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Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

 

 

 

 

 

TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK) BILL 2008

 

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Minister for Broadband, Communications

and the Digital Economy, Senator the Hon. Stephen Conroy)

 

 



TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK) BILL 2008

 

 

Amendments to be moved on behalf of the Government

 

 

OUTLINE

 

The Telecommunications Legislation Amendment (National Broadband Network) Bill 2008 (the Bill) amends the Telecommunications Act 1997 (the Act) to provide for specified information to be provided by telecommunications carriers to the Commonwealth, so that this information can be disclosed to companies who are considering making or intend to make a submission in response to a request for proposal issued by the Commonwealth for the creation or development of a National Broadband Network. 

 

The Bill would insert a new Part 27A into the Act (see item 11 of Schedule 1 to the Bill).  Part 27A would set out a scheme for the provision of information as specified by the Minister in a disallowable instrument, and for the protection of the information that is provided by carriers.  Division 3 of new Part 27A would prohibit disclosure of protected carrier information except in specified circumstances. These non-disclosure obligations would apply to any person to whom the information is disclosed under an exception.  Contravention of the non-disclosure obligations would result in a criminal offence for individuals who fall within the scope of the definition of ‘entrusted public official’, and in a civil penalty for individuals who fall within the scope of the definition of ‘entrusted company officer’.

 

The proposed amendments would amend item 11 of Schedule 1 to the Bill to enhance and clarify the operation of the Bill.  The proposed amendments respond to concerns raised in submissions to the Senate Standing Committee on Environment, Communications and the Arts’ inquiry into the Bill and representations made directly to the Government.

 

Information provided to the Commonwealth voluntarily

 

Proposed amendments (2) and (4) are intended to address the possibility of carriers providing information to the Commonwealth on a voluntary basis prior to or after the commencement of new Part 27A.  This is consistent with the Government’s stated preference that network information be collected from carriers on a voluntary basis. 

 

Proposed amendment (4) would provide a mechanism for information provided by carriers to the Commonwealth on a voluntary basis prior to, and within 12 months of, the commencement of new Part 27A to be deemed to be protected carrier information for the purposes of the operation of that Part.  An authorised information officer would need to give a carrier that provided information voluntarily a written undertaking, on behalf of the Commonwealth, that the information would be treated as protected carrier information after the commencement of new Part 27A and that it would not be disclosed prior to that time, in order for the information to be deemed to be protected carrier information.  The amendments would bring such information within the scheme in proposed Part 27A, so that it would be subject to the non-disclosure obligations (and the restrictions on use that would be made clear by proposed amendments (1) and (6) to (14)) contained in new Part 27A.  However, the proposed amendments would not result in the retrospective application of the civil penalty or criminal offence provisions in new Part 27A. 

 

Proposed amendment (2) would provide for the Secretary of the Department, a Deputy Secretary of the Department or an SES employee in the Department whose duties relate to the National Broadband Network Task Force to be authorised information officers for the purposes of Part 27A, so that they would be able to disclose information as permitted under new Part 27A following its commencement.

 

Use of protected carrier information

 

Proposed amendments (1) and (6) to (14) would include express prohibitions in the Bill in relation to the use of protected carrier information by entrusted public officials and entrusted company officers except for specified purposes.  The purposes for which protected carrier information could be used by entrusted public officials or entrusted company officers would be consistent with the exceptions which permit the disclosure of protected carrier information by such persons.  The proposed amendments would clarify the intended operation of the Bill and are intended to address concerns carriers may have in relation to the purposes for which protected carrier information may be used.

 

Co mpensation of carrier for loss or damage

 

Proposed amendment (15) would provide an additional mechanism for a carrier who has provided information in compliance with Part 27A to apply to the Federal Court for a compensation order.  The Federal Court would be able to make such an order if the Court is satisfied that an entrusted company officer of the company has contravened the prohibition on disclosure and use of protected carrier information in proposed subsection 531K(1) or 531K(3) and the carrier has suffered loss or damage.  This would enable a carrier to be provided with compensation in relation to a contravention by an entrusted company officer who was an employee or an agent of the company and the officer’s conduct was within his or her actual or apparent scope as an employee or agent of the company and would complement the existing compensation provisions in proposed subsections 531L(1) and 531L(2).

 

 

FINANCIAL IMPACT STATEMENT

 

The proposed amendments are not expected to have any significant financial impact on Commonwealth expenditure or revenue.



ABBREVIATIONS

 

 

The following abbreviations are used in this supplementary explanatory memorandum:

 

 

Act:                                         Telecommunications Act 1997

 

Bill:                                         Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

 

Department:                            Department of Broadband, Communications and the Digital Economy

 

Minister:                                  Minister for Broadband, Communications and the Digital Economy



 

NOTES ON AMENDMENTS

 

 

Amendment (1)

 

Amendment (1) would amend the simplified outline in proposed section 531A in item 11 of Schedule 1 to the Bill by including in the simplified outline a reference to the prohibition on use of protected carrier information.  The proposed amendment is consequential to the proposed amendments (6) to (14).

 

Amendment (2)

 

Amendment (2) would omit the current definition of ‘authorised information officer’ in proposed section 531B in item 11 of Schedule 1 to the Bill and substitute it with a new definition of ‘authorised information officer’.

 

Proposed section 531B currently provides that the term ‘authorised information officer’ means a person for whom an appointment as an authorised information officer is in force under proposed section 531M. 

 

The amendment would deem the Secretary, a Deputy Secretary of the Department, or an individual who is an SES employee in the Department and whose duties relate to the National Broadband Network Task Force to be authorised information officers in addition to any person who may be appointed as authorised information officer under proposed section 531M.  This to ensure that information can be provided voluntarily to particular Departmental officers prior to the commencement of the Bill for the purposes of the definition of ‘protected carrier information’ in proposed section 531B (as amended by amendment (4)).  This would also enable those officers to give a written undertaking to treat the information as protected carrier information and, following commencement of new Part 27A, to use and disclose the information as permitted under that Part.  Following commencement of the Bill, the Minister could appoint additional authorised information officers who would also be able to receive voluntarily provided information for the purposes of the definition of ‘protected carrier information’.

 

Amendment (3)

 

Amendment (3) would amend proposed section 531B by inserting a new definition of ‘matter preparatory to the publication of a designated request for proposal notice’ after the definition of ‘entrusted public official’.  A ‘matter preparatory to the publication of designated request for proposal notice’ would include a matter preparatory to the publication of a variation of a designated request for proposal notice.  The phrase is used in proposed subsections 531G(2) and 531G(3A) which set out the purposes for which protected carrier information may be disclosed or used.

 

Amendment (4)

 

Amendment (4) would insert a new paragraph (aa) before paragraph (a) of the definition of ‘protected carrier information’ in proposed section 531B.

 

Proposed section 531B defines ‘protected carrier information’ as any information that is given to an authorised information officer under proposed section 531F or has been disclosed as permitted by particular provisions of Division 3 of new Part 27A.

 

Amendment (4) would expand the definition of ‘protected carrier information’ to include any information that was given by a carrier to an authorised information officer (as defined in proposed section 531B as amended by proposed amendment (2)) during the period between 27 February 2008 and 12 months after the date of commencement of new Part 27A, provided that an undertaking, given by an authorised information officer on behalf of the Commonwealth, that meets the requirements of the definition has been provided to the carrier after the information has been provided.  The Minister wrote to a number of carriers on 27 February 2008 concerning the voluntary provision of information.  The period during which voluntary information could be received and treated as protected carrier information would end 12 months after the commencement of new Part 27A for consistency with the sunsetting of the obligation on carriers to provide information in an instrument made under proposed section 531C (see proposed subsection 531F(3) in item 11 of Schedule 1 to the Bill). 

 

In order for voluntarily provided information to fall within the definition of protected carrier information, the authorised information officer would need to undertake to treat the information provided as protected carrier information for the purposes of Part 27A after commencement of that Part.  The purpose of this requirement is to ensure that the authorised information officer can satisfy herself or himself that the information provided meets the Commonwealth’s requirements and is appropriate to be treated as protected carrier information before the information will be deemed to be such.  In addition, the authorised information officer would need to undertake not to disclose the information before the commencement of new Part 27A.  The purpose of this requirement is to ensure that the operation of the proposed amendment would not result in the retrospective application of the criminal offence and civil penalty provisions in new Part 27A.

 

If these requirements have been met, the information provided would be deemed to be protected carrier information for the purposes of new Part 27A, so that the provisions of Part 27A would apply to such information from the date of commencement of Part 27A and such information would be subject to the prohibitions on use and disclosure, and the exceptions to those prohibitions, contained in new Part 27A.

 

Amendment (5)

 

Amendment (5) would amend the definition of ‘designated request for proposal notice’ in proposed section 531D by adding a new subsection 531D(3).  This amendment would make it clear that, for the purposes of the definition, it is immaterial whether the notice was published before or after the date of commencement of section 531D.  This would make it clear that the Request for Proposals that was released by the Commonwealth on the Austender website on 11 April 2008 inviting proposals to roll-out and operate a national broadband network for Australia is covered by the definition of ‘designated request for proposal notice’ in proposed section 531D.

 

Amendment (6)

 

Amendment (6) would amend proposed section 531G by omitting proposed subsection 531G(1) and substituting it with a new subsection 531G(1).  This amendment would have the effect of imposing on an entrusted public official who has obtained protected carrier information in his or her capacity as an entrusted public official an obligation not to use the information (proposed paragraph 531G(1)(b)), in addition to the obligation not to disclose the information (proposed subsection 531G(1)(a)), unless one of the exceptions in that section (as amended by amendment (8)) applies.

 

The proposed amendment would clarify the intended operation of the Bill and is intended to address concerns carriers may have in relation to the purposes for which protected carrier information may be used.

 

Amendment (7)

 

Amendment (7) would amend proposed subsection 531G(2) by inserting the words “of disclosure” after the word “prohibition” in proposed subsection 531G(2).  This would make it clear that proposed subsection 531G(2) sets outs the purposes for which protected carrier information may be disclosed by an entrusted public official.  Proposed subsection 531G(3A) would set out the purposes for which protected carrier information would be permitted to be used by an entrusted public official (see amendment (8) below).

 

Amendment (8)

 

Amendment (8) would amend proposed section 531G by inserting a new subsection 531G(3A) and a new subsection 531G(3B) after proposed subsection 531G(3).

 

New subsection 531G(3A) would specify the permitted purposes for which an entrusted public official may use protected carrier information.  The purposes for which protected carrier information may be used would be consistent with the purposes for which the information may be disclosed under proposed subsection 531G(2).  The only purpose in proposed subsection 531G(2) that is not mirrored in proposed subsection 531G(3A) is paragraph 531G(2)(h), which allows an authorised information officer to disclose protected carrier information under proposed section 531H.  A similar purpose for use of information is not necessary.

 

New subsection 531G(3B) would make it clear that paragraph 531G(3A)(e) would cease to have effect 12 months after the commencement of that subsection.  This would make it clear that protected carrier information may be used for a purpose prescribed in the regulations only for a limited time in the same way as the ability to disclose protected carrier information for a prescribed purpose would operate for a limited time.

 

Amendment (9)

 

Amendment (9) would amend proposed section 531G by inserting a new subsection 531G(4A) after proposed subsection 531G(4).  This amendment would provide that an entrusted public official is not required to give a carrier an opportunity to be heard in relation to a decision to use protected carrier information.  This is consistent with proposed subsection 531G(4) and has the same purpose of ensuring that the intended purpose of Part 27A, which is to facilitate the conduct of a request for proposal process for the development of a National Broadband Network, is not undermined by delays created by the potential need for an entrusted public official to consult with a carrier every time an official proposes to use information in reliance on one of the exceptions in proposed section 531G.  This provision is intended to displace any common law obligation to consult a carrier.  However, a consultation process is provided for by the Bill at the beginning of the process (prior to the provision of the information by carriers), which is the making of an instrument under subsection 531C(4).

 

Amendments (10) and (11)

 

Amendments (10) and (11) would make consequential changes to proposed section 531J to reflect the new proposed subsection 531G(3A) (see amendment (8)). 

 

Amendment (10) would add at the end of proposed subsections 531J(1) the words “or a decision to use information under subsection 531G(3A).”  This would extend the application of proposed subsection 531J(1) to a decision to use information under proposed subsection 531G(3A) and 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 entrusted public official to use information under that subsection.

 

Amendment (11) would amend subsection 531J(2) by inserting after “531H(1)” the words “or a decision to use information under subsection 531G(3A).”  This would extend the application of proposed subsection 531J(2) to a decision to use information under proposed subsection 531G(3A) and 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 .

 

As explained in the Explanatory Memorandum to the Bill, the purpose of proposed section 531J is to prevent legal challenges to decisions made under Part 27A, which is intended to facilitate a competitive proposal process for the National Broadband Network, 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.

 

Amendment (12)

 

Amendment (12) would amend proposed section 531K by omitting proposed subsection 531K(1) and substituting it with a new subsection 531K(1).  This amendment would have the effect of imposing on an entrusted company officer of a company, who has obtained protected carrier information in his or her capacity as an entrusted company officer, an obligation not to use the information (proposed paragraph 531K(1)(b)), in addition to the obligation not to disclose the information (proposed subsection 531K(1)(a)), unless one of the exceptions in that section (as amended by amendment (14)) applies.

 

Similarly to amendment (6), this proposed amendment would clarify the intended operation of the Bill and is intended to address concerns carriers may have in relation to the purposes for which protected carrier information may be used.

 

Amendment (13)

 

Amendment (13) would amend proposed subsection 531K(2) by inserting the words “of disclosure” after the word “prohibition” in proposed subsection 531K(2).  This would make it clear that proposed subsection 531K(2) sets outs the purposes for which protected carrier information may be disclosed by an entrusted company officer.  Proposed subsection 531K(2A) would set out the purposes for which protected carrier information would be permitted to be used by an entrusted company officer (see amendment (14) below).

 

Amendment (14)

 

Amendment (14) would amend proposed section 531K by inserting a new subsection 531G(2A) after proposed subsection 531K(2).

 

New subsection 531K(2A) would specify the permitted purposes for which an entrusted company officer may use protected carrier information. 

 

The purposes for which protected carrier information may be used would be consistent with the purposes for which the information may be disclosed under proposed subsection 531K(2).  The only purpose which is listed in subsection 531K(2) that is not mirrored in proposed subsection 531K(2A) is paragraph 531K(2)(b), which allows disclosure of protected carrier information to the Commonwealth as part of a submission of the company in response to a designated request for proposal notice, or as part of variation of such a submission.  A similar purpose for use of the information is not necessary.

 

Amendment (15)

 

Amendment 15 would amend proposed section 531L by adding new subsections 531L(3), 531L(4) and 531L(5) at the end of proposed section 531L.

 

Proposed subsection 531L(3) would provide an additional mechanism for a carrier who has provided information in compliance with Part 27A to apply to the Federal Court for a compensation order.  The Federal Court would be able to make such an order if the Court is satisfied that an entrusted company officer of the company has contravened the prohibition on disclosure and use of protected carrier information in proposed subsection 531K(1) or 531K(3) and the carrier has suffered loss or damage.  This would enable a carrier to seek compensation in relation to a contravention by an entrusted company officer who was an employee or agent of the company and the officer’s conduct was within his or her actual or apparent scope as an employee or agent of the company and would complement the existing compensation provisions in proposed subsections 531L(1) and (2).

 

Proposed subsection 531L(4) would it make it clear that an application for compensation under subsection 531L(3) could be made at any time within 6 years after the contravention occurred.  This would replicate the time limit that applies to an application for a compensation order under subsection 531L(1).

 

 

Proposed subsection 531L(5) would make it clear that compensation is not payable to a company under both proposed subsections 531L(1) and 531L(3) in respect of the same contravention of proposed subsections 531K(1) or 531K(3).