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Telecommunications Legislation Amendment (National Broadband Network) Bill 2008

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK) BILL 2008

 

 

 

 

 

 

FURTHER SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be moved on behalf of the Government

 

 

 

 

 

 

(Circulated by authority of the Minister for Broadband, Communications

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

 

 



TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK) BILL 2008

 

 

Amendments to be moved on behalf of the Government

 

 

OUTLINE

 

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

 

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

 

The proposed amendments would :

 

  • omit Opposition amendments passed in the Senate that are unnecessary, technically flawed, unclear in their operation or that inappropriately constrain the Ministerial advisory process in relation to the National Broadband Network ;



  • re-insert the Government amendment providing a mechanism to deem information provided by a carrier voluntarily to the Commonwealth prior to, and within 12 months of, commencement of Part 27A to be protected carrier information for the purposes of Part 27A following the commencement of that Part; and



  • re-insert the Government amendment removing the requirement that entrusted public officials give a carrier an opportunity to be heard before he or she makes a decision to use protected carrier information. This is to avoid the Request for Proposals process of the National Broadband Network process being undermined by unnecessary delays.

 

 

 

 

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 further supplementary explanatory memorandum:

 

 

Act:                                         Telecommunications Act 1997

 

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

 

Department:                            Department of Broadband, Communications and the Digital Economy

 

Minister:                                  Minister for Broadband, Communications and the Digital Economy



 

NOTES ON AMENDMENTS

 

 

Amendment (1)

 

Amendment (1) would omit the definition of ‘voluntary disclosure arrangement’.  This definition is used in proposed section 531FA, which is also proposed to be omitted.  It is very unclear how the scheme proposed by the Opposition for the voluntary disclosure of information in proposed section 531FA is intended to work.

 

Amendment (2)

 

Amendment (2) would omit the reference to ‘An eligible carrier’ in the simplified outline to proposed Part 27A of the Act and replace it with a reference to ‘A carrier’.

 

The Opposition has proposed a two-part disclosure regime, one exclusively for ‘volunteering carriers’ and one for ‘eligible carriers’ who need to be compelled to provide information.  This would create two different approaches to the treatment of information provided by carriers, which could lead to inconsistencies in outcomes. 

 

Amendment (3)

 

Amendment (3) would omit words from the simplified outline that attempt to describe the Opposition’s disclosure regime.  These words refer to a carrier being exempt from compulsory disclosure of information under proposed Part 27A where voluntary disclosure information provided wholly or substantially amounts to compliance with a direction issued by the Minister.  It is not clear what the ‘direction’ is that the Minister would use to request information - or how it relates to the information the Minister would require from ‘eligible carriers’ under a legislative instrument under the compulsory scheme.  Indeed, it is not clear when a carrier would be considered to have satisfied the Minister’s direction and a decision could be made that it did not need to be an ‘eligible carrier’.  

 

A ‘voluntary carrier’ would be covered by the Opposition’s proposed scheme if the information it provided ‘substantially amounts to compliance with the Minister’s direction’.  This creates the significant risk of the ‘voluntary provider’ determining what it is it will provide and that the information provided may be inadequate.  It is easy to envisage prolonged legal proceedings over whether a ‘volunteering carrier’ has substantially complied with the ‘direction’.

 

The voluntary regime would be wholly dependent on the Government being able to agree voluntary disclosure arrangements with the ‘volunteering carrier’.  Agreement of mutually satisfactory arrangements cannot be guaranteed and so the scheme may not work.  Prolonged discussion of voluntary disclosure arrangements may delay the overall process.

 

 

 

Amendment (4)

 

Amendment (4) would omit the definition of ‘eligible carrier’ in proposed section 531B.

 

As indicated above, the Opposition has a proposed two-part disclosure regime, one exclusively for ‘volunteering carriers’ and one for ‘eligible carriers’ who would be obliged to provide information following the making of an instrument by the Minister under proposed section 531C.  This would create two different approaches to the treatment of information provided by carriers, which could lead to inconsistencies in outcomes. 

 

Amendment (5)

 

Amendment (5) would re-insert a Government amendment that was negatived in the Senate.  It would insert a new paragraph (aa) before paragraph (a) of the definition of ‘protected carrier information’ in proposed section 531B.

 

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

 

Amendment (5) would expand the definition of ‘protected carrier information’ to include any information that was given by a carrier to an authorised information officer (as defined in proposed section 531B) during the period between 27 February 2008 and 12 months after the date of commencement of new Part 27A, provided that an undertaking, given by an authorised information officer on behalf of the Commonwealth, that meets the requirements of the definition has been provided to the carrier after the information has been provided.  The Minister wrote to a number of carriers on 27 February 2008 concerning the voluntary provision of information.  The period during which voluntary information could be received and treated as protected carrier information would end 12 months after the commencement of new Part 27A for consistency with the sunsetting of the obligation on carriers to provide information in an instrument made under proposed section 531C (see proposed subsection 531F(3) in item 11 of Schedule 1 to the Bill). 

 

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

 

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

 

Amendment (6)

 

Amendment (6) would omit references to ‘eligible carrier’ from proposed section 531C (which enables the Minister to make an instrument specifying information to be provided by specified carriers) and replaces them with references to ‘carrier’.

 

As indicated above, the Opposition has a proposed two-part disclosure regime, one exclusively for ‘volunteering carriers’ and one for ‘eligible carriers’ who would be obliged to provide information following the making of an instrument by the Minister under proposed section 531C.  This would create two different approaches to the treatment of network data, which could lead to inconsistencies in outcomes. 

 

Amendment (7) to (9)

 

Amendment (7) would omit references to ‘eligible carrier’ from the heading to Division 2 of new Part 27A, from the heading to proposed section 531F, and from proposed section 531F, wherever occurring, and replace them with references to ‘carrier’.

 

Amendment (10)

 

Amendment (10) would omit proposed section 531FA, which reflects the Opposition’s scheme relating to the voluntary disclosure of information by carriers to the Commonwealth.

 

The Opposition has proposed a scheme of its own aimed at providing some kind of protection to information provided voluntarily.  It is very unclear how the scheme is intended to work or that it offers much in the way of protection to information provided voluntarily, given that the use and disclosure of such information would be dealt with in the voluntary disclosure arrangements. 

 

It appears that the Opposition’s approach would effectively create a two-part regime, one exclusively for ‘volunteering carriers’ and one for ‘eligible carriers’.  As mentioned above, this in itself would create two different approaches to the treatment of information provided by different carriers, which may lead to inconsistencies in outcomes. 

 

The voluntary disclosure regime would be wholly dependent on the Government being able to agree voluntary disclosure arrangements with the ‘volunteering carriers’.  Agreement of mutually satisfactory arrangements cannot be guaranteed and so the scheme may not work.  Prolonged discussion of such arrangements may delay the overall process.

 

The ability to provide information to potential proponents - which is the fundamental objective of proposed Part 27A - appears to be wholly dependent on the contents of the contracts or confidentiality deeds that could be made under the “voluntary disclosure arrangements”.

 

The scheme appears only to offer the carrier providing the information the protections in the contracts or confidentiality deeds.  It does not provide the strong statutory protections provided elsewhere in the Bill and it does not set out the purposes for which information could be disclosed or used, as that would be left for the voluntary disclosure arrangements made between the carriers and the Commonwealth.  It is difficult to imagine the Government would agree to protections greater than those in the Bill, or that a ‘volunteering carrier’ would agree to anything less.  It is therefore unclear the extent to which information would voluntarily be provided under the scheme.

 

Amendment (11)

 

Amendment (11) would omit proposed subsection 531G(1A), which was inserted by an Opposition amendment moved in the Senate.  Proposed subsection 531G(1A) would prevent an entrusted public official from using protected carrier information for any purpose apart from the preparation of proposals for the National Broadband Network.  This provision is unduly restrictive and is inconsistent with the exceptions to the prohibition on use of protected carrier information contained in proposed subsection 531G(3A).

 

Amendment (12)

 

Amendment (12) would re-insert a Government amendment that was negatived in the Senate.  It would amend proposed section 531G by inserting a new subsection 531G(4A) after proposed subsection 531G(4).  This amendment would provide that an entrusted public official is not required to give a carrier an opportunity to be heard in relation to a decision to use protected carrier information.  This is consistent with proposed subsection 531G(4) and has the same purpose of ensuring that the intended purpose of Part 27A, which is to facilitate the conduct of a request for proposal process for the development of a National Broadband Network, is not undermined by delays created by the potential need for an entrusted public official to consult with a carrier every time an official proposes to use information in reliance on one of the exceptions in proposed section 531G.  This provision is intended to displace any common law obligation to consult a carrier.  However, a consultation process is provided for by the Bill at the beginning of the process (prior to the provision of the information by carriers), which is the making of an instrument under subsection 531C(4).

 

Amendments (13) and (14)

 

Amendment (13) would omit proposed subsection 531K(1A), which was inserted by an Opposition amendment moved in the Senate.  Proposed subsection 531K(1A) would prevent an entrusted company office from using protected carrier information for any purpose apart from the preparation of proposals for the National Broadband Network.  This provision is unduly restrictive and is inconsistent with the exceptions to the prohibition on use of protected carrier information contained in proposed subsection 531K(2A).

 

Amendment (14) is consequential upon Amendment (13).

 

Amendment (15)

 

Amendment (15) would omit proposed paragraph 531L(1)(ca) which was inserted by an Opposition amendment passed in the Senate.  This amendment is unnecessary having regard to paragraph 531L(1)(d), which requires the Court to be satisfied that a company expressly, tacitly or impliedly authorised or permitted a contravention of proposed section 531K before making an order that the Court considers appropriate directing the company to compensate a carrier who has suffered loss or damage as a result of the contravention.

 

Amendment (16)

 

Amendment (16) would omit proposed subsection 531L(2), which was an Opposition amendment passed by the Senate.  Although the operation of this amendment is unclear, it appears to attempt to allow the Court to make an order directing the Commonwealth to compensate a carrier who has suffered loss or damage as a result of an unauthorised disclosure or use of protected information by an entrusted public official acting within the course of the official’s employment or within the official’s actual or apparent authority.  This amendment is unnecessary given that entrusted public officials are already subject to criminal liability under proposed section 531G for the unauthorised disclosure or use of protected information.

 

Amendment (17)

 

Amendment (17) would replace proposed subsection 531P(1), which was an Opposition amendment passed by the Senate requiring, rather than permitting, the Minister to make rules relating to the storage, handling or destruction of protected carrier information, with a new subsection 531P(1) in the form contained in the Bill as introduced.  The Opposition amendment is overly prescriptive.  It may be possible for issues connected with storage, handling or destruction of protected carrier information to be dealt with administratively by the Department rather than by way of a legislative instrument made by the Minister.

 

Amendment (18)

 

Amendment (18) would omit Division 4 of proposed Part 27A of the Act, which was introduced as a result of an Opposition amendment passed by the Senate.  Division 4 would deal with the Ministerial advisory process in relation to the National Broadband Network, including the Panel of Experts and an interdepartmental and multi-agency committee.

 

Proposed Division 4 is unnecessary, it would increase costs associated with the National Broadband Network project and inappropriately constrains the Ministerial advisory process in relation to the project.  A Panel of Expert and interdepartmental committee have already been established and are in operation.  In addition, many of the procedural requirements contained in proposed Division 4 are already reflected in current arrangements.