  external relevant and competent expertise consistent with that listed in paragraph 531T(2)(d).

             (3)  The interdepartmental and multi-agency committee must provide advice to the Minister on any matter referred to it by the Minister consistent with the matters referred to in subsection 531S(4).

[interdepartmental committee]

531V  Disclosure

             (1)  The Expert Panel must prepare and maintain minutes of its meetings and publish a form of its minutes that ensure public disclosure of its deliberations and conclusions, recognising the public interest and investment involved while respecting commercial-in-confidence considerations and national security considerations.

             (2)  The Department of Broadband, Communications and the Digital Economy will work with the Attorney-Generals Department and other national security agencies to deal with any national security risk or consideration in determining what material is released as part of the public disclosure of the Expert Panels deliberations, analysis and conclusions.

[public disclosure and security]

531W  Dispute resolution

             (1)  A protected network information provider or recipient may challenge the scope, content, adequacy, presentation, compliance with, safeguards and protections encompassed in the prescribed form.

             (2)  Disputes are to be notified in writing to the Minister.

             (3)  The Minister must cause the dispute notification to be published and referred to the Expert Panel for advice.

             (4)  The Expert Panels advice in relation to the dispute, the Minister's assessment of the merit of the dispute and the Minister's final determination of the matter must be published within 3 working days of a determination being made.

[dispute resolution process]

531X  Minister's directions

             (1)  The Minister may give written directions to the Expert Panel about its role, functions and performance as set out in section 531S.

             (2)  The Minister must have regard to the current telecommunications legislative and regulatory environments and the role, function and determinations of the Australian Competition and Consumer Commission in giving directions under subsection (1).

             (3)  Directions given by the Minister under subsection (1) must be of a general nature only.

             (4)  The Minister must cause any direction he or she gives under subsection (1) to be published and notified to prospective bidders within 3 working days of the direction being given.

             (5)  The Minister must not give directions about the content of any advice that may be given by the Expert Panel.

             (6)  The Expert Panel must comply with any direction given by the Minister under subsection (1).

             (7)  A direction given by the Minister under subsection (1) is a legislative instrument.

[Minister’s direction]