Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK) BILL 2008

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(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 200 8

 

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 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 Government has committed to offer up to $4.7 billion and consider regulatory changes to facilitate the roll-out of a new, high-speed fibre-based broadband network over five years.  The National Broadband Network is expected to provide broadband services to 98 per cent of Australian homes and businesses with minimum speeds of 12 megabits per second.  The network will be subject to open access arrangements to promote competition in the telecommunications market. 

 

Consideration of proposals to deploy the National Broadband Network will be through a competitive assessment process, involving a Panel of Experts appointed by the Government.  The objective of the process is to be as transparent and accountable as possible.  It is also an objective that the process be conducted in an expeditious manner so that Government decisions can be made and necessary legislation passed to allow for the commencement of the network roll-out before the end of 2008.

 

The extent to which the Government’s objectives for the National Broadband Network are met will depend in part on the process generating sufficient competitive tension to encourage proponents to submit high quality proposals.  It is expected that a truly competitive process will facilitate the submission of proposals that are robust, accurate and efficient in terms of the need for Government funding and the scope of regulatory changes sought to facilitate the investment. 

 

To maximise competitive tension in the process, it is essential for certain information held by carriers, particularly network information, in addition to what is already available publicly or through commercial sources, to be made available to proponents so that they can accurately design and cost their proposed network.

 

The Bill is intended to address these issues by inserting a new Part 27A into the Act.  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.  

 

Obligation to provide information

 

The Bill would allow the Minister to make a disallowable instrument that specifies the particular information to be provided by specified carriers, the manner and form in which the information is to be provided and the time limit for providing the information after the commencement of the instrument.  The time limit would need to be at least 10 business days.  The Bill provides for the instrument made by the Minister to have effect only to the extent that it is authorised by paragraph 51(v) of the Constitution.  The Minister would be required to give carriers 3 business days to provide comments in relation to a draft instrument.  The instrument would be a disallowable instrument for the purposes of section 46B of the Acts Interpretation Act 1901 (and not a legislative instrument for the purposes of the Legislative Instruments Act 2003 ) and would be published on the Internet.

 

Following the commencement of the instrument made by the Minister, the specified carriers would be obliged to provide the specified information to an authorised information officer within the specified time limit.  The Minister would be able to appoint one or more SES employees to be authorised information officers. Compliance with this obligation would be a condition of the carrier’s carrier licence.  Information provided by carriers in compliance with this obligation would be ‘protected carrier information’ for the purposes of Part 27A of the Act.

 

The Bill provides for the carrier’s obligation to provide specified information to operate for a limited duration of 12 months following the commencement of the Bill.  Thereafter, the obligation would cease to be in force.

 

Disclosure and protection of ‘protected carrier information’

 

Division 3 of new Part 27A would set out the purposes for which protected carrier information may be disclosed.  However, Part 27A is not intended to affect telecommunications information that is obtained and disclosed otherwise in accordance with Part 27A, including where the telecommunications information is the same information as protected carrier information.

 

If a request for proposals for a National Broadband Network (described in the Bill as a ‘designated request for proposal notice’) were published by the Commonwealth and an authorised information officer is satisfied that a number of other requirements have been met, the authorised information officer would be able to disclose protected carrier information to a company that has notified the officer that it is considering making or intends to make a submission in response to the request for proposals.  The information would be disclosed to a person who is an ‘entrusted company officer’ of the company for the purposes specified in proposed section 531H.  The Minister would also have to power to make legislative instruments setting out information that a company would be required to provide to an authorised information officer together with its notification, and setting out other conditions that would have to be satisfied prior to an authorised information officer being able to disclose protected carrier information.  The request for proposal itself may specify one or more requirements that a company would have to meet in order to be eligible to make a submission. 

 

These provisions would give the Government the ability to develop eligibility requirements to ensure that only genuine proponents can be provided with protected carrier information and enable the Minister to specify any other conditions that may be appropriate in relation to the disclosure of information to potential proponents. They would also assist an authorised information officer to make an informed decision about the disclosure of protected carrier information.

 

An authorised information officer would also be able to disclose the information to persons who are ‘entrusted public officials’ as permitted by proposed section 531G.  This would include disclosure to a Minister, another Secretary, Commonwealth officers and employees including, but not limited to, ACCC officials, ACMA and ASIO officials.

 

Persons who are entrusted public officials would be able to disclose the information to other entrusted public officials as permitted by proposed section 531G.  Failure to comply with subsection 531G(1), which prohibits disclosure except as permitted by that section, would be a contravention of section 70 of the Crimes Act 1914

 

Persons who are entrusted company officers would be able to disclose the information to other entrusted company officers as permitted by proposed section 531K.  The Minister would also have the power to make a legislative instrument setting out rules restricting or limiting the individuals to whom carrier information may be disclosed and who would otherwise fall within the definition of entrusted company officer. Failure to comply with proposed subsection 531K(1), which prohibits disclosure except as permitted by that section, would be a contravention of a civil penalty provision.  A person who aids or abets or otherwise seeks to procure a contravention of subsection 531K(1) would also contravene a civil penalty provision.  Contravention of a civil penalty provision by an entrusted company officer could result in the imposition of a pecuniary penalty up to $50,000 for each contravention. Proposed section 531L would provide a mechanism for a carrier who has provided information in compliance with Part 27A to be provided with compensation by a company where the Federal Court is satisfied that an entrusted company officer of the company has contravened proposed subsection 531K(1) with the express or implied authorisation of the company and the carrier has suffered loss or damage.

 

The Bill would also allow the Minister to specify, by legislative instrument, rules relating to the storage, handling or destruction of protected carrier information to mitigate the risk of unauthorised disclosures or the mishandling of carrier information. 

 

Consultation obligations under new proposed Part 27A of the Act

 

The Government has announced that it expects to issue a request for proposals for the roll-out of a National Broadband Network in early 2008 and that it expects the request for proposal process to be conducted in a timely way to enable the roll-out of the National Broadband Network to commence by the end of 2008.  Having regard to the expected timeframe for the conduct of a request for proposal process, and the need to ensure that the public can receive the benefits of the high speed broadband services that will be provided using the National Broadband Network as soon as possible, the Bill contains some provisions which are intended to minimise the potential for legal challenges to decisions made under Part 27A stalling the request for proposal process and to recognise the practical difficulties with requiring entrusted public officials to consult with carriers each time an entrusted public official proposes to disclose protected carrier information.  The Bill provides that an authorised information officer would not be required to consult with a carrier that had provided protected carrier information prior to making a decision that disclosure of that information is permitted under proposed section 531H.  Similarly, an entrusted public official would not be required to consult with a carrier that had provided protected carrier information prior to making a decision to disclose that information as permitted by proposed section 531G.  A carrier would however be consulted, as provided for in the Bill, prior to the Minister making an instrument under proposed section 531C.  The Bill also contains a provision that would prevent the Federal Court or the Federal Magistrates Court from ordering a stay of a decision by an authorised information officer or an entrusted public official to disclose information in dealing with an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 or under section 39B of the Judiciary Act 1903 .

 

 

FINANCIAL IMPACT STATEMENT

 

The Bill is not expected to have any financial impact on Commonwealth expenditure or revenue.



 

Regulation Impact Statement:

Access to network data

to facilitate the National Broadband Network

 

1.         Issue which give rise to the need for action

 

Background

The Government has committed to facilitating the deployment of a National Broadband Network (the Network) by providing up to $4.7 billion and considering regulatory changes necessary to facilitate the deployment of the Network.

 

The Network is to be a fibre-based network, providing minimum and uniform speeds of 12 megabits per second to 98 per cent of homes and businesses.

 

The core objectives of the Network roll-out are to provide real benefits for consumers, enhance competition, promote economic productivity and provide value for money for the Commonwealth.

 

Consideration of proposals to deploy the Network will be through a competitive assessment process, involving a Panel of Experts appointed by the Government to assess proposals.  The process will be open, transparent and as accountable as possible.  The process will be conducted in an expeditious manner so that Government decisions can be made and necessary legislation passed to allow for the commencement of the network roll-out as soon as possible.

 

This RIS combines separate previous analyses relating to access to information on Telstra’s network and information on carriers’ optical fibre core network information.

 

The final parameters of the information that will be required will be set out in an instrument that may be issued by the Minister.  This RIS therefore contains a qualitative assessment of costs and benefits based on anticipated information requirements. A further RIS would be prepared at a later stage, prior to the Minister determining the actual information requirements.

 

Issue - National Broadband Network

The extent to which the Government’s core objectives for the National Broadband Network are met will depend in part on the process generating sufficient competitive tension to encourage proponents to submit proposals.  It is expected that a truly competitive process will facilitate the submission of proposals that are robust, accurate and efficient in terms of the need for Government funding and the scope of regulatory changes sought to facilitate the investment. 

 

An important element in efficiently deploying an FTTN network for the National Broadband Network is likely to be the efficient use of existing infrastructure, especially elements of Telstra’s fixed-line customer access network and elements of certain carriers’ optical fibre core networks.

 

Telstra’s fixed line customer access network

Currently, certain information regarding Telstra’s fixed line customer access network is available to proponents under licence from a company specialising in geographic information systems on the condition that Telstra’s approval has been obtained.  The information is:

·          the location of Telstra’s local telephone exchanges;

·          the geographic areas served by local telephone exchanges (referred to as exchange service areas); and

·          the sub-areas within exchange service areas, referred to as distribution areas, that are served by road side pillars or large pair gain systems (in an FTTN network, these areas will be served by a node).

 

This information alone may not be sufficient for a proponent to develop, with confidence, an FTTN network architecture and costing.  Additional information that may be relevant could include the location of facilities between the local telephone exchange and the customer premises and the lengths of cables from the local exchange to the customer premises.  It is considered highly unlikely that information considered to be relevant would not have been compiled by Telstra for future network planning purposes or to meet its own day-to-day operational requirements.

 

Optical fibre core networks

While potential proponents may have basic information regarding the routes and transmission capacity of alternate optical fibre cable core networks, this is understood to be largely confined to metropolitan areas and between major metropolitan centres.  Information regarding optical fibre infrastructure in rural and regional Australia is largely limited to information held by a few carriers. 

 

The information on optical fibre core networks currently available to many potential proponents may be considered to be insufficient for them to develop, with confidence, accurately costed and technically sound proposals for the National Broadband Network. 

 

It is understood that the information detailed above is held by carriers and is required to be made available to the Australian Competition and Consumer Commission (ACCC) for the fulfilment of its regulatory responsibilities (which the ACCC is not entitled to disclose to industry).

 

Information asymmetry

An information asymmetry exists between Telstra and other potential proponents to the National Broadband Network process. As a consequence of this information asymmetry, if specific information about Telstra’s network was not available early in the process, other proponents would be at a competitive disadvantage to Telstra in terms of developing proposals for submission to the National Broadband Network process.

 

From Telstra’s perspective, the provision of its network information to potential

proponents will reduce its competitive advantage in the assessment process.

 

As a consequence of the information asymmetry between the potential proponents and carriers that operate optical fibre networks, some may be at a competitive disadvantage to others, especially in the non-metropolitan areas where few carriers operate optical fibre cable infrastructure.

 

2.         Objective

 

The objective of Government action in addressing the problem should be to ensure that the National Broadband Network process is as open and competitive as possible.

 

This will maximise the benefits for consumers, enhance competition in the supply of communications services and provide value for money for the Commonwealth.

 

3.         Options (regulatory and/or non-regulatory) that may constitute viable means for achieving the desired objective(s)

 

Four alternative options (regulatory and non-regulatory) have been identified to address the issue of information asymmetry regarding network information between Telstra and other potential proponents, these are:

A.     require proponents to make their own assumptions or undertake their own market enquiries;

B.      request carriers to voluntarily provide information;

C.      require carriers to provide information as a condition of participation; and

D.     require carriers to provide information if it is considered relevant.

 

Option A -   Require proponents to make their own assumptions or undertake their own market enquiries;

The National Broadband Network competitive assessment process could be conducted on the basis that the Government will not facilitate potential proponents gaining access to relevant network information.  Potential proponents would be left to make their own assumptions regarding the availability, adequacy and cost of accessing existing infrastructure for the purpose of developing a proposal.  Proponents could also be required to clearly identify risks and sensitivities associated with their assumptions.

 

As part of their proposal, proponents could identify their future information requirements and request regulatory measures to obtain this information to assist with detailed planning of the deployment of the network if their proposal is successful.

 

Option B -   Request carriers to voluntarily provide information

Seek certain carriers’ voluntary agreement to provide other potential proponents with prompt access to relevant network information and seek voluntary agreement from certain carriers to provide potential proponents with prompt access to their optical fibre core network information.  Any information obtained through the above process would be subject to appropriate confidentiality undertakings being in place.

 

Option C -   Require carriers to provide information as a condition of participation

The Request for Proposal documentation could be prepared to require that if certain carriers wish to participate in the National Broadband Network, then they must provide other potential proponents with access to specified network information.  As with option (b) above the provision of the information would be subject to appropriate confidentiality undertakings being in place.

 

Option D -   Compel carriers to provide information

Through legislation, enable the Minister to require relevant information from carriers and for this information to be made available to potential proponents.

 

4.         Impact assessment

 

This section discusses the costs and benefits of the four alternative options identified above in terms of the impact on business, the Government, consumers and the environment where appropriate.

 

Option A -   Require proponents to make their own assumptions or undertake their own market enquiries;

Benefits:

·          Does not impose costs on carriers to package information and to establish confidentiality undertakings.

·          Maintains the confidentiality of all carriers’ network information.

 

Costs:

·          Proponents may not participate in the National Broadband Network process, given concerns that they may not be able to develop comprehensive and accurate proposals.

·          Proponents may have difficulty in developing proposals for the National Broadband Network that make efficient use of existing infrastructure, especially in regional areas where they may have limited appreciation of existing network infrastructure.  Proponents may choose to manage the risk by not making an appropriate allowance for costs by over compensating through requesting greater Government funding and/or additional regulatory concessions than what would otherwise have been sought.

·          Development of theoretical models on which to base reasonable assumptions may require significant time and resources.

·          Some proponents may have difficulty attracting private financing if their proposals make significant assumptions.

·          Difficult for Government to assess National Broadband Network proposals in terms of the time taken to test assumptions and compare the relative merits of proposals that may be based on different assumptions. 

·          Potential for greater reliance on the installation of new facilities (i.e. new trenching, use of overhead cabling), which has negative consequences for the amenity of the community and impact on the environment.

 

Option B -   Request carriers to voluntarily provide information

Benefits:

·          Potentially limits the cost to carriers and the Government compared to those associated with the preparation and implementation of legislation.

·          If carriers cooperate, it potentially provides a timely means for making the necessary information available to potential proponents.

·          Potential proponents will have greater up-front certainty regarding the type and quality of the information that they will have access to.

·          Potential proponents should have greater confidence to participate in the National Broadband Network process and enables them to better plan their proposal development process.

 

Costs:

·          Negotiation with carriers regarding the provision of network information has the risk of being protracted.  Protracted negotiations may limit the time that potential proponents have to make effective use of the network information.

·          Potential that negotiation will result in the carriers not agreeing to make information available, potentially necessitating alternative means to be commenced.

·          A risk that carriers will withdraw from the National Broadband Network process as the provision of information will reduce their competitive advantage in the assessment process, and concerns that the network information made available to potential proponents will not be used solely for the development of proposals.

·          Imposes costs on carriers to package information and to establish confidentiality undertakings.

-                 The cost to carriers of preparing the information will be dependent on the extent of information considered to be relevant.

-                 However, it is understood that the majority of information likely to be relevant is readily available and the cost and time required to compile this information should not be significant.

-                 Additionally, given that carriers have previously made similar information available to the ACCC and other advisers, they would have existing confidentiality agreements that could be readily adapted for the purpose of providing network information to potential proponents and other carriers.

·          Information would be commercially sensitive and information management arrangements would be needed.

·          The availability of network information will enable the preparation of stronger proposals for the National Broadband Network, thereby increasing the potential that carriers that hold the information may not be successful with their proposal.  This cost is offset by the benefits to the community through greater competitive tension in the assessment process resulting in higher quality proposals that deliver better value for money.

 

Option C -   Require carriers to provide information as a condition of participation

Benefits:

·          Potentially limits the cost to carriers and the Government compared to those associated with the preparation and implementation of legislation.

·          If the carriers cooperate, it potentially provides a timely means for making the necessary information available to potential proponents.

·          Potential proponents and other carriers will have greater up-front certainty regarding the type and quality of the information that they will have access to.

·          Potential proponents should have greater confidence to participate in the National Broadband Network process and enables them to better plan their proposal development process.

 

Costs:

·          Negotiation with carriers regarding the provision of network information has the risk of being protracted.  Protracted negotiations may limit the time that potential proponents have to make effective use of the network information.

·          Potential that negotiation will result in the carriers not agreeing to make information available, necessitating alternative means to be commenced.

·          Increased risk that carriers will withdraw from the National Broadband Network process as the provision of information will reduce its competitive advantage in the assessment process, and concerns that the network information made available to potential proponents will not be used solely for the development of proposals.

·          Not all carriers that hold relevant information may wish to participate in the National Broadband Network processes, so additional mechanisms to obtain relevant information may be necessary.

·          Imposes costs on carriers to package information and to establish confidentiality undertakings.

-                 The cost to carriers of preparing the information will be dependent on the extent of information considered to be relevant.

-                 However, it is understood that the majority of information likely to be relevant is readily available and the cost and time required to compile this information should not be significant.

-                 Additionally, given that carriers have previously made similar information available to the ACCC and other advisers, they would have existing confidentiality agreements that could be readily adapted for the purpose of providing network information to potential proponents and other carriers.

·          Information would be commercially sensitive and information management arrangements would be needed.

·          The availability of network information will enable the preparation of stronger proposals for the National Broadband Network, thereby increasing the potential that carriers that hold the information may not be successful with their proposal.  This cost is offset by the benefits to the community through greater competitive tension in the assessment process resulting in higher quality proposals that deliver better value for money.

 

Option D -   Require carriers to provide information if it is considered relevant

Benefits:

·          Potential proponents and carriers will have greater up-front certainty regarding the type and quality of the information that they will have access to.

·          Potential proponents should have greater confidence to participate in the National Broadband Network process and enable them to better plan their proposal development process.

 

Costs:

·          Carriers may challenge operation of any legislation, potentially delaying the time by which relevant information can be made available to proponents for the preparation of their proposals.

·          The carriers may require compensation for the compulsory acquisition of its intellectual property (i.e. network information).

·          A risk that carriers may withdraw from the process as the provision of information will reduce their competitive advantage in the assessment process, and concerns that the network information made available to potential proponents will not be used solely for the development of proposals.

·          Imposes costs on carriers to package information and to establish confidentiality undertakings.

-                 The cost to carriers of preparing the information will be dependent on the extent of information considered to be relevant.

-                 However, it is understood that the majority of information likely to be relevant is readily available and the cost and time required to compile this information should not be significant.

-                 Additionally, given that carriers have previously made similar information available to the ACCC and other advisers, they would have existing confidentiality agreements that could be readily adapted for the purpose of providing network information to potential proponents and other carriers.

·          Information would be commercially sensitive and information management arrangements would be needed.

·          The availability of network information will enable the preparation of stronger proposals for the National Broadband Network, thereby increasing the potential that carriers that hold the information may not be successful with their proposal.  This cost is offset by the benefits to the community through greater competitive tension in the assessment process resulting in higher quality proposals that deliver better value for money.

 

5.         Consultation

 

The Government has written to 24 carriers regarding their willingness to voluntarily provide network information.  This consultation is on-going.  To date a number of carriers have agreed to provide the information sought, and have endorsed the Government’s request for the information on the grounds that were information not available, potential proponents would be at a significant competitive disadvantage.  Furthermore, they have stated that in order for the assessment process to be fair and for proposals put forward to have a reasonable degree of accuracy, it would be necessary for Telstra to provide detailed network information to all potential proponents so they can have confidence in the design and costing of their proposal.  In agreeing to provide the information the carriers have not raised the issue of the cost of compiling the information other than citing that the information requested closely resembles the information that has been provided to the Australian Competition and Consumer Commission.

 

Other carriers have advised that they would not voluntarily provide the information sought on the grounds that it is commercially sensitive. 

 

Some carriers have commented that while they support the Government’s decision to put in place arrangements to make network information available to potential proponents, they have questioned the scope of the request.  Some of these carriers have suggested that elements of the information requested be broadened while others have proposed that it be narrowed or amended so that alternate information could be provided. 

 

If the Minister needs to consider making an instrument, there will be consultation on the content of the draft instrument, as provided for in the Bill.

6.         Recommendation

 

Option B is recommended in the first instance, subject to carriers’ timely agreement  regarding the type of, and manner in which, network information will be made available to other potential proponents.

 

If early agreement by carriers is not forthcoming then Option D is recommended.

 

The recommended approach of pursuing Option B in the first instance provides carriers and the Government with a co-operative low cost non-legislative mechanism for making the information available to potential proponents.  As identified above, the cost of making this information available is considered likely to be negligible. 

 

In the event that carriers do not wish to cooperate with Government, it will be necessary, so that the objectives of the National Broadband Network can be met, for the Minister to consider using the proposed power to make an instrument to require relevant information to be provided (i.e. Option D).  The potential detriment to carriers if required to provide the information is outweighed by the national importance of the network to be as efficiently designed, funded and operated as possible so that the economic and social outcomes that the network will facilitate are maximised.

 

Option C is not considered feasible as it does not ultimately ensure that the information will be made available to proponents participating in the process.  In the case of option A the non-availability of relevant information to other potential proponents raises significant questions regarding the fairness of the process, increasing the risk of legal challenge.  Furthermore the use of assumptions in proposals presents significant difficulties for Government in terms of forming reliable comparative assessments of different proposals.

 

7.         Implementation and review of the preferred option

 

In the event that carriers do not voluntarily provide the necessary network information, it is proposed that legislation would enable the Minister to require carriers to make relevant network information available. 

 

In the event that the Minister considers that their network information should be made available it is proposed that the Minister will consult with carriers prior to issuing a requirement. 

 

The actual information requirements will be determined after consultation.  A RIS will be prepared prior to an instrument being issued.



ABBREVIATIONS

 

 

The following abbreviations are used in this explanatory memorandum:

 

 

ACMA:                                   Australian Communications and Media Authority

 

ACCC:                                    Australian Competition and Consumer Commission

 

Act:                                         Telecommunications Act 1997

 

AIA:                                        Acts Interpretation Act 1901

 

ASIO:                                     Australian Security and Intelligence Organisation

 

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

 

 

 

 

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides that the Bill, when enacted, may be cited as the Telecommunications Legislation Amendment (National Broadband Network) Act 2008 .

 

Clause 2 - Commencement

 

Clause 2 of the Bill provides for the Bill to commence on the day after the Bill receives the Royal Assent.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that each Act that is specified in a Schedule to the Bill is amended or repealed as set out in that Schedule and any other item in a Schedule has effect according to its terms.  There is one Schedule to the Bill which amends the Act.

 

Schedule 1—Amendments

 

Telecommunications Act 1997

 

Item 1 - Section 7

Item 2 - Section 7

 

Items 1 and 2 would amend section 7 of the Act to insert definitions of ‘ACCC official’ and ‘ACMA official’ into the Act. 

 

Item 1 would provide that the term ‘ACCC official’ has the same meaning as in section 155AAA of the Trade Practices Act 1974 (TPA).  ACCC official (referred to as ‘Commission official’ in the TPA) is defined in subsection 155AAA(21) to include a member or associate member of the ACCC, a person referred to in subsection 27(1) of that Act (that is, a member of staff of the ACCC) or a person engaged under section 27A of that Act (that is, consultants engaged by the ACCC to give advice to, and perform services for, the ACCC).  Item 2 would provide that the term ‘ACMA official’ has the same meaning as in the Australian Communications and Media Authority Act 2005 (ACMA Act).  An ACMA official is a member of ACMA, an associate member of ACMA, a member of ACMA staff (for the purposes of section 54 of the ACMA Act) or a person whose services have been made available to ACMA under subsection 55(1) of the ACMA Act (see section 3 of the ACMA Act). 

 

The terms ‘ACCC official’ and ‘ACMA official’ are used in the definition of ‘entrusted public official’ in proposed section 531B of new Part 27A (see Item 10).  These definitions are used in Division 3 of Part 27A which prohibits disclosure of protected carrier information by an entrusted public official unless one of the exceptions to the prohibition in Division 3 applies.

 

 

 

Item 3 - Section 7

 

Item 3 would amend section 7 of the Act to insert a definition of ‘authorised information officer’ into the Act.  This term is defined in proposed section 531B to mean a person for whom an appointment as an authorised information officer is in force under proposed section 531M.

 

The term is used in Divisions 2 and 3 of proposed Part 27A, which, following the commencement of an instrument made under proposed section 531C, require specified carriers to provide specified information to an authorised information officer and allow an authorised information officer to disclose such information for the purposes specified in proposed sections 531G and 531H.

 

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

 

Item 4 would provide that proposed subsections 531K(1) and (3), and proposed subsections 531P(3) and (4), would be civil penalty provisions for the purposes of the Act. 

 

These provisions are contained in proposed Division 3 of Part 27A which obliges persons who receive protected carrier information not to disclose it unless an exception applies.  Specifically, subsection 531K(1) obliges a person who is an entrusted company officer not to disclose protected carrier information and subsection 531K(3) prohibits a person from aiding, abetting, procuring, inducing, being involved in and conspiring to effect a contravention of subsection 531K(1).  Proposed subsection 531P deals with the storage, handling or destruction of protected carrier information.  Under proposed subsection 531P(1), the Minister would be able to make rules about such matters by legislative instrument.  Proposed subsection 531P(3) imposes an obligation to comply with rules in force under proposed subsection 531P(1).  Proposed subsection 531P(4) prohibits a person from aiding, abetting, procuring, inducing, being involved in and conspiring to effect a contravention of subsection 531P(3).

Part 31 of the Act deals with civil penalties.  If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Court can order the person to pay to the Commonwealth a pecuniary penalty that the Court considers appropriate up to a maximum of $250,000 for each contravention for a body corporate or $50,000 for each contravention for a person other than a body corporate. 

 

Item 5 - Section 7

 

Item 5 would amend section 7 of the Act to insert a definition of ‘designated information’ into the Act.  The term is used in Division 2 of new proposed Part 27A.  Under Division 2 of Part 27A, carriers must give to an authorised information officer information that is designated information, as specified in an instrument made by the Minister under proposed section 531C, and in the manner and form and within the time limit specified in the Minister’s instrument.  Information that is specified in the written instrument made by the Minister under proposed section 531C is ‘designated information’.

 

Item 6 - Section 7

 

Item 6 amends section 7 of the Act to insert a definition of ‘designated request for proposal notice’ into the Act.  A ‘designated request for proposal notice’ would be a notice that meets the description in proposed section 531D of new Part 27A.  This term is used in new proposed Part 27A of the Act for the purpose of specifying circumstances in which ‘protected carrier information’ may be disclosed (see Item 10).

 

Item 7 - Section 7

Item 8 - Section 7

Item 9 - Section 7

 

Items 7 to 9 would amend section 7 of the Act to insert definitions of ‘entrusted company officer’, ‘entrusted public official’, and ‘protected carrier information’ into the Act.  These terms are all defined in Division 1 of new Part 27A of the Act and are used in Divisions 2 and 3 of that Part. 

 

Any information that is obtained under Division 2 or which is disclosed under one of the exceptions in Division 3 is ‘protected carrier information’ (see proposed section 531B in Item 10).

 

Division 3 of Part 27A contains a prohibition on disclosing this information unless an exception applies.  The exceptions include disclosure to an entrusted public official or an entrusted company officer for certain purposes (see proposed sections 531H, 531G and 531K in Item 10).  Definitions of ‘authorised information officer’, ‘entrusted company officer’ and ‘entrusted public official’ are contained in proposed section 531B in Division 1 of Part 27A (see Item 10).

 

Item 10 - Section 7

 

Item 10 would amend section 7 of the Act to insert a definition of ‘restricted recipients rules’ into the Act.  Item 10 would provide that the term ‘restricted recipients rules’ means the rules made under proposed section 531N.

 

Proposed subsection 531N(1) would allow the Minister, by legislative instrument, to make rules, to be known as ‘restricted recipients rules’, restricting or limiting the entrusted company officers to whom information may be disclosed under proposed subsection 531H(1) or proposed paragraph 531K(2)(a).  The term ‘restricted recipients rules’ is used in Division 3 of new Part 27A,specifically in proposed section 531H, which deals with the disclosure of protected carrier information to a company, and proposed section 531K, which prohibits disclosure of protected carrier information to an entrusted company officer of a company except as permitted by that section. Disclosure of protected carrier information in accordance with proposed sections 531H and 531K would be allowed so long as the disclosure complies with any applicable restricted recipients rules.

 

 

 

 

Item 11 - After Part 27

 

Item 11 would insert a new Part 27A into the Act.  In broad terms, new Part 27A would require carriers who are specified in an instrument made by the Minister under proposed section 531C to provide to an authorised officer, appointed by the Minister in accordance with proposed section 531M, the information specified in the instrument, in the manner and in the form and within the specified time limit.  Under proposed section 531M, the Minister would be able to appoint one or more SES employees to be authorised information officers for the purposes of the Act. New Part 27A would protect that information from disclosure except in specified circumstances and these non-disclosure obligations would apply to any person to whom the information is disclosed under an exception

 

To ensure the community secures the best value for money from the Government’s significant investment in the National Broadband Network, the company that will roll-out the Network will be selected through an open and competitive assessment process.  A key issue, however, is that data for network design and costing purposes that is essential for the process is not generally available.  As the owner of the vast bulk of Australia’s customer access network - crucial infrastructure which will need to be connected to any fibre-to-the-node network - Telstra would clearly have an advantage over other potential proponents for the National Broadband Network if it alone could use information relating to its customer access network.  Additionally, to encourage the efficient use of existing optical fibre network infrastructure, it is expected that information may be required from carriers with optical fibre transmission networks about their networks.  In developing proposals, proponents will need to consider whether or not they would make use of existing infrastructure and, if so, the extent to which they do so.  The ability to use existing infrastructure, particularly the copper customer access network and backhaul infrastructure, will influence the efficiency of the network build and therefore costs and future prices.  It is essential, therefore, to provide a mechanism for giving potential proponents access to information of this kind to develop, with confidence, robust network designs and costings and to participate in the competitive assessment process on a level playing field.

 

Part 27A - Information relating to a broadband telecommunications network

 

Division 1 - Introduction

 

Proposed section 531A - Simplified outline

 

This section provides a short summary of the effect of the main provisions in proposed Part 27A.

 

Proposed section 531B - Definitions

 

This proposed section contains definitions of ‘authorised information officer’, ‘entrusted company officer’, ‘entrusted public official’ and ‘protected carrier information’ for the purposes of Part 27A.

 

‘Protected carrier information’ is defined to include any information that is given to an authorised information officer under section 531F or has been disclosed as permitted by particular provisions of Division 3.

 

The terms ‘authorised information officer’, ‘entrusted company officer’ and ‘entrusted public official’ are key definitions used in Part 27A.  Division 3 of Part 27A permits an authorised information officer to disclose protected carrier information to an entrusted public official (see proposed subsection 531G(1)) and to an entrusted company officer of a company that is considering making a submission or intends to make a submission in response to a designated request for proposal notice issued by the Commonwealth for the creation or development of a broadband telecommunications network or that has made a submission and is considering whether to vary that submission or intends to vary that submission (see proposed section 531H).  Entrusted public officials will, in turn, be permitted to disclose the information as authorised under proposed section 531G, including to the Cabinet, a Minister or other entrusted public officials for the purpose of giving advice to the Cabinet, a Minister or other officials in relation to matters preparatory to the publication of a designated request for proposal notice, the approach to be taken in relation to the consideration of proposals that could be made in response to such a notice, or action to be taken in relation to proposals made in response to such notice.  Similarly, entrusted company officers will be permitted to disclose the information as authorised by proposed section 531K, including to another entrusted company official for the purposes of considering whether to make a submission or preparing a submission in response to an invitation in a designated request for proposal notice.

 

The definition of ‘authorised information officer’ means an SES employee appointed by the Minister, in writing, to be an authorised information officer for the purposes of the Act (see proposed section 531M). The Minister would be able to appoint one or more SES employees as authorised information officers.

 

The definition of ‘entrusted company officer’ covers not only the directors or employees of a company (proposed paragraphs 531B(a) and (b)) but also other persons who are engaged to provide services to the company, whether as a consultant or otherwise (proposed paragraphs 531B(c) and (d)).  The definition would cover a body corporate that is engaged as a consultant or to provide services to a company and the employees and directors of that company (proposed paragraphs 531B(e) and (f)).  The definition also covers individuals who are partners in, or employees of, a partnership engaged to be a consultant to the company or to provide services to the company (proposed paragraphs 531B(g) and (h)).  For example, this would cover the partners and employees of a legal or accounting firm that is engaged to provide advisory services to the company. 

 

The definition would also cover officers or employees of a body politic (ie. State or Territory government officers or employees) and an employee or director of a body corporate who are providing services to a company (proposed paragraphs 531B(i) and (p).  The term ‘services’ is intended to have a broad meaning, consistent with its ordinary meaning, and to cover the provision of assistance in the form of advisory services, funding or other services, by a body politic or a body corporate to a company.  This might occur if a company represents a consortium that is considering or preparing a submission in response to a designated request for proposal notice or is involved, together with other parties (for example, one or more companies or a State, Territory or local government), in the preparation of a joint submission in response to such a notice. In addition, the definition covers the directors or employees of a body corporate, as well as other persons, such as individuals who are partners in, or employees of, a partnership, who are engaged to provide services to a body corporate or body politic that provide services to the company, whether as a consultant or otherwise (proposed paragraphs 531B(j) to (o) and 531B(q) to (v)).

 

The definition of ‘entrusted company officer’ is intended to recognise that there may be a number of ways in which proposals in response to a designated request for proposals notice are developed, including development of proposals by consortia (which may involve the preparation of a joint submission or submission of a proposal by one member of the consortium on behalf of all of the members of the consortium).  The definition is intended to permit disclosure of protected carrier information where proposals are being developed in this way.

 

The definition of ‘entrusted public official’ covers any Commonwealth Minister or any Secretary of a Commonwealth Department, as well as all other Commonwealth officers or employees.  The definition would also cover the members of any committee established by the Commonwealth to have a role in relation to a process for requesting and assessing proposals for the creation or development of a broadband telecommunications network.  The Panel of Experts that the Government has announced that it intends to appoint to oversee the conduct of a request for proposals for a National Broadband Network would be such a committee.

 

The definition also specifically refers to ACMA officials, ACCC officials and the Director-General of the ASIO. A purpose for which protected carrier information could be disclosed under proposed section 531G would be to enable ASIO, the ACCC or the ACMA to give advice to the Commonwealth, a Minister or any committee in relation to a matter preparatory to the publication of a designated request for proposal notice, and in relation to the approach or action to be taken in relation to submissions made in response to a designated request for proposal notice .  Staff and officers of the ASIO would be covered by the definition as Commonwealth employees.  Similarly to the definition of ‘entrusted company officer’, the definition of ‘entrusted public official’ would also cover persons who are engaged, under a contract, to provide services to the Commonwealth or as a consultant.  The definition would cover a body corporate that is engaged as a consultant or to provide services to the Commonwealth and the employees and directors of that company.  The definition also covers individuals who are partners in, or employees of, a partnership engaged to be a consultant to or provide services to the Commonwealth. 

 

The Bill makes it clear that the individual paragraphs defining ‘entrusted company officer’ and ‘entrusted public official’ are to be read independently of each other, so that the paragraphs are not to be interpreted as impliedly limiting the operation of other paragraphs. For example, the reference to ‘an officer or employee of the Commonwealth’ in paragraph (c) of the definition of ‘entrusted public official’ should not be read down by references to officers and employees of specific agencies, such as the ACCC and the ACMA. For example, an ‘officer or the employee of the Commonwealth’ would cover officers or employees of the Australian Federal Police and the Commissioner of Police.

 

Proposed section 531C - Designated information

 

Proposed section 531C would enable the Minister, by written instrument, to determine that specified information is ‘designated information’ for the purposes of the application of the Act to a specified carrier or a specified class of carriers (in relation to specification by class, see subsection 46(3) of the AIA).  The instrument will also enable the Minister to determine the manner and the form in which a specified carrier or a specified class of carriers is to give the designated information (the approved manner and the approved form), and the number of business days, which must not be less than 10 business days, within which such information is to be provided (the ‘approved period’).  It is not intended that the Minister’s instrument would specify information held by carriers that is personal information of customers.  The instrument would be a disallowable instrument for the purposes of section 46B of the AIA and would not be a legislative instrument for the purposes of the Legislative Instruments Act 2003 (see proposed subsections 531C(7) and (8)).  Subsection 531C(8) would make it clear that the instrument is not a legislative instrument for the avoidance of doubt, as the instrument would not be legislative instrument for the purposes of section 5 of the Legislative Instruments Act.  The Minister would be able to exercise the power to make an instrument from time to time and would not be limited to making one instrument under the proposed section (see section 33(1) of the AIA).

 

The commencement of an instrument made under proposed section 531C would trigger an obligation on a specified carrier or a carrier falling within a specified class of carrier to provide the designated information to an authorised information officer (in the manner and form specified in the instrument) within the period specified in the Minister’s instrument.  Such information would become ‘protected carrier information’ for the purposes of Division 3 of Part 27A.

 

Proposed subsection 531C(3) provides that an instrument under proposed subsection 531C(1) has the effect only to the extent that it is authorised by section 51(v) of the Constitution (either alone or when read together with paragraph 51(xxxix), or it is authorised by section 122 of the Constitution and it would have been authorised by section 51(v) of the Constitution (either alone or read together with section 51(xxxix)) of section 51 of the Constitution extended to the territories.  The purpose of this provision is to ensure the constitutional validity of proposed subsection 531C(1). In effect, this would limit the scope of an instrument made under proposed subsection 531C(1) by requiring the information specified in relation to a specified carrier to relate to the carrier’s activities as a carrier or carriage service provider.

 

Proposed subsection 531C(4) sets out a specific consultation procedure that would apply to the making of an instrument under proposed subsection 531C(1).  This procedure would provide for a consultation period of 3 business days on a draft instrument.  The consultation period would give affected carriers an opportunity to provide comments in relation to the draft instrument.  The consultation procedure in proposed subsection 531C(4) is intended to displace any common law obligations that may apply in relation to the making of the instrument.

 

Proposed subsection 531C(5) provides that an instrument made under subsection 531C(1) is to be published on the Internet.

 

Proposed subsection 531C(6) specifies that, for the purposes of section 531C, the term ‘business day’ does not include a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

 

Proposed section 531D - Designated request for proposal notice

 

Proposed subsection 531D(1) defines ‘designated request for proposal notice’ for the purposes of new Part 27A.  This is a key term used in Part 27A because of the use of this term in a number of the exceptions to the prohibition on disclosing protected carrier information.

 

A ‘designated request for proposal notice’ is intended to cover any request issued by the Commonwealth seeking proposals for the creation or development of a telecommunications network which is capable of carrying communications on a broadband basis and which is made available on the Internet.  Section 7 of the Act defines ‘telecommunications network’ as a ‘system, or series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy’.  Section 7 also defines ‘communications’ as including ‘any communication:

(a)     whether between persons and persons, things and things or persons and things; and

(b)     whether in the form of speech, music or other sounds; and

(c)     whether in the form of data; and

(d)     whether in the form of text; and

(e)     whether in the form of visual images (animated or otherwise); and

(f)     whether in the form of signals; and

(g)     whether in any other form; and

(h)     whether in any combination of forms.’

 

‘On a broadband basis’ in Australia is generally understood to be a speed of 256 kbps or more. In the context of the National Broadband Network it should be understood to refer to a speed of at least 12 Mbps.  However, no speed is specified in the Bill as the precise outcome of the National Broadband Network competitive assessment process cannot be predicted.  It may be that the competitive process delivers speeds well in excess of 12 Mbps.

 

Proposed subsection 531D(2) would it make it clear that, for the purposes of subsection 531D(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.  This recognises that the Government may want to specify one or more eligibility requirements that companies would have to satisfy to be eligible to submit a proposal.  For example, one of the requirements could be the payment of a bond or deposit by companies

 

A request for proposals in relation to a National Broadband Network (to implement the Government’s election commitment) would be covered by this definition.  However, the purpose of proposed section 531D is only to provide a definition for the purposes of Part 27A and is not intended to provide a statutory basis for the issue of a request for proposals or the conduct of a process in relation to such a request, including assessment of any proposals or submissions received in response to such a request. In addition, proposed section 531D is not intended to imply that submissions in response to such a request cannot include proposals for the roll-out of the National Broadband Network that involve action by parties other than the entity that actually lodges the submission.  It is also not intended to imply that the request for proposals for the National Broadband Network would necessarily include eligibility requirements for companies. However, it ensures that, if such requirements were specified in the request for proposals, the request for proposals would fall within the definition in proposed section 531D.

 

Proposed section 531E - Action by the Commonwealth

 

Proposed section 531E would provide a definition of ‘action by the Commonwealth’ which is a phrase used in some of the exceptions authorising disclosure of protected carrier information by an entrusted public official in proposed section 531G.  These exceptions are intended to allow disclosure of the information for the purposes of providing advice to the Cabinet, a Minister or a Secretary of a Department, or consideration by the Cabinet or a Minister about action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to a designated request for proposal notice.  The definition makes it clear that such action could include expenditure by the Commonwealth (eg. the provision of funding) or the introduction of a Bill into the Parliament. 

 

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

 

Proposed section 531F - Carriers must give information to an authorised information officer

 

Proposed section 531F would apply to a carrier if an instrument made under subsection 531C(1) had commenced and it specified particular information to be designated information for the purposes of the application of Part 27A to that carrier.  In such circumstances, the carrier would be obliged under subsection 531F(2) to provide the specified information to an authorised information officer within the approved period (ie. the period within which the information must be provided as specified in the Minister’s instrument) after the instrument comes into effect.  The information would need to be provided in the manner and form specified in the Minister’s instrument.  Compliance with this obligation would be a condition of the carrier’s carrier licence (see Part 1 of Schedule 1 to the Act).  Contravention of a carrier licence condition would be contravention of a civil penalty provision and could result in the imposition of a pecuniary penalty by the Federal Court of up to $10 million (see section 570 of the Act).

 

Proposed subsection 531F(3) would provide that proposed subsection 531F(1) and 531F(2) would cease to have effect 12 months after the commencement of subsection 531F(3). The effect of this amendment would be that proposed section 531F would operate for a limited period.

 

This will ensure that designated information would be required to be provided during the period in which the competitive assessment process for the National Broadband Network is expected to be conducted, while making it clear that proposed section 531F is not intended to effect an ongoing obligation to provide information.

 

Division 3 - Protection of information

 

Division 3 of proposed 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. The provisions in Division 3 are intended to specify exclusively the circumstances in which protected carrier information obtained under Division 3 may be disclosed.  However, Part 27A is not intended to affect telecommunications information that is obtained and disclosed otherwise in accordance with Part 27A, including where the telecommunications information is the same information as protected carrier information.

 

Division 3 would also allow the Minister to make legislative instruments setting out information to be provided by companies, and conditions that would have to be satisfied by companies, prior to an authorised information officer being able to disclose protected carrier information to them.  In accordance with Division 3, the Minister would also have the power to make legislative instruments setting out rules that would restrict or limit the entrusted company officers to whom protected carrier information could be disclosed, and setting out rules for the storage, handling or destruction of protected carrier information.

 

Proposed section 531G - Protection of information - entrusted public official

 

Proposed section 531G would prohibit a person who is an entrusted public official and has obtained protected carrier information from disclosing that information unless one of the exceptions in the section applies. 

 

The proposed section would authorise a disclosure of protected carrier information by an authorised information officer under section 531H to an entrusted company officer of a company to enable that company to consider whether to make a submission in response to a designated request for proposal notice or to prepare such a submission and other related purposes (proposed paragraph 531G(2)(h)).

 

The section would also permit an authorised information officer to disclose the information to another entrusted public official to enable the Cabinet, a Minister or another Secretary to be advised about a matter preparatory to the publication of a designated request for proposal notice, the approach to be taken in relation to the consideration of proposals 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, action that is proposed to be taken by the Commonwealth in relation to a submission made in response to a request for proposals, and matters that are ancillary or incidental to those matters.   The section would also permit an authorised information officer to disclose the information to the Cabinet and a Minister for the purposes of consideration by the Cabinet and the Minister of the matters mentioned above.  In turn, any entrusted public official to whom protected carrier information had been disclosed under section 531G would be able to disclose the information for these purposes.  This would cover all stages of the conduct of a request for proposal process. 

 

Disclosure would also be permitted for the purpose of enabling the ACCC, ACMA or ASIO to provide to any advisory committee that is established to conduct a request for proposals process or to the Commonwealth or a Minister.  For example, such a disclosure might occur where the ACCC’s or ACMA’s advice from their perspective as regulators is sought in relation to the implications of proposals in submissions or where advice is sought from ASIO with respect to the national security implications of proposals.

 

For flexibility, the section also provides for information to be disclosed to another entrusted public official for a purpose specified in the regulations (proposed paragraph 531G(1)(e )).  This will provide scope for information to be made available for the Government’s related Fibre Connection to Schools initiative should this be warranted or to deal with unforeseen circumstances that may arise in the context of the National Broadband Network process.  Any such regulations will be subject to Senate scrutiny and disallowance.   Proposed subsection 531G(3) would provide that paragraph 531G(1)(e) would cease to have effect 12 months after the commencement of that subsection, so that the ability to disclose information to another entrusted public official for a prescribed purpose would operate only for a limited time. 

 

Proposed paragraph 531G(2)(f) would allow the protected carrier information to be disclosed to an entrusted public official for the purposes of giving advice to an authorised information officer in relation to action to be taken by the officer under proposed section 531H, and for the purposes of assisting an authorised information officer in relation to the exercise of the officer’s powers under proposed section 531H.

 

Proposed paragraph 531G(2)(g) would authorise disclosure by an authorised information officer to another authorised information officer for the purpose of enabling the other authorised information officer to make a decision under proposed section 531H or enabling the other authorised information officer to disclose the information under proposed section 531H.

 

The section would also authorise disclosure where the information has been made publicly known by the carrier who gave the information to an authorised information officer (or by a person authorised by the carrier) or where the carrier has consented to the disclosure.  The section would also permit disclosure when required by law.

 

Proposed subsection 531G(4) 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 disclose protected carrier information.  The purpose of this section is to ensure 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 disclose 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).  

 

Proposed subsection 531G(5) would provide for section 70 of the Crimes Act 1914 to apply to an entrusted public official if the person has obtained protected carrier information.  This means that disclosure of protected carrier information otherwise than as permitted by section 531G would be a criminal offence. 

 

Proposed section 531H - Disclosure of protected carrier information to a company

 

Proposed section 531H would set out the circumstances in which an authorised information officer would be permitted to disclose protected carrier information to an entrusted company officer of a company. 

 

Proposed subsection 531H(2) would provide for an authorised information officer to be satisfied of a number of matters before disclosing protected carrier information. For an authorised information officer to be able to disclose protected carrier information:

 

(a)     a designated request for proposal must have been published (proposed paragraph 531H(1)(a)); and

 

(b)     a company must have notified in writing that it is considering making, or intends to make, a submission in response to the notice. The section would also allow disclosure of such information during a later stage of the conduct of a request for proposal process where a company that had made a submission in response to the invitation in the notice is considering varying or intends to vary its proposal.  The circumstances in which it would be permissible for such variations to be made (if at all) are intended to be dealt with as part of any process relating to a request for proposal notice and not in Part 27A ( proposed paragraph 531H(1) (b)); and

 

(c)     if a determination is in force under proposed subsection 531H(3), the notification of the company would need to have been accompanied by such information as is specified in that determination (proposed paragraph 531H(1)(c)); and

 

(d)     if a determination is in force under proposed subsection 531H(4), the conditions set out in the determination must have been met (proposed paragraph 531H(1)(d)); and

 

(e)     if the designated request for proposal notice specified one or more requirements that a company must meet in order to be able to make  submission in response to the invitation set out in the notice, those requirements must have been met; and

 

(f)     a carrier must have given protected carrier information to an authorised information officer (proposed paragraph 531H(1)(f)).

 

The proposed section would it make it clear that an authorised information officer would be allowed to disclose such information to an entrusted company officer only for the purpose of the consideration by the company of whether to make a submission, the preparation of such a submission by the company, or, if the company has already made a submission, for the purposes of the consideration by the company of whether to vary the submission or the preparation of such variation (see proposed paragraphs 531H(1)(f) to (i)).

 

Disclosure would be permitted so long as the disclosure complies with any applicable restricted recipient rules.

 

Similarly to proposed subsection 531G(4), proposed subsection 531H(2) provides that an authorised information officer is not required to give a carrier an opportunity to be heard in relation to a decision to disclose protected information.  The purpose of this section is to ensure 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 authorised information officer to consult with a carrier every time a company notifies an authorised information officer of one of the matters in paragraph 531H(1)(b) in order to decide whether to disclose information under section 531H.    This 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 proposed subsection 531C(4).  

 

Proposed subsection 531H(3) would allow the Minister, by legislative instrument, to make a determination specifying information for the purposes of proposed paragraph 531H(1)(c).  This would allow the Minister to specify in an instrument any information that a company would have to provide to an authorised information officer at the time the company notifies in writing the officer that it is considering or intending to make a submission in response to the designated request for proposal notice. This would assist an authorised information officer in making an informed decision in relation to the disclosure of protected carrier information.

Subsection 531H(4) would allow the Minister, by legislative instrument, to make a determination setting out conditions for the purposes of paragraph 531H(1)(d).  This would allow the Minister to specify conditions in relation to the disclosure of protected carrier information to entrusted company officers of a company.

 

Proposed section 531J - Stay of decisions

 

Proposed subsection 531J(1) would have the effect that the Federal Court or the Federal Magistrates Court would not be able to order, under the Administrative Decisions (Judicial Review) Act 1977 , a stay of a decision by an authorised information officer or an entrusted public official to disclose information.  Similarly, proposed subsection 531J(2) would have the effect that a Court could not make any orders staying such a decision in circumstances where a person has sought judicial review under section 39B of the Judiciary Act 1903 .

 

The Government has announced that it intends to issue a request for proposals in relation to a National Broadband Network (which would be a broadband telecommunications network for the purposes of Part 27A) in early 2008 and that it expects the process to be conducted expeditiously to allow the roll-out of a network to begin by the end of 2008.  The purpose of section 531J is to prevent legal challenges to decisions made under Part 27A, which is intended to facilitate a competitive proposal process, stalling the conduct of that process.  Given the benefits that will flow to the Australian public with the roll-out of a National Broadband Network, preventing the stay of decisions under Part 27A is considered appropriate to ensure that these benefits can be realised as soon as possible.

 

Proposed section 531K - Protection of information - entrusted company officer

 

Proposed section 531K prohibits a person who is an entrusted company officer and has obtained protected carrier information from disclosing that information unless one of the exceptions in the section applies (proposed subsection 531K(1)).  The exceptions are intended to permit the disclosure of protected carrier information by an entrusted company officer to another entrusted company officer (see the discussion of the definition of ‘entrusted company officer’ under proposed section 531B) for the purpose of deciding whether to make a submission in response to a designated request for proposal notice or to prepare such a submission.  It would also permit disclosures at a later stage of a request for proposal process, for example, for the purposes of considering whether to make a variation to a proposal or preparing such a variation (proposed paragraph 531K(2)(a).  The circumstances in which it would be permissible for such variations to be made (if at all) are intended to be dealt with as part of any process relating to a request for proposal notice and not in Part 27A.  The section would also authorise disclosure of the information if the information is disclosed to the Commonwealth (or entrusted company officers) as part of a submission of the company in response to a designated request for proposal notice, or as part of a variation of such a submission (proposed paragraph 531K(2)(b)). 

 

Disclosure under proposed section 531K would be permitted so long as the disclosure complies with any applicable restricted recipient rules.

 

The section would also authorise disclosure where the information has been made publicly known by the carrier who gave the information to an authorised information officer (or by a person authorised by the carrier) or where the carrier has consented to the disclosure.  The section would also permit disclosure where required by law.

 

Proposed subsection 531K(1) is a civil penalty provision which would mean that a pecuniary penalty may be imposed for a contravention of the provision.  Part 31 of the Act deals with pecuniary penalties for breaches of civil penalty provisions.  In particular, contravention of a civil penalty provision by an entrusted company officer could result in the imposition of a pecuniary penalty up to $50,000 for each contravention. 

 

Subsection 531K(3) prohibits a person from aiding, abetting, inducing, procuring or being knowingly involved in a contravention of subsection  531K(1).  This is also a civil penalty provision.

 

Proposed section 531L - Compensation of carrier for loss or damage

 

Proposed section 531L would provide a mechanism for a carrier who has provided information in compliance with Part 27A to be provided with compensation by a company where the Federal Court is satisfied that an entrusted company officer of the company has contravened proposed subsection 531K(1) with the express or implied authorisation of the company and the carrier has suffered loss or damage.  An application for compensation could be made at any time within 6 years after the contravention occurred (proposed subsection 531L(2)).

 

Proposed section 531M - Appointment of authorised information officer

 

Proposed section 531M would enable the Minister to appoint, in writing, an SES employee to be an authorised information officer for the purposes of the Act. The Minister would be able to appoint one or more SES employees as authorised information officers. The term ‘SES employee’ is defined in section 17AA of the AIA as having the same meaning as in the Public Service Act 1999 .

 

Proposed section 531N - Restricted recipients rules

 

Proposed section 531N deals with restricted recipients rules.

 

Proposed subsection 531N(1) would allow the Minister, by legislative instrument, to make rules, to be known as the ‘restricted recipients rules’, restricting or limiting the entrusted company officers to whom protected carrier information may be disclosed under proposed subsection 531(H)(1) or paragraph 531K(2)(a ).  This would have the effect of restricting or limiting the individuals to whom protected carrier information may be disclosed and who would otherwise fall within the definition of entrusted company officer (proposed section 531B).

 

Proposed subsection 531N(2) would make it clear that the restricted recipients rules may make different provision with respect to the disclosure of information in different circumstances.  This would allow the Minister to make different rules to address the different circumstances in which protected carrier information may be disclosed under proposed subsection 531(H)(1) or paragraph 531K(2)(a).

 

Proposed subsection 531N(3) would make it clear that subsection 531N(2) does not limit subsection 33(3A) of the AIA, which provides that, where an Act confers a power to make an instrument (including rules, regulations or by laws) with respect to particular matters, the power should be construed as including a power to make such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters. 

 

Proposed subsection 531N(4) would provide that 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 power. This would allow such APS employees to make administrative decisions in relation to the matters provided for in the rules.

 

The rules may provide for the payment of a fee in respect of the making of such administrative decisions (proposed subsection 531N(5)).  However, the fee imposed must not be such as to amount to taxation (proposed subsection 531N(6)).

 

Proposed section 531P - Storage, handling or destruction of protected carrier information

 

Proposed section 531P deals with the storage, handling or destruction of protected carrier information.

 

Proposed subsection 531P(1) would allow the Minister, by legislative instrument, to make rules relating to the storage, handling or destruction of protected carrier information that has been disclosed under Division 3 of proposed Part 27A.  For example, the Minister may make rules requiring a company and/or an entrusted company officer of that company to store or handle protected carrier information in a certain way, or to destroy such information after a certain period of time.  The rules could detail the practical measures that recipients of protected carrier information would be required to put into place to safeguard the information, including, for example, rules about the facilities in which the information is stored, the manner in which it is transmitted to entrusted company officers, administrative procedures for recording disclosures of protected carrier information and for detailing how the information is referred to, or incorporated into, other documents.

 

To the extent to which rules in force under proposed subsection 531P(1) relate to protected carrier information given to an authorised information officer by a carrier, the rules must not impose any requirements or prohibition on the carrier.

 

Proposed subsection 531P(3) imposes an obligation on a person to comply with rules in force under subsection 531P(1), and subsection 531K(3) prohibits a person from aiding, abetting, inducing, procuring or being knowingly involved in a contravention of proposed subsection 531P(3). 

 

Subsections 531P(3) and 531P(4) are civil penalty provisions, which would mean that a pecuniary penalty may be imposed for contravention of these provisions.  Part 31 of the Act deals with pecuniary penalties for breaches of civil penalty provisions.  In particular, contravention of a civil penalty provision by an entrusted company officer could result in the imposition of a pecuniary penalty up to $50,000 for each contravention. 

 

Proposed section 531Q - Submissions by companies

 

Proposed section 531Q would make it clear that, for the purposes of Part 27A of the Act, it is immaterial whether a company’s submission is made by the company alone or by the company jointly with one or more companies. This recognises that submissions received in response to a designated request for proposal notice may take a number of forms, including submissions that are prepared jointly by two or more companies.