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Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

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.

10A  Section 7

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

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:

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

•      Protected carrier information must not be disclosed or used 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.

•      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.

531B   Definitions

                   In this Act:

author ised information officer means:

                     (a)  the Secretary of the Department; or

                     (b)  a Deputy Secretary of the Department; or

                     (c)  an individual:

                              (i)  who is an SES employee in the Department; and

                             (ii)  whose duties relate to the National Broadband Network Task Force; or

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

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

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

                     (a)  a director of the company; or

                     (b)  an employee of the company; or

                     (c)  an individual engaged as a consultant to 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

                     (c)  an officer or employee of the Commonwealth; 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.

matter preparatory to the publication of a designated request for proposal notice includes a matter preparatory to the publication of a variation of a designated request for a proposal notice.

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 eligible carrier; and

                     (b)  a specified manner is the approved manner in which a specified eligible 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 eligible 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 eligible 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 an eligible carrier, the Minister must first:

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

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

                             (ii)  invites the eligible 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

                     (c)  specifies a time limit for making submissions.

             (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.

             (3)  For the purposes of subsection (1), it is immaterial whether the notice was published before or after the commencement of this section.

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 —Eligible c arriers must give information to an authorised information officer

531F   Eligible carriers must give information to an authorised information officer

Scope

             (1)  This section applies to an eligible 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 eligible carrier.

Requirement

             (2)  The eligible 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.

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.

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:

                     (a)  disclose the information to another person; or

                     (b)  use the information.

          (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.

             (2)  Each of the following is an exception to the prohibition of disclosure 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

                             (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);

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

                              (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

                             (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);

                     (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.

          (3A)  Each of the following is an exception to the prohibition of use in subsection (1):

                     (a)  the information is used 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 used 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

                             (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);

                     (c)  the information is used for the purposes of advising:

                              (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 used 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

                             (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);

                     (e)  the information is used for a purpose specified in the regulations;

                      (f)  the information is used 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 used for the purposes of:

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

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

                     (h)  the carrier who gave the information to an authorised information officer has consented to the use of the information;

                      (i)  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;

                      (j)  the use is authorised by or under a law of the Commonwealth, a State or a Territory.

          (3B)  Paragraph (3A)(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) or a decision to use information under subsection 531G(3A).

             (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) or a decision to use information under subsection 531G(3A), 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:

                     (a)  disclose the information to another person; or

                     (b)  use the information.

          (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.

             (2)  Each of the following is an exception to the prohibition of disclosure 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.

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

                     (a)  the information is used 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;

                     (b)  the carrier who gave the information to an authorised information officer has consented to the use of the information;

                     (c)  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;

                     (d)  the use was authorised by or 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 subsections (1) and (1A); or

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

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsections (1) and (1A); or

                     (d)  conspire with others to effect a contravention of subsections (1) and (1A).

             (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

                     (c)  the Court is satisfied that the carrier has suffered loss or damage as a result of the contravention; and

                    (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

                     (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)  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.

             (4)  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

                     (c)  the Court is satisfied that the carrier has suffered loss or damage as a result of the contravention; and

                     (d)  the Court is satisfied that:

                              (i)  the entrusted company officer was an employee or agent of the company; and

                             (ii)  the entrusted company officer’s conduct was within the entrusted company officer’s actual or apparent authority as an employee or agent of the company;

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

             (5)  An application under subsection (4) may be made at any time within 6 years after the contravention occurred.

             (6)  Compensation is not payable to a company under both:

                     (a)  subsection (1); and

                     (b)  subsection (4);

in respect of the same contravention of subsection 531K(1) or (3).

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 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.

             (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

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, 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.

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”.

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)  business and domestic consumer interest advocates;

                             (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.

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).

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-General’s 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 Panel’s deliberations, analysis and conclusions.

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 Panel’s 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.

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.