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 Measures No. 1) Bill 2009

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

2008-2009

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

 

 

 

 

 

TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK MEASURES NO. 1) BILL 2009

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Broadband, Communications

and the Digital Economy, Senator the Honourable Stephen Conroy)



TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK MEASURES NO. 1) BILL 2009

 

OUTLINE

 

The Telecommunications Legislation Amendment (National Broadband Network Measures No. 1) Bill 2009 (the Bill) amends the Telecommunications Act 1997 (the Act) to provide for network information to be provided by telecommunications carriers and other utilities to the Commonwealth for purposes related to the planning and roll-out of the National Broadband Network (NBN) in accordance with the Government’s announcement. 

 

The amendments to the Act are required as a result of the Government’s announcement on 7 April 2009 with respect to the establishment of a company to build and operate a new superfast National Broadband Network (the NBN Company). The Government also announced that it would commence an implementation study to determine the operating arrangements and detailed network design, as well as ways to attract private sector investment and to provide procurement opportunities for local businesses.

 

Part 27A of the Act currently provides for specified information to be provided by telecommunications carriers to the Commonwealth, so that this information can be disclosed to companies that made a submission in response to the request for proposals for the National Broadband Network that was issued by the Commonwealth in April 2008.  Part 27A is limited in its operation.  Since it was prepared for the purposes of the Government’s request for proposals for the National Broadband Network, it does not require carriers to provide information to the Commonwealth after 26 May 2009.  It also does not deal with the collection of information from entities that own or operate infrastructure that could be relevant to the roll-out of the National Broadband Network but that are not carriers.  Furthermore, the provisions of Part 27A that permit the disclosure and use of information are currently limited to purposes associated with the National Broadband Network Request for Proposals process, which was terminated on 7 April 2009. 

 

As a result of the Government’s National Broadband Network announcement, it is necessary to make changes to Part 27A to permit information that is obtained to be disclosed and used for purposes associated with the Implementation Study for the National Broadband Network.  Part 27A also needs to be amended to deal with disclosure of information to, and use of information by, the NBN Company and any associated companies, for purposes related to a broadband telecommunications network, as appropriate.

 

The Bill is intended to address these issues by amending Part 27A of the Act to take account of the Government’s announcements with respect to the National Broadband Network, notably the creation of a National Broadband Network company, and the conduct of an Implementation Study for the National Broadband Network.  The Bill:

-           amends the provisions in Part 27A that impose the requirement to provide information so that the requirement may apply to utilities as well as to telecommunications carriers;

-           amends the provisions of Part 27A that set out the purposes for which information is permitted to be disclosed and used, so that:

o    information may be disclosed to, and used by, Commonwealth officials and advisers for the purposes of the Implementation Study for the National Broadband Network, or for a purpose specified in the regulations that is related to a broadband telecommunications network; and

o    information can be disclosed to, and used by, the NBN Company and any other company that is specified by the Minister for purposes related to a broadband telecommunications network; and

-           amends the sunset periods applying to certain provisions in Part 27A (as amended) so that information can be disclosed and used during the period of the roll-out of the National Broadband Network.

 

Each of these matters is explained in further detail below.

 

Provision of information by utilities, as well as telecommunications carriers

 

To facilitate deployment of the Network Broadband Network, information will be needed on the location of ducts, conduit, poles and similar infrastructure from both carriers and utilities, such as electricity and water utilities, or transport infrastructure utilities.

 

The Bill therefore amends Part 27A to provide that utilities (as well as carriers) may be required to give information that is specified by the Minister in a disallowable instrument to an ‘authorised information officer’.  The Bill will amend the provisions setting out the consultation requirement applying to such instruments, so that the Minister will be required to give carriers and utilities five business days to provide comments in relation to a draft instrument that relates to them.  (The Act currently provides for a consultation period of three business days.) 

 

Failure to comply with the requirement to provide specified information would be a contravention of a civil penalty provision.  A person who aids or abets or otherwise seeks to procure a contravention of the requirement would also contravene a civil penalty provision.  The pecuniary penalties applying to contraventions of civil penalty provisions are as set out in Part 31 of the Act.

 

The information that is specified by the Minister and that must be provided must be information about things that could be used for, or in connection with, the creation or development of a broadband telecommunications network, or the supply of carriage services over this type of network, or a matter ancillary or incidental to those topics.  This requirement imposes appropriate restrictions on the type of information that carriers and utilities can be required to provide to the Commonwealth, and reflects the fact that Part 27A deals with information relating to a broadband telecommunications network. 

 

The requirement to provide information would apply to a defined class of ‘utility’, being a person that provides reticulated products or services, carriage services (other than those supplied by a carriage service provider), transport services, or a similar product of service, or a person who owns any infrastructure that is used to provide those services to the public. This recognises that while, in most cases, the company that provides utility services to the public may be able to provide the necessary information, in some instances the relevant information may be held by infrastructure owners rather than service providers.

 

The Bill provides that the obligation on carriers and utilities to provide specified information to an authorised information officer would apply for a period of 10 years.  Although it is anticipated that the roll-out will occur over an eight year period, this provision permits flexibility.

 

The Bill makes a number of minor and consequential changes to Part 27A as a result of the application to utilities of the obligation in that Part to provide information.  For example, it replaces the term ‘protected carrier information’ with the term ‘protected network information’, which will include information provided by utilities.  ‘Protected network information’ will also include any information that has been provided by carriers in accordance with the requirements of Part 27A as it existed before the amendments proposed by this Bill.

 

Permitted purposes for which protected network information may be disclosed and used

 

Disclosure to, and use by, entrusted public officials

 

Division 3 of Part 27A sets out the purposes for which protected network information may be disclosed or used.  The Bill amends Division 3 to enable the use of information for the purposes of the planning and development of the National Broadband Network.

 

Under the amendments made to Division 3 by the Bill, protected network information may be disclosed to, and used by, an ‘entrusted public official’ for the purposes of the Implementation Study for the National Broadband Network, or for a purpose that is specified in the regulations.  Any purpose that is specified in the regulations must relate to a broadband telecommunications network.  The term ‘entrusted public official’ is defined in Part 27A and includes a Minister, a Secretary of a Department, Commonwealth officers, and persons who are providing services to the Commonwealth or who are consultants to the Commonwealth.  This will enable Commonwealth officials and advisers to the Commonwealth to be provided with, and to use, protected network information for the purposes of the Implementation Study for the National Broadband Network.

 

The Minister will have the power to impose (by legislative instrument) further restrictions on the use of information by public officials who obtain the network information.  In addition, current provisions in Part 27A providing that the Minister can make rules relating to the storage, handling and destruction of information, will continue to operate.  This will enable the information to be appropriately protected.

 

As is currently the case under Part 27A, unauthorised disclosure of information by an entrusted public official would be a contravention of section 70 of the Crimes Act 1914 .

 

Disclosure to, and use by, entrusted company officers

 

In addition, the Bill amends Part 27A to provide that protected network information may be disclosed by an authorised information officer to an ‘entrusted company officer’ of the NBN Company, or of a ‘designated broadband company’, for purposes associated with a broadband telecommunications network.  The NBN Company is A.C.N. 136 533 741 Limited, a company that has been established by the Commonwealth.  The Bill has been drafted to acknowledge that the NBN Company is yet to adopt a permanent name.  I t is possible that other companies may also be established as part of the process of rolling-out the National Broadband Network, in particular as subsidiaries of the NBN Company.  For this reason, t he provisions dealing with designated broadband companies allow the Minister to specify in a legislative instrument other companies that would be eligible to receive protected network information.  In order to be specified, a company would be required to meet certain ownership requirements at the time that the Minister makes the instrument specifying the company.

 

The Bill amends the definition of ‘entrusted company officer’ to provide that an entrusted company officer of the NBN Company includes an employee or director of a company that is an equipment vendor to the NBN Company.  The same would apply for the entrusted company officers of a designated broadband company.  This will ensure that equipment vendors could, if necessary, receive the protected network information for purposes related to a broadband telecommunications network.

 

It is intended any exercise by an authorised information officer of the discretion to disclose protected network information to an entrusted company officer of the NBN Company or a designated broadband company would only occur after the Implementation Study for the National Broadband Network has reported, taking into account its recommendations, and after consultation with the Minister.

 

The Bill permits the Minister to impose further conditions, by legislative instrument, on access to, and use of, information by the NBN Company or by any designated broadband company.  In addition, current provisions in Part 27A providing that the Minister can make rules relating to the storage, handling and destruction of information, and limiting the entrusted company officers to whom information can be disclosed, will continue to operate.  These measures will allow for appropriate protections to be put in place.

 

Unauthorised disclosure or use of protected network information by an entrusted company officer would be a contravention of a civil penalty provision.  A person who aids or abets or otherwise seeks to procure an unauthorised disclosure or use of protected network information would also contravene a civil penalty provision.  The pecuniary penalties applying to contraventions of civil penalty provisions are as set out in Part 31 of the Act.

 

Sunset periods

 

Provisions of Part 27A to be inserted by the Bill that permit the disclosure and use of protected network information for purposes relating to the Implementation Study will cease to operate on 30 June 2010, or a later date that may be specified by the Minister.  This is to take account of the fact that the Implementation Study is due to report early in 2010.

 

By contrast, in recognition of the fact that the roll-out of the NBN may take many years, those provisions that permit disclosure of protected network information to, and use of, that information by the NBN Company or another designated broadband company would cease to operate after 10 years.  This longer sunset period will also apply to the disclosure of protected network information to entrusted public officials, and the use of the information by them, for purposes specified in the regulations.  This will ensure that entrusted public officials can still use the information (should the need arise) during the period of the roll-out of the NBN, even after the completion of the Implementation Study (for example, to advise Government).

 

Other amendments

 

The Bill also amends Part 27A to remove a number of provisions which are no longer needed as a result of the termination of the National Broadband Network request for proposals.

 

FINANCIAL IMPACT STATEMENT

 

The administration costs, including staffing, are expected to be no more than $100,000 in the first year.

 

REGULATION IMPACT STATEMENT

1.         Issues which give rise to the need for action

 

Background

 

The Australian Government considers that access to high-speed broadband services is critical to Australia’s future economic prosperity and social well-being. 

 

Against this background, on 7 April 2009, the Government announced it would establish a majority Commonwealth-owned company to invest up to $43 billion in partnership with private investors to build a new superfast, fibre optic based National Broadband Network (NBN).

 

Within the funding envelope, the NBN will cover 90 per cent of all Australian homes, schools and workplaces with fibre-based broadband, with speeds up to 100Mbps - 100 times faster than those currently used by many households and businesses.  Other premises will be covered by next generation wireless and satellite technologies delivering broadband speeds of 12 megabits per second or more.

 

The NBN will be the single largest nation-building infrastructure project in Australian history.  It is a top infrastructure priority.

 

In Australia, Access Economics found that a national high-speed broadband network will also positively impact on Australia’s economic performance.  It has pointed to the benefits of improved organisation, to the introduction of new services, better communication and enhanced choice and convenience for consumers.  Access Economics predicts that a national high-speed broadband network would mean economy-wide productivity growth would be 1.1 per cent higher after ten years compared to if the network was not built.  Analysis by Access Economics in relation to a fibre-to-the-node (FTTN) network showed benefits of $8.6 billion to $23 billion over the first ten years (depending on the amount of spare capacity in the economy) and new jobs of 33,000 in 2011, before falling to 9,000 by 2018.  Access Economics has noted that a fibre-to-the-premises (FTTP) network ‘would involve both higher costs and greater benefits than the FTTN network’ (noting that its estimates of the cost of a FTTN network were $10-$20 billion). [1]

 

The Government is committed to rolling out the NBN as quickly as possible, within an overall eight year timeframe.  The Government has indicated it will privatise the NBN Company five years after the roll-out of the network is complete.

 

The NBN will operate as an open access wholesale-only network.  As such it will also bring about an important structural reform to the telecommunications sector that will boost competitive outcomes into the future.

 

The Government announced an Implementation Study will examine options for the operating arrangements, detailed network design, and ways to attract private sector investment for the roll-out.  The Implementation Study will commence shortly and is due to report back to the Government in early 2010.

 

Amongst other things, the Implementation Study will examine more closely the technology mix for the network, the deployment methodologies, the roll-out schedule and the costings.  To do this, it is important for the Implementation Study to have access to current and reliable information about existing telecommunications and utility assets it may use in the roll-out.  This includes information on the location and capacity of facilities such as trenches, conduits, pits, overhead distribution infrastructure, existing backhaul infrastructure and buildings and shelters.  Further examples of the types of information that might be sought are provided in the Telecommunications (National Broadband Network Designated Information) Determination 2008 (No. 1) .

 

Issue - Accessing Information to Support Planning for the NBN

 

To support the work of the Implementation Study and then, if appropriate, the roll-out of the network by the NBN Company, information about existing infrastructure that might be used in the NBN, such as ducts, pits and poles, is important, particularly if it is to achieve both its ambitious roll-out schedule and remain within budget.  The information can assist in minimising inconvenience and disruption during the construction phase. 

 

 

In a practical sense, such information can be used, for example, to:

·          confirm the most cost-effective technology to employ in a particular area;

·          confirm opportunities for infrastructure sharing;

·          identify the optimal deployment approach for a particular area;

·          determine where capacity supplementation may be required;

·          refine roll-out scheduling to reflect deployment methods;

·          prioritise particular areas for roll-out; and

·          potentially co-ordinate the installation of NBN infrastructure with existing infrastructure, particularly where it is buried.

 

In the absence of appropriate information, the Implementation Study (and the NBN Company) may have difficulty in making effective decisions in relation to these types of matters leading to consequent cost and timing problems.  This could impact on the operation of the NBN Company, the delivery of wholesale services to its customers and retail services for their customers.  As the NBN is envisaged to be Australia’s key broadband platform for the future, such negative consequences could be significant and problematic.

 

This information may be held by both telecommunications carriers and other utilities such as electricity, water, gas and transport providers.  Often utilities other than telecommunications carriers may have infrastructure, either for providing their own communications needs or the delivery of their core business, which may be of use in an NBN roll-out.  For example, overhead electricity distribution infrastructure is commonly used to carry telecommunications cabling.  In other jurisdictions, such as France, the United Kingdom and Taiwan, interest has been shown in using water, sewerage and drainage networks for telecommunications distribution.  This reflects the fact that civil works can constitute a very high proportion of the roll-out cost for a FTTP network. [2]   Information relevant to the civil costs of the network is very important to the overall roll-out cost and schedule.

 

Currently there are 176 licensed telecommunications carriers in Australia.  The Government envisages it may seek information from Telstra and around 10-15 other telecommunications carriers.  This is comparable to the number of carriers from whom network information was sought in 2008 [3]

 

Energy Networks Australia places the number of gas and electricity network companies at 23.  The Energy Supply Association of Australia has 43 full members including many of the network operators.  The Water Services Association of Australia has 33 members passing more than 50,000 premises, and 14 associate members.  Ten companies own or manage rail track in Australia, and there are eight state and territory road transport and traffic authorities. 

 

The Government could potentially seek information from all of these utilities, but the final number it may need to approach will depend on the needs of the Implementation Study and potentially the NBN Company.  It may well be that various deployment options are ruled out at an early stage for technical reasons and no information is sought.  For example, while there is interest in the use of water infrastructure to deploy fibre, it is not a technology commonly employed in Australia.

 

The Government also considers it is important, given the potential sensitivity of network information as it may relate to critical national infrastructure, to provide a strong, structured framework to protect the confidentiality and security of such information.

 

In considering options to respond to these issues, the Government is able to draw on its experience in seeking information in 2008 for its NBN Request for Proposals (RFP) process.  In that context the Government sought to obtain network information from telecommunications carriers on a voluntary basis with some success.  It also put in place an information gathering power in Part 27A of the Telecommunications Act 1997 .

 

As it stands, however, Part 27A does not allow the Commonwealth to:

·          require carriers to provide information to the Commonwealth after 26 May 2009;

·          collect information from organisations other than telecommunications carriers; or

·          disclose or use the collected information for any purpose other than in relation to the Request for Proposals process conducted in 2008.

 

2.         Objective

 

Consistent with the issues, the objective of Government action is to ensure:

·          the NBN process can access information it needs for the Implementation Study and, if appropriate, actual roll-out of the NBN by the NBN Company; and

·          such information as it is acquired is effectively protected. 

 

By doing this, the Government’s broader objectives are to facilitate the cost-effective and timely planning and roll-out of the NBN, in a manner that does not compromise the confidentiality and security of information about critical national infrastructure.

 

In addition to assessing options in terms of their ability to deliver quickly against these two key objectives, there are a number of other factors which need to be considered and which act as criteria for the assessment of the various options available to the Government. 

 

These additional factors against which the options also need to be assessed are:

·          their general intrusiveness relative to usual market operations;

·          their cost to stakeholders;

·          their administrative simplicity; and

·          their competitive neutrality.

 

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

 

Two alternative options (regulatory and non-regulatory) have been identified to address the issue of the Commonwealth obtaining information to support the Implementation Study and, if appropriate, the NBN roll-out generally. These are:

 

A.                 Request carriers and utilities to voluntarily provide information on a cooperative or commercial basis.

 

B.                  Request carriers and utilities to voluntarily provide information on a cooperative on a commercial basis, but enact legislation that could require carriers and utilities to provide information if they do not agree.

 

In relation to Option B the obvious starting place for any new legislation would be the existing information access regime in Part 27A of the Telecommunications Act 1997 .  The Government does not consider the information access regime in Part 4 of Schedule 1 of the Telecommunications Act is a suitable basis because, amongst other things, it only gives information access rights to carriers (and the Commonwealth is not a carrier for the purposes of the Implementation Study).

 

While a range of network information is available in the public domain or can even be derived by a survey of visible infrastructure, such approaches are not considered reliable or practical enough to constitute viable options for consideration.

 

Option A - Request carriers and utilities to voluntarily provide information on a cooperative or commercial basis

 

Option A would involve the Commonwealth requesting carriers and utilities to provide the relevant network information that could be used for the Implementation Study on a cooperative or commercial basis.  Similarly, the NBN Company could seek information on a cooperative or commercial basis from carriers and utilities.  The willingness of carriers and other utilities to provide information might be strengthened through educational activities to inform them of the importance of the NBN process and the commercial opportunities it may offer them.  Any information obtained via these processes would be subject to such confidentiality and security arrangements as would be agreed through negotiations.

 

This option represents the base case as it would reflect what action could occur if no new legislation is established.

 

Option B - Request carriers and utilities to voluntarily provide information on a cooperative on a commercial basis, but enact legislation that could require carriers and utilities to provide information if they do not agree.

 

Both the Implementation Study and the NBN company would be able to seek information on a cooperative or commercial basis under this model.  If important information were not provided, however, the Government would be able to require the provision of the information under an amended Part 27A.  The NBN company would not be able to seek information using the legislation, but it would be dependent on the Commonwealth providing access following due consideration.  The legislation would include a strong and structured framework for controlling the handling, storage and disposal of information.  This information protection framework would apply to information provided both voluntarily to the Commonwealth and under the legislation.

 



4.         Impact assessment

 

This section discusses the advantages and disadvantages of the two options identified above in terms of the criteria discussed in section 2 and their impact on stakeholders, namely:

·          carriers and utilities, and their shareholders, as potential information providers;

·          the Commonwealth as the proponent of the NBN, an information user, administrator of any information access regime and a protector of sensitive information;

·          the NBN Company as the builder of the NBN; and

·          consumers as ultimate users and beneficiaries of telecommunications services.

 

As opening observations, a number of factors should be taken to be givens.

 

Costs

 

Any process by which carriers and utilities provide information to the Commonwealth will involve costs, particularly in extracting, collating, checking and dispatching information.  In almost all instances these costs are mitigated in that the types of information to be sought will almost certainly be held by the organisations concerned for their own business needs and should be readily accessible.  For example, the Department of Broadband, Communications and the Digital Economy (DBCDE) understands that such utilities generally maintain electronic inventory and/or geographic information systems (GIS) to hold such information and these are able to be readily interrogated.  For the telecommunications industry, this was readily demonstrated in 2008 when information was collected to support the NBN RFP process.  Cost can be further mitigated by the Commonwealth being flexible as to the level of detail required and the format in which it accepts information. 

 

Costs can also be mitigated to the extent that carriers and utilities are able to satisfy information requests with information generated for other reporting processes.  For example, many telecommunication carriers are already required to report annually to the Australian Competition and Consumer Commission on certain telecommunications infrastructure of potential interest to the Implementation Study and the NBN Company (e.g. backhaul).

 

The cost of providing information will depend on the systems organisations already have in place and the amount and detail of the information sought from them.  Given its place in the market and its extensive network, more information is expected to be sought from Telstra.  Less information would be sought from smaller telecommunications carriers.  Again, some indication of the level of information to be sought from telecommunications carriers can be had from the Telecommunications (National Broadband Network Designated Information) Determination 2008 (No. 1) under which information was sought for the 2008 NBN RFP process.

 

While the provision of information will involve some cost to providers, it is worth noting that the cost of the provision of information was not raised as a significant issue during consultations on the Telecommunications Legislation Amendment (National Broadband Network) Bill 2008 that established the information access regime in Part 27A of the Telecommunications Act 1997 [4] .  It is also the case that much of the information generated for the 2008 NBN RFP process may be of use to the new process, possibly reducing costs for carriers.  This observation cannot, however, be applied to other utilities as they were not covered by that regime.

 

It is very difficult to make a blanket statement about the compliance cost of this measure, given that the cost for individual organisations will be impacted by the way in which the carriers and utilities collect and store information, variability in requests and the form in which the information is sought.  For smaller organisations, the costs could be lower.  For larger organisations, with more infrastructure, the average cost could be higher. This would almost be certainly true for Telstra because of the volume of relevant information it holds.

 

The Department expects its administration costs would be no more than $100,000 in the first year, including staffing. The stricter the requirements are for the protection of the confidentiality or security, the greater the costs for the Commonwealth and the NBN Company that will be involved.  However, it should be assumed a high level of security will be required under all options.  The Department expects its security requirements could be met under existing processes.

 

When compared against the proposed investment of up to $43 billion in the NBN, the expected economic benefits, the Government's stated intention to privatise the NBN in the long term and the implications for all these outcomes if access to necessary information is not available, the benefits of being able the obtain such information clearly exceed the expected costs of providing.

 

Competitive neutrality

 

In relation to competitive neutrality it is recognised that any framework that compels the provision of information from one commercial entity to another, particularly where they may compete in some way, raises issues of competitive neutrality.  However, where such considerations arise, they must be balanced against the larger public policy objectives of the Government’s NBN policy, which, in the longer term, delivers benefits to consumers and the economy generally that will outweigh any competition concerns arising from accessing the information.

 

Reticence to provide information

 

While stakeholders have indicated considerable support for the Government’s NBN announcement and many may be prepared to provide information cooperatively or commercially, there is also a real risk that other holders of information may not.  The main reason for this is that the NBN may compete with them in large or small part, meaning it may not be in their commercial interests to cooperate.  This may be particularly true of carriers operating broadband infrastructure.  Other information holders may be concerned about the NBN complicating their core business operations, by seeking to use their infrastructure.  Other information holders may seek to extract an excessive commercial return for any information provided.

 

Need for regulatory flexibility

 

Given the need in any framework relating to access to information for flexibility and the ability to specify detail, it is likely that any framework involving legislation with have a degree of complexity, even though simplicity is a design preference.

 

Option A - Request carriers and utilities to provide information on a cooperative or commercial basis

 

Advantages:

·          If carriers and utilities cooperate, it potentially provides a timely means for making the necessary information available to the Implementation Study and, potentially, the NBN Company.

·          The NBN Company is free to seek information on its own behalf.

·          Agreements could provide reasonable confidentiality and security arrangements but this is uncertain and there could be variability in arrangements.

·          The provision of information would be a commercial judgement for the information providers, that is, it would not intrude on the rights of the entities concerned or their shareholders.

·          Any impact on competitive neutrality would be minimal.

·          Option A would avoid the costs associated with the preparation and implementation of new legislation.

·          The costs to carriers and utilities would be at their discretion.

·          The approach would be administratively simple in that there would be no legislative framework but management of multiple agreements would be resource intensive.

 

Disadvantages:

·          There is the potential that negotiations will not result in the carriers and utilities agreeing to make information available, affecting planning and roll-out of the NBN, with implications for consumers.

·          Negotiation with carriers and utilities regarding the provision of information has the risk of being protracted. Protracted negotiations may delay the Implementation Study, which would in turn delay the roll-out of the NBN.

·          As noted above, carriers and utilities may have a range of strategic, competitive and financial reasons for not wanting to provide information voluntarily

·          The confidentiality and security of the network information would be dependent on the agreements put in place and might not be standardised.

·          Separate negotiations for the provision of information with multiple carriers and utilities would be required, leading to costs and delays for the Implementation Study and the roll-out of the NBN.

·          Carriers and utilities as well as the Commonwealth would face the costs involved in negotiations, including the development of satisfactory confidentiality agreements.

·          As with all options, information providers will face costs in compiling and providing information, but as discussed in section 2 above these are not considered onerous.

 

Option B - Request carriers and utilities to voluntarily provide information on a cooperative on a commercial basis, but enact legislation that could require carriers and utilities to provide information if they do not agree.

 

Advantages:

·          Option B provides scope to obtain information on a less intrusive basis where information providers agree to cooperate, with the safety of being able to require information if it is being unreasonably withheld.

·          As noted above, carriers and utilities may have a range of strategic, competitive and financial reasons for not wanting to provide information voluntarily

·          Where carriers and utilities cooperate, it potentially provides a timely means for making the necessary information available to the Implementation Study and, potentially, the NBN Company.

·          Where cooperative and commercial negotiations are unsuccessful, carriers and utilities can be required to provide information without causing significant delay.

·          The confidentiality and security of the information would be protected by a consistent statutory framework.

·          A simple consistent regulatory approach is expected to be less costly for all parties than multiple commercial negotiations.

·          A simple consistent regulatory approach is expected to be relatively simple for all parties to administer.

 

Disadvantages:

·          While seemingly less intrusive, carriers or utilities may argue the Commonwealth’s ability to require information merely makes cooperation more attractive.

·          Carriers or utilities may challenge operation of any legislation, potentially delaying the Implementation Study, and thus the roll-out of the NBN to the detriment of consumers.  (It should be noted, however, that the current Part 27A was not challenged by carriers when it was enacted in 2008.)

·          The carriers or utilities may seek compensation for the compulsory acquisition of property (i.e. their network information).  The Department’s view is that the risk of such a liability arising is low.

·          In cases where it could not obtain information cooperatively or commercially, the NBN Company would primarily be dependent on the Commonwealth for its information and subject to its confidentiality and security rules, potentially inhibiting its operational flexibility.

·          To the extent information is provided to the NBN Company, this could raise competitive neutrality issues, but this would depend on further consideration and be countered by the benefits from the roll-out of the NBN.

·          As with all options, information providers will face cost compiling and providing information, but as discussed in section 2 above these are not considered onerous.

 

5.         Consultation

 

The issue of the Government improving access to network information to assist with the roll-out of the NBN was flagged in the discussion paper, National Broadband Network : Regulatory Reform for 21st Century Broadband, released on 7 April 2009 (p.10).

 

However, stakeholder consultation has not been undertaken because:

·          the telecommunications industry had the opportunity to comment on a similar information access issues when Part 27A was established in 2008; and

·          it was necessary to quickly put in place an effective approach to support the new NBN process.

 

Moreover, if legislation is not forthcoming, there will be no change to current arrangements.  If legislation is implemented, it would be introduced late in the Winter sittings and be open to public scrutiny over the Winter recess.  Moreover, any such legislation will largely establish a head of power which will have to be fully activated.  For legislation of the kind envisaged to be fully activated, suitable legislative instruments would need to be developed.  It is intended that stakeholder consultations occur prior to any such instrument being made.

 

In consultations on Part 27A in 2008, the Government wrote to 24 telecommunications carriers.  These telecommunications carriers expressed a range of views.  Many carriers indicated a willingness to provide information voluntarily and some did so, albeit in the context of the competitive NBN RFP process.  A smaller number of carriers were opposed to providing information either voluntarily or under law, citing concerns about commercial sensitivity.  A number of carriers were concerned by the potential scope of information to be sought.  The cost of providing the information was not raised as a significant issue. [5]

 

The Department expects from its general interaction with carriers (including during the 2008 NBN RFP process) and other potential information providers that while many are generally supportive of the NBN initiative they would prefer to provide information on a cooperative or commercial basis.  Many industry players have openly welcomed the Government’s NBN announcement.  They are expected to object to being required to provide information and may seek payment.  To the extent they need to provide information, they are expected to welcome a strong, statutory framework that protects the confidentiality and security or their information.  Carrier and utilities are likely to express additional concern if their information is to be provided to the NBN Company itself if they are competitors to it.

 

Commonwealth officers working on the NBN Implementation Study and with the NBN Company have indicated they consider the ability to access network information is important to the planning and, potentially, roll-out of the NBN.

 

Within the Commonwealth, the Department has consulted with the Department of the Prime Minister and Cabinet, the Treasury, the Attorney-General’s Department, the Department of the Environment, Water, Heritage and the Arts, the Department of Infrastructure, Transport, Regional Development and Local Government, the Department of Resources, Energy and Tourism and the Office of the Federal Privacy Commissioner on a number of issues. 

 

The main issues raised in these consultations were:

·          likely industry concerns about the intrusiveness of a legislative approach;

·          the utility of a cooperative and commercial approach;

·          the need to consider further the provision of information to the NBN Company, from a competitive neutrality perspective;

·          the need to protect the confidentiality and security of information collected; and

·          the benefits of consulting further with potential information providers.

 

6.         Conclusion

 

As noted above, when compared with the proposed investment of up to $43 billion in the NBN, the expected economic benefits, the Government's stated intention to privatise the NBN in the long term and the implications for all these outcomes if access to necessary information is not available, the benefits of being able the obtain such information clearly exceeds the expected costs of providing such information.

 

Any potential detriment to carriers and utilities if required to provide the information is outweighed by the national importance of the NBN to be planned and rolled out as efficiently as possible so that the economic and social outcomes that the NBN will facilitate are maximised.  As identified above, the cost of making this information available is not considered onerous.

 

Option B, which provides for information to be sought from carriers and utilities on a cooperative or commercial basis, backed up by a legislated information access regime based on Part 27A, is the best option overall for meeting the Government’s objectives in regard to network information for the new NBN process.  The approach would facilitate the provision of necessary information and provide a statutory framework for protecting the confidentiality and security of network information.  The provision of network information to the NBN Company would be subject to a further decision by the Minister, thereby allowing any competitive neutrality issues to be considered further.

 

This approach provides stakeholders with the option of a non-intrusive, cooperative approach to the provision of network information, with that information being subject to an appropriate confidentiality and security protections. In the event that network information is not provided on a cooperative or commercial basis, Option B will enable the Commonwealth to require relevant network information be provided.  While the use of subordinate legislation will be administratively complex, it is expected to be less complex than an approach based solely on negotiations with information providers who may not wish to cooperate.

 

Option A is not considered feasible because it may lead to important information not being available to the Implementation Study or, potentially, the NBN Company.  This could significantly compromise the planning and roll-out of the NBN.

 



7.         Implementation and review of the preferred option

 

Option B will be implemented by amending Part 27A of the Telecommunications Act 1997 to enable the Minister to request carriers and utilities to provide information to the Commonwealth for use in the NBN Implementation Study, and subject to further approval, by the NBN Company.  Full details of the amendments are set out in the Explanatory Memorandum to the Bill.

 

In practice, it is envisaged the NBN Implementation Study will seek to obtain necessary information from carriers and utilities on a cooperative or commercial basis.  If it becomes clear that this is not going to be successful within a reasonable timeframe, resort can be had to the legislated process provided for under the amended Part 27A.  If information is sought under Part 27A, subordinate legislation will need to be prepared.  This will be subject to stakeholder consultation.

 

The provision of network information to the NBN Company will be subject to further Government consideration in light of the findings of the Implementation Study.

 

Operation of the proposed information access framework will otherwise be subject to ongoing review.

 

The proposed provisions under which information will have to be provided upon request for the Implementation Study will be subject to a sunset date of 30 June 2010 on the basis the Implementation Study is scheduled to be complete in early 2010.

 

The proposed provisions under which information will have to be provided upon request for use by the NBN Company, if it is decided to follow this course, will be subject to a sunset date of 10 years from the commencement of the provisions of the Bill.



ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

the Act: Telecommunications Act 1997

 

AIA: Acts Interpretation Act 1901

 

the Bill: Telecommunications Legislation Amendment (National Broadband Network Measures No. 1) Bill 2009

 

LIA: Legislative Instruments Act 2003

 

Minister: Minister for Broadband, Communications and the Digital Economy

 

NBN: National Broadband Network



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 Measures No. 1) Act 2009 .

 

Clause 2 - Commencement

 

Clause 2 of the Bill provides for the commencement of this Bill.

 

Clauses 1-3 of the Bill would commence on the day on which the Bill receives the Royal Assent.

 

Schedule 1 would 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

 

Schedule 1 makes numerous amendments to Part 27A of the Act.  Part 27A (which was inserted into the Act in 2008 by the Telecommunications Legislation Amendment (National Broadband Network) Act 2008 ) deals with information relating to a broadband telecommunications network.  Part 27A at present required carriers to give information to an authorised information officer, and imposes restrictions on the disclosure and use of that information.  Schedule 1 also makes a number of consequential amendments to other provisions in the Act.

 

Telecommunications Act 1997

 

Item 1 - Section 7

 

Item 1 would amend section 7 of the Act to insert a definition of ‘broadband telecommunications network’ into the Act. This term is defined to mean a telecommunications network that is capable of carrying communications on a broadband basis.  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 of the Act also provides a definition of ‘communications’ .

 

The term ‘broadband telecommunications network’ is used in proposed subsection 531C(1A) (see item 19): information specified by the Minister in an instrument made under subsection 531C(1) (as amended by item 18) that must be provided by carriers and utilities to an authorised information officer must be information about things that could be used for, or in connection with, the creation or development of a broadband telecommunications network, or the supply of carriage services over this type of network, or a matter ancillary or incidental to those topics.  The term is also used in Division 3 of Part 27A as amended by this Bill, in the context of the permitted exceptions to the prohibition on disclosure and use of the information.  Protected network information is only permitted to be disclosed or used for purposes related to a broadband telecommunications network (see for example proposed paragraph 531G(2)(b), inserted by item 27, and proposed paragraph 531G(3A)(b), inserted by item 32).

 

‘On a broadband basis’ in Australia is generally understood to be a speed of 256 kilobits per second or more.  The National Broadband Network will provide broadband services with speeds of up to 100 megabits per second for premises connected with fibre and 12 megabits per second for premises connected by next generation wireless or satellite services.  

 

Item 2 - Section 7 (after paragraph (h) of the definition of civil penalty provision )

 

Item 2 would amend the definition of ‘civil penalty provision’ in section 7 of the Act to provide that proposed subsections 531F(2) and (3) (see item 25) would be civil penalty provisions for the purposes of the Act. 

 

These provisions are contained in proposed Division 2 of Part 27A which obliges carriers and utilities to give certain information to an authorised information officer.  Specifically, subsection 531F(2) obliges a carrier or utility to give specified information to an authorised information officer in the approved manner and the approved form and within the approved period and subsection 531F(3) prohibits a person from aiding, abetting, counselling, procuring, inducing, being involved in, or conspiring to effect, a contravention of subsection 531F(2). 

 

Part 31 of the Act deals with pecuniary penalties for breaches of civil penalty provisions.  Contravention of a civil penalty provision by a carrier could result in the imposition of a pecuniary penalty by the Federal Court of up to $10 million (see section 570 of the Act).  Contravention by a body corporate other than a carrier could result in the imposition of a pecuniary penalty up to $250,000 for each contravention.  Contravention by a person other than a body corporate other than a carrier could result in the imposition of a pecuniary penalty up to $50,000 for each contravention. 

 

Item 3 - Section 7

 

Item 3 would include in section 7 of the Act a reference to ‘designated broadband company’, which is a term defined in proposed section 531BA (see item 17).

 

Item 4 - Section 7  (definition of designated request for proposal notice )

 

Item 4 would repeal the current definition of ‘designated request for proposal notice’.  This definition, which is used in section 531D (which would be repealed by item 24), is redundant as the NBN Request for Proposals process has now been terminated.

 

Item 5 - Section 7

 

Item 5 would amend section 7 of the Act to insert a definition of ‘NBN Company’ into the Act.  The Government has announced the establishment of a new company to build and operate a new superfast National Broadband Network. The term ‘NBN Company’ would be defined to mean A.C.N. 136 533 741 Limited.  A.C.N. 136 533 741 Limited is the current name of the company that has been established by the Commonwealth to build and operate the network.  The company has been given its Australian Company Number as its name in the short term, but it can be expected that this name will change.  For this reason the definition of ‘NBN Company’ flags the potential for a change in name of the company, and provides that the NBN Company is the company that is known by that name, as the company exists from time to time, even if its name is later changed.

 

Under Division 3 of Part 27A as amended by this Bill, protected network information would be able to be disclosed to an entrusted company officer of the NBN Company for certain purposes related to a broadband telecommunications network (see proposed section 531H, included in the Act by item 39).

 

Item 6 - Section 7 (definition of protected carrier information )

Item 7 - Section 7

 

Items 6 and 7 would amend section 7 of the Act to repeal the definition of ‘protected carrier information’ and include the definition of ‘protected network information’ into the Act.  Item 7 would provide that the new term has the same meaning as in the section 531B, as proposed to be amended by item 15.

 

Item 8 - Section 7

 

Item 8 would list the term ‘utility’ in section 7 of the Act.  The term would be defined by section 531B of the Act, as proposed to be amended by item 16.

 

Item 9 - Section 531A

 

Item 9 repeals the current section 531A, which provides an outline of the operation of Part 27A of the Act, and inserts proposed section 531A in its place.

 

Proposed section 531A - Simplified outline

 

Proposed section 531A provides a short summary of the effect of the main provisions in the revised Part 27A.

 

Item 10 - Section 531B (subparagraph (c)(ii) of the definition of authorised information officer )

 

Item 10 would amend subparagraph 531B(c)(ii) of the Act by changing the definition of ‘authorised information officer’.  The authorised information officer is the person to whom information must be provided by affected carriers (and, under the new provisions included by this Bill, utilities).  Under Part 27A as it is currently drafted, an authorised information officer means the Secretary of the Department, a Deputy Secretary of the Department, a person for whom an appointment as authorised information officer is in force under section 531M, or an individual who is a Senior Executive Service (SES) employee in the Department, and whose duties relate to the National Broadband Network Task Force.  The National Broadband Network Task Force in the Department of Broadband, Communications and the Digital Economy dealt with the NBN Request for Proposals process.  The Request for Proposals process has been terminated and as a result the Task Force no longer exists within the Department.  To take account of these changes, this amendment replaces the reference to ‘National Broadband Network Task Force’ in the definition of ‘authorised information officer’ with a reference to ‘Implementation Study for the National Broadband Network’.  The effect of this amendment would be that an individual who is an SES officer in the Department and whose duties relate to the Implementation Study for the National Broadband Network would be an authorised information officer.

 

Item 11 - Subsection 531B (paragraph (v) of the definition of entrusted company officer )

Item 12 - Subsection 531B (after paragraph (v) of the definition of entrusted company officer )

 

Items 11 and 12 would amend the definition of ‘entrusted company officer’ in section 531B of the Act.  Under section 531H of the Act (as amended by item 39), an authorised information officer may disclose protected network information to an entrusted company officer of the NBN Company or of a designated broadband company (which is a term defined in proposed section 531BA, see item 17).

 

Item 12 amends the definition of ‘entrusted company officer’ to include a new paragraph (w) in that definition.  The effect of that paragraph is that the entrusted company officers of the NBN Company would include employees or directors of any company that has a contract with the NBN Company under which the first company sells something to the NBN Company that will become part of a facility in relation to the NBN Company’s broadband telecommunications network.  The same applies for entrusted company officers of designated broadband companies.

 

This provision is intended to ensure that equipment vendors involved in the roll-out of a broadband telecommunications network by the NBN Company or a designated broadband company are able to receive protected network information if appropriate. 

 

Section 531H (as amended by item 39) permits the Minister, by making a legislative instrument, to place conditions on the disclosure of protected network information to an entrusted company officer of the NBN Company or of a designated broadband company.  The Minister may also impose restrictions on which entrusted company officers may receive protected network information by making restricted recipient rules under section 531N.  These measures provide scope for the Minister to impose further restrictions on the disclosure of information to equipment vendors if that is appropriate.

 

Item 11 makes a minor amendment necessary as a result of the inclusion of paragraph (w) of the definition of ‘entrusted company officer’ by item 12.

 

Item 13 - Section 531B (definition of matter preparatory to the publication of a designated request for proposal notice )

 

Item 13 amends section 531B of the Act by repealing the definition of ‘matter preparatory to the publication of a designated request for proposal notice’. The definition is now redundant as the NBN Request for Proposals process has been terminated.  This Bill removes all references to the NBN Request for Proposals from Part 27A, as those provisions are no longer required.

 

Item 14 - Section 531B (definition of protected carrier information )

 

Item 14 repeals the definition of ‘protected carrier information’ from section 531B of the Act.  This definition is no longer required, as a result of the amendment made by item 15.

 

Item 15 - Section 531B



Item 15 amends section 531B of the Act by inserting a definition of ‘protected network information’.  The definition of ‘protected network information’ is modelled on the definition of ‘protected carrier information’ that is repealed by item 14.  The main change is that ‘protected network information’ includes information that is provided by ‘utilities’ (see item 16), whereas ‘protected carrier information’ was restricted to information provided by telecommunications carriers.

 

The change to the new term reflects one of the key changes being made to Part 27A by this Bill: utilities that are not telecommunications carriers may now be required to provide network information in accordance with Division 2 of Part 27A of the Act, as amended by item 25.

 

The Discussion Paper National Broadband Network : Regulatory Reform for 21st Century Broadband , included a statement that the Government is seeking to reduce the cost of deploying fibre optic networks by, among other matters, “improving access to information about the location and availability of poles, ducts and pipes”.  Infrastructure that might assist with the NBN roll-out may be owned by utilities (for example, electricity poles or underground trenches may be owned by the local electricity supplier).  If utilities were excluded from the legislation, there is a risk that information about this infrastructure may not be provided to the Government.

 

The definition of the term ‘protected network information’ includes any information that is given to an authorised information officer under proposed section 531F (inserted by item 25) after the commencement of the definition (see paragraph (c) of the definition).  Section 531F imposes the obligation on carriers and utilities to provide network information if an instrument is made by the Minister under section 531C.

 

The definition also includes any information that is provided voluntarily by a carrier or a utility to an authorised information officer, where the authorised information officer has given certain written undertakings to the carrier or utility involved.  That is, it includes certain information that is provided to an authorised information officer by a carrier or utility even where there is no instrument made under section 531C and there is no requirement for the carrier or utility to provide the information.  Information that is provided during the period beginning on 7 April 2009 (which was the date of the Government’s announcement of the establishment of a company to roll-out the NBN) and ending 10 years after the commencement of the definition, will be protected network information, if the authorised information officer gives an undertaking that the information will be treated as protected network information, and—if the information is provided prior to the definition of ‘protected network information’ commencing—that it will not be disclosed before the commencement of that definition (see paragraphs (a) and (b) of the definition).

 

In addition, the definition of ‘protected network information’ includes any information that is disclosed in accordance with exceptions to the general prohibition on disclosure and use of protected network information, as permitted by particular provisions of Division 3 of Part 27A of the Act (see paragraph (d) of the definition).  This makes it clear that the limitations on the use and disclosure of protected network information imposed by Division 3 apply to all those who receive the information in accordance with the operation of that Division.

 

Lastly, the definition of the term ‘protected network information’ also includes any information that was ‘protected carrier information’ within the meaning of Part 27A as it was in force immediately before the commencement of the definition of that term (paragraph (e) of the definition).  This means that all information that was protected carrier information prior to the changes made to Part 27A by this Bill will be protected network information after the commencement of this definition.  From the date of commencement, Part 27A as amended by this Bill, will therefore operate with respect to information that has been obtained from carriers prior to this Bill’s commencement (whether it was obtained voluntarily or in accordance with the requirements of an instrument under section 531C).

 

Item 16  - Section 531B

 

Item 16 amends section 531B of the Act to insert a definition of ‘utility’ into the Act.

 

To support the roll-out of the NBN, information will be needed about the location and capacity of infrastructure such as poles, ducts, and pipes that might be used to roll-out the NBN.  It is likely such infrastructure is owned by utilities such as electricity, gas, water and transport companies.  Failure to capture these organisations in the legislation might mean information that could support the roll-out of the NBN might not otherwise be provided.

 

The definition of ‘utility’ that would be inserted into section 531B by item 16 is modeled on the definition of ‘public utility’ in clause 1 of Schedule 3 to the Act, and includes a person that provides reticulated products or services (electricity, gas, water, drainage), carriage services (other than carriage services provided by a carriage service provider (see section 87 of the Act)), transport services, or a similar product or service.

 

A ‘utility’ would also include a person who owns any structure or thing used in connection with the supply of those services to the public.  This aspect of the definition is necessary because the relevant information may be held by infrastructure owners rather than service providers using the network.

 

Access to this information may assist in expediting the NBN roll-out in many areas, for example, running backhaul cable along rail routes or providing services to individual premises.  Access to information about ducts or underground networks will be especially important.

 

Item 17 - After section 531B

 

Item 17 amends the Act to include proposed section 531BA, which would define the term ‘designated broadband company’.

 

Proposed section 531BA - Designated broadband company

 

The Government has announced the establishment of a new company to build and operate a new superfast National Broadband Network.  As noted above, that company is the NBN Company (which is defined in section 7 of the Act, as a result of item 5).

 

However, it is possible that other companies may also be established as part of the process of rolling-out the National Broadband Network, in particular as subsidiaries of the NBN Company. 

 

Given the early stage of the NBN planning and roll-out process at which this Bill is being introduced, to enable flexibility in the corporate and legal structures involved in the NBN roll-out, it is proposed that Part 27A include the concept of a ‘designated broadband company’.

 

Under section 531H of the Act (as amended by item 39), an authorised information officer would be permitted to disclose protected network information to an entrusted company officer of the NBN Company or of a ‘designated broadband company’.  The definition of that term would be included in Part 27A at proposed section 531BA.

 

Proposed subsection 531BA(1) would provide that the Minister could specify a company to be a designated broadband company in a legislative instrument.  A company may only be specified as a designated broadband company if, at the time the Minister makes the instrument specifying it, the company is fully or part-owned by the Commonwealth, the NBN Company, or a company that in turn is fully or part-owned by the Commonwealth or the NBN Company (proposed subsection 531BA(2)).  The intention of this is to place appropriate restrictions on the types of company that can receive protected network information under Part 27A, while not hindering the corporate structures involved in the NBN roll-out.  While any other companies that may be involved in the NBN roll-out must have the necessary ownership arrangements in place at the time the Minister makes an instrument, the legislation does not place any ongoing ownership requirements on designated broadband companies, in recognition of the fact that ownership arrangements may change over the course of the roll-out period.

 

Proposed subsection 531BA(3) clarifies that for the purposes of this section, shares in a company held by the Future Fund Board of Guardians are taken not to be held by the Commonwealth.

 

Item 18 - Paragraphs 531C(1)(a),(b),(c) and (d)

 

Section 531C currently enables the Minister, by written instrument, to determine (among other things) 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). 

 

One of the key amendments made to Part 27A by this Bill is to permit information that is potentially relevant to the roll-out of a broadband telecommunications network to be sought not only from carriers, but also from utilities (see items 15 and 16).

 

Item 18 thereforeamends paragraphs 531C(1)(a),(b),(c) and (d) of the Act to include the words ‘or utility’ after the word ‘carrier’ in those sections. This amendment is consequential to the amendment made by item 16.

 

As a result of these amendments, subsection 531C(1) would provide that the Minister may, by written instrument, determine that:

-           specified information is ‘designated information’ for the purposes of the application of the Act to a specified carrier or utility, or a specified class of carriers or utilities;

-           a specified manner is the approved manner, and a specified form is the approved form, in which a specified carrier/utility or class of carriers/utilities is required to provide designated information to an authorised information officer; and

-           a specified number of business days (not less than 10) is the approved period within which that information must be provided (see proposed section 531F, inserted by item 25).

 

It is intended that, if the Minister were to make an instrument that applies to utilities, then the Minister would provide a copy of that instrument to the relevant portfolio Minister for information.  For example, if the Minister makes an instrument that would require electricity providers to provide network information to an authorised information officer, it is intended that the Minister would provide a copy of that instrument to the Minister for Resources and Energy.

 

Item 19 - After subsection 531C(1)

 

Proposed subsections 531C(1A) and (1B), inserted by item 19, would limit the types of information that could be specified by the Minister in an instrument made under subsection 531C(1).  Proposed subsection 531C(1A) would require that information specified must be information about one or more existing or proposed things that could be used for, or in connection with, the creation or development of a broadband telecommunications network, the supply of carriage services using such a network, or a matter incidental or ancillary to those topics.

 

Facilities (which are defined in section 7 of the Act) are taken to be things that could be used for, or in connection with, a broadband telecommunications network (proposed subsection 531C(1B)).

 

Although utilities as well as carriers may be required to provide information under the amendments proposed to be made by the Bill to section 531C and other provisions in Part 27A, these provisions will clarify that only information about infrastructure that is potentially relevant to a broadband telecommunications network is able to be specified by the Minister in an instrument under subsection 531C(1).  The requirement in proposed subsection 531C(1A) for information to be about ‘one or more existing or proposed things that could be used for or in connection with’ a broadband telecommunications network is intended to limit the types of information that could be specified in an instrument made under paragraph 531C(1)(a) (as amended by item 18).  Only information that relates to infrastructure (existing or proposed) that could be used in relation to a broadband telecommunications network is permitted to be specified.  This limits the types of information that carriers and utilities can be required to provide, and makes it clear that the purpose of seeking information from carriers and utilities is limited to matters connected to a broadband telecommunications network.

 

It is intended that the Minister would be able to specify in an instrument made under subsection 531C(1) (as amended) a wide range of types of information that are about things that could be used for, or in connection with, a broadband telecommunications network.  By way of example, it is envisaged that information about the location, and where appropriate the capacity to accommodate fibre, of the following types of infrastructure could be prescribed in an instrument made under subsection 531C(1) as information that is required to be provided:

-           trenches (filled, part filled and unfilled);

-           underground ducts;

-           conduit;

-           points of interconnection between the distribution customer access network, the main network, and the core transmission network;

-           backhaul transmission routes;

-           possible locations for wireless towers or space on existing towers for provision of wireless services in areas where next generation wireless networks may be used to service premises beyond the reach of fibre; and

-           (in the case of relevant utilities) sewage pipes, stormwater drains and electricity poles and other overhead facilities.

 

As noted, the Minister would also be able to determine in an instrument made under subsection 531C(1) (as amended) the manner and the form in which a specified carrier/utility or a specified class of carriers/utilities is to give the designated information, and the approved period for providing the information, which must not be less than 10 business days.  It is not intended that the Minister’s instrument would specify information held by carriers or utilities that is personal information of customers. 

 

The commencement of an instrument made under proposed subsection 531C(1) (as amended) would trigger an obligation (see proposed section 531F, inserted by item 19) on a specified carrier/utility or a carrier/utility falling within a specified class of carriers/utilities 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 network information’ for the purposes of Division 3 of Part 27A (see item 15).

 

Item 20 - Subsection 531C(3)

 

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 section 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)) if section 51 of the Constitution extended to the Territories.  The effect of this provision was to 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.

 

This limitation is no longer required, since as a result of the inclusion of subsection 531C(1A) by item 19, the information to be included in an instrument must be about things that could be used for, or in connection with, a broadband telecommunications network.  Consequently, subsection 531C(3) would be repealed by item 20.

 

Item 21 - Subsection 531C(4)

Item 22 - Subparagraph 531(C)(4)(a)(ii)

Item 23 - Paragraph 531C(4)(b)

 

Subsection 531C(4) currently sets out a specific consultation procedure that applies to the making of an instrument under subsection 531C(1) (as amended).  This procedure currently provides for a consultation period of three business days on a draft instrument.  The consultation period gives affected carriers an opportunity to provide comments in relation to the draft instrument.  The consultation procedure in subsection 531C(4) is intended to displace any common law obligations that may apply in relation to the making of the instrument.

 

Item 21 amends subsection 531C(4) to extend the consultation requirement to affected utilities, by including the words ‘or utility’ after the word ‘carrier’.  This amendment is consequential to the amendment made by items 15 and 16.  



Amendments proposed by items 22 and 23 would extend the consultation period for draft instruments from three business days to five business days.

 

The effect of these changes is to require that affected carriers and utilities are provided with a copy of a relevant draft instrument and are given five business days to comment on the draft instrument, and to require the Minister to consider any comments provided by those carriers/utilities within that period.

 

Item 24 - Sections 531D and 531E

 

Sections 531D and 531E provide definitions for a ‘designated request for proposal notice’ and ‘action by the Commonwealth’, respectively.  As those concepts related to the NBN Request for Proposals process which has now been terminated and have no ongoing relevance, item 24 would repeal those sections.

 

Item 25   - Division 2 of Part 27A

 

Item 25 would insert a new Division 2 of Part 27A and with it proposed section 531F which would impose a requirement on carriers and utilities to give information to an authorised information officer.

 

Proposed Division 2—Carriers and utilities must give information to an authorised information officer

 

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

 

Section 531F of the Act currently applies to a carrier if an instrument made under subsection 531C(1) has commenced and the instrument specifies particular information to be designated information for the purposes of the application of Part 27A to that carrier.  The carrier is then 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 must be provided in the manner and form specified in the Minister’s instrument. 

 

Subsection 531F(3) of the Act currently provides that subsections 531F(1) and 531F(2) cease to have effect 12 months after the commencement of subsection 531F(3).

The purpose of this clause was to ensure that designated information would be required to be provided during the period in which the competitive assessment process for the National Broadband Network was expected to be conducted, while making it clear that section 531F was not intended to effect an ongoing obligation to provide information.

 

Since section 531F, and Division 2 of Part 27A in which it appears, are currently expressed to apply only to carriers, item 25 of the Bill would repeal the existing Division 2 and replace it with proposed Division 2—which addresses both carriers and utilities (see item 16)—and proposed section 531F.

 

Proposed section 531F very closely reflects the drafting of the provision it replaces.  Proposed section 531F would apply to a carrier or a utility if an instrument made under subsection 531C(1) has come into force and specifies particular information to be designated information for the purposes of the application of Part 27A to that carrier or utility.  In such circumstances, the carrier or utility would be obliged under subsection 531F(2) to provide the specified information to an authorised information officer within the approved period after the instrument comes into effect.  The information would need to be provided in the manner and form specified in the Minister’s instrument.

 

In addition, proposed subsection 531F(3) would provide that certain activities must not be undertaken by other persons who are not themselves subject to the requirement under proposed subsection 531F(2), such as aiding, abetting and procuring a contravention of the requirement by a carrier or utility.

 

Proposed subsection 531F(4) would provide that the requirement in proposed subsection 531F(2) to provide the information, and the requirement in proposed subsection 531F(3) not to undertake certain activities with respect to a contravention of proposed subsection 531F(2), would be civil penalty provisions.  This 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 a carrier could result in the imposition of a pecuniary penalty by the Federal Court of up to $10 million (see section 570 of the Act).  Contravention by a body corporate other than a carrier could result in the imposition of a pecuniary penalty up to $250,000 for each contravention (see item 2).

 

Proposed subsection 531F(5) would provide that proposed subsections 531F(1)-(4) would cease to have effect at the end of the period of 10 years beginning on the date on which proposed subsection 531F(5) commences.

 

This provision would ensure that the obligation on carriers and utilities to provide information would extend only for the period during which the National Broadband Network is being rolled out.  The sunset period of 10 years is intended to cover the period of roll-out of the National Broadband Network and to make it clear that the obligation to provide information will not continue indefinitely.  Although it is anticipated that the roll-out will occur over an eight year period, this provision permits flexibility.

 

Item 26 - Subsection 531G(1)

 

Items 26-38 make a number of changes to section 531G in Division 3 of Part 27A, which deals with the protection of information.  Currently, Division 3 of Part 27A prohibits disclosure or use of protected carrier information except in specified circumstances.  These obligations 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 or used. 

 

Section 531G sets out a number of circumstances in which entrusted public officials are permitted to disclose and use protected carrier information.

 

Several of the amendments proposed by these items to section 531G would make minor changes to the section as a consequence of changes made by other items in this Bill (for example, replacing the phrase ‘protected carrier information’ with the phrase ‘protected network information’ (see items 14 and 15), or adding the words ‘or utility’ after the word ‘carrier’, to ensure that the provision will apply to utilities given the extension of the obligation to provide information to those entities (see item 16)).

 

Item 26 amends subsection 531G(1) of the Act by replacing the phrase ‘protected carrier information’ with ‘protected network information’. This amendment is consequential to the amendments made by items 14 and 15.

 

Item 27 - Paragraphs 531G(2)(a), (b), (c), (d), and (e)

 

Subsection 531G(1) of the Act, as proposed to be amended by item 27, sets out a general prohibition on disclosure or use of protected network information by a person who is an entrusted public official (see section 531B of the Act for the definition of this term).

 

Subsection 531G(2) sets out a number of exceptions to the general prohibition on disclosure of protected network information by an entrusted public official.  Currently, paragraphs 531G(2)(a)-(d) permit an entrusted public official to disclose the information to another entrusted public official for various reasons related to a designated request for proposal notice .  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.  These sections, which cover all stages of the conduct of a Request for Proposals process, are no longer necessary given the NBN Request for Proposals process has been terminated.

 

As a result, item 27 proposes to repeal paragraphs 531G(2)(a)-(d), and to replace them with proposed paragraphs 531G(2)(a) and (b), which would provide exemptions to the general prohibition on disclosure of protected network information in subsection 531G(1) that are relevant to the implementation and roll-out of the National Broadband Network as announced by the Government on 7 April 2009.

 

Proposed paragraph 531G(2)(a) would provide that an entrusted public official may disclose protected network information to another entrusted public official for the purposes of the Implementation Study for the National Broadband Network.  The Implementation Study is expected to make recommendations to the Government on the NBN Company’s operating arrangements, network design and ways to attract private sector investment.

 

The Minister may impose further conditions that must be met where an entrusted public official discloses information to another entrusted public official for the purposes of the Implementation Study for the National Broadband Network (see proposed subparagraph 531G(2)(a)(ii)).  Conditions would be imposed through a Ministerial determination, which would be a legislative instrument for the purposes of the LIA (see proposed subsection 531G(2A), inserted by item 30).  The conditions could for instance place further restrictions on the type of entrusted public official to whom information can be disclosed, or the type of network information that can be disclosed, or the purposes for which it could be used in the context of the Implementation Study.

 

Proposed paragraph 531G(2)(b) would provide that an entrusted public official may disclose protected network information to another entrusted public official for a purpose that is specified in the regulations.  Any purpose that is specified must relate to the creation or development of a broadband telecommunications network, the supply of carriage services using such a network, or a matter incidental to either of those matters (subparagraphs 531G(2)(b)(i)-(iii)).  The power to specify in the regulations purposes for which information could be disclosed is intended to ensure that entrusted public officials can still disclose the information to other entrusted public officials after the completion of the Implementation Study, for purposes that relate to a broadband telecommunications network.  Examples of a purpose that could be specified would include:

-           allowing officials to advise the Minister or Cabinet in relation to matters covered in the Implementation Study report;

-           allowing officials within the ACMA, the ACCC or the Australian Security Intelligence Organisation to give advice to a Minister, the Cabinet, or a committee established under the executive power of the Commonwealth in relation to a broadband telecommunications network; or

-           allowing officials to advise the Minister or Cabinet about the operation of the NBN Company to which network information is relevant. 

 

Para graph 531G(2)(e) of Part 27A, which currently provides for additional purposes to be specified in the regulations, is proposed to be repealed by item 27, as it is superseded by proposed paragraph 531G(2)(b).

 

Item 28 - Paragraph 531G(2)(i)

Item 29 - Paragraph 531G(2)(j)

 

Items 28 and 29 amend paragraphs 531G(2)(i) and (j), which provide exceptions to the prohibition on disclosure of the information where the carrier has consented to the information being disclosed, or the carrier has itself made the information public.  These items apply these exceptions to utilities by including the words ‘or utility’ after the word ‘carrier’. These amendments are consequential to the amendment made by item 16.

 

Item 30 - After subsection 531G(2)



Item 30 would insert proposed subsections 531G(2A), (2B) and (2C). 

 

Proposed subsection 531G(2A) would provide that the Minister may make a determination setting out conditions for the purposes of proposed subparagraph 531G(2)(a)(ii) (see item 27), and that such a determination would be a legislative instrument. 

 

Proposed subsection 531G(2B) would provide that the exception in paragraph 531G(2)(a) will cease to have effect at the end of 30 June 2010, unless the Minister specifies a later date in a legislative instrument.  The Minister can only specify a later date in a legislative instrument before 30 June 2010.  Although it is expected that the Implementation Study for the National Broadband Network will have completed its report by that date, this provision permits flexibility.

 

Proposed subsection 531G(2C) would provide that the exception in paragraph 531G(2)(b) (see item 27) would cease to have effect at the end of the period of 10 years beginning on the day on which this subsection commences.  It is appropriate that the power to specify purposes in the regulations for which disclosure to other entrusted public officials would be permitted is time-limited, so that disclosure can occur during the roll-out of the NBN, but after the completion of the Implementation Study, for purposes that relate to a broadband telecommunications network.

 

Item 31 - Subsection 531G(3)

 

Subsection 531G(3) of Part 27A sets out a sunset period of 12 months for paragraph 531G(2)(e).  As that paragraph is proposed to be repealed by item 27, item 31 makes a consequential change, proposing the repeal of subsection 531G(3).

 

Item 32 - Paragraphs 531G(3A)(a), (b), (c), (d) and (e)

 

Subsection 531G(3A) in Part 27A specifies the permitted purposes for which an entrusted public official may use protected carrier information.  The purposes for which protected carrier information may be used that are listed in this subsection are consistent with the purposes for which the information may be disclosed under proposed subsection 531G(2).

 

Item 32 proposes changes to subsection 531G(3A) that reflect the changes proposed to subsection 531G(2) by item 27.  Paragraphs 531G(3A)(a)-(e) would be repealed, and replaced with proposed paragraphs 531G(3A)(a) and (b).

 

Proposed paragraph 531G(3A)(a) would provide that an entrusted public official may use protected network information for the purposes of the Implementation Study for the National Broadband Network. 

 

The Minister may impose further conditions that must be met where an entrusted public official uses protected network information for the purposes of the Implementation Study for the National Broadband Network (see proposed subparagraph 531G(3A)(a)(ii)).  Conditions would be imposed through a Ministerial determination, which would be a legislative instrument for the purposes of the LIA (see proposed subsection 531G(3AA), inserted by item 35).  The conditions could for instance place further restrictions on the type of entrusted public official who could use information, or the type of protected network information that can be used, or the way in which it can be used.

 

Proposed paragraph 531G(3A)(b) would provide that an entrusted public official may use protected network information for a purpose that is specified in the regulations.  Any purpose that is specified must relate to the creation or development of a broadband telecommunications network, the supply of carriage services using such a network, or a matter incidental to either of those matters (proposed subparagraphs 531G(3A)(b)(i)-(iii)).  The power to specify in the regulations purposes for which information could be disclosed is intended to ensure that entrusted public officials can still use the information after the completion of the Implementation Study, for purposes that relate to a broadband telecommunications network.  One example of a purpose that could be specified would be to allow officials to use the information for the purposes of the Minister or Cabinet in relation to matters covered in the Implementation Study report. 

 

Item 33 - Paragraphs 531G(3A)(h)

Item 34 - Paragraphs 531G(3A)(i)

 

Items 33 and 34 amend paragraphs 531G(3A)(h) and (i) which provide exceptions to the prohibition on use of the information where the carrier has consented to the information being used, or the carrier has itself made the information public.  These items apply these exceptions to utilities by including the words ‘or utility’ after the word ‘carrier’. These amendments are consequential to the amendment made by item 16.

 

Item 35 - After subsection 531G(3A)

 

Item 35 would insert proposed subsections 531G(3AA), (3AB) and (3AC). 

 

Proposed subsection 531(3AA) would provide that the Minister may make a determination setting out conditions for the purposes of proposed subparagraph 531G(3A)(a)(ii) (see item 26), and that such a determination would be a legislative instrument. 

 

Proposed subsection 531G(3AB) would provide that the exception in paragraph 531G(3A)(a) will cease to have effect at the end of 30 June 2010, unless the Minister specifies a later date in a legislative instrument.  The Minister can only specify a later date in a legislative instrument before 30 June 2010.  Although it is expected that the Implementation Study for the National Broadband Network will have completed its report by that date, this provision permits flexibility.

 

Proposed subsection 531G(3AC) would provide that the exception in paragraph 531G(3A)(b) would cease to have effect at the end of the period of 10 years beginning on the day on which this subsection commences.  It is appropriate that the power to specify purposes in the regulations for which disclosure to other entrusted public officials would be permitted is time-limited, so that use of the information by entrusted public officials can occur during the roll-out of the NBN, but after the completion of the Implementation Study, for purposes that relate to a broadband telecommunications network.



Item 36 - Subsection 531G(3B)

 

Subsection 531G(3B) of Part 27A sets out a sunset period of 12 months for paragraph 531G(3A)(e).  As that paragraph is proposed to be repealed by item 32, item 36 makes a consequential change, proposing the repeal of subsection 531G(3B).

 

Item 37 - Subsections 531G(4) and (4A)

 

Subsections 531G(4) and (4A) 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 information under subsection 531G(2) or (3A), respectively. 

 

Item 37 would amend subsections 531G(4) and (4A) to apply these provisions to utilities, by including the words ‘or utility’ after the word ‘carrier’. These amendments are consequential to the amendment made by item 16.

 

Item 38 - Subsection 531G(5)

 

Subsection 531G(5) provides that section 70 of the Crimes Act 1914 applies to an entrusted public official who has obtained protected network information as if that person were a Commonwealth officer.  This means that disclosure of protected carrier information otherwise than as permitted by section 531G is a criminal offence. 

 

Item 38 amends section 531G(5) of the Act by replacing the phrase ‘protected carrier information’ with ‘protected network information’. This amendment is consequential to the amendments made by items 14 and 15.

 

Item 39 - Section 531H

 

Item 39 would repeal section 531H of the Act and replace it with proposed section 531H.

 

Section 531H sets out the circumstances in which an authorised information officer is permitted to disclose protected carrier information to an entrusted company officer of a company.  Currently the companies referred to in section 531H are companies interested or involved in responding to a designated Request for Proposals notice.  As the NBN Request for Proposals process has been terminated and provisions in Part 27A dealing with the request for proposal are being repealed, item 39 would replace the existing section 531H with proposed section 531H which deals with the disclosure of protected network information to the NBN Company or to certain other companies that may be specified by the Minister (‘designated broadband companies’, see item 17).

 

Proposed section 531H - Disclosure of protected network information to the NBN Company or a designated broadband company

 

Proposed section 531H would set out the circumstances in which an authorised information officer would be permitted to disclose protected network information to an entrusted company officer of the NBN Company or a designated broadband company.

 

Proposed subsection 531H(1) would provide that an authorised information officer may disclose protected network information to an entrusted company officer of the NBN Company or of a designated broadband company for certain purposes, and if certain conditions are met.  ‘Entrusted company officer’ is a term defined in section 531B (see amendments to the definition made by item 12).

 

The purposes for which information can be disclosed to the NBN Company or a designated broadband company are the creation or development of that company’s broadband telecommunications network, the supply of carriage services using that company’s broadband telecommunications network, or a matter incidental or ancillary to those matters (see proposed paragraphs 531H(1)(c)-(e)).  This is intended to clarify that protected network information must only be disclosed to a company for purposes relating to that company’s involvement in the roll-out of the National Broadband Network, or relating to the company’s eventual supply of carriage services.

 

The requirements that must be met in order for protected network information to be disclosed to an entrusted company officer of the NBN Company or a designated broadband company are at proposed paragraphs 531H(1)(f) and (g): the disclosure must comply with any restricted recipients rules made under section 531N, and the disclosure must meet any conditions specified in a determination that is made under proposed subsection 531H(3).

 

Proposed subsection 531H(2) clarifies 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 (which mirrors the existing subsection 531H(2) in Part 27A) is to ensure that the intended purpose of Part 27A, which is to facilitate the development of the National Broadband Network, is not undermined by delays created by the potential need for an authorised information officer to consult with a carrier or utility every time the authorised information officer wishes to disclose information under section 531H.  This is intended to displace any common law obligation to consult a carrier or utility.  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 and utilities): see subsection 531C(4), as proposed to be amended by items 21-23.

 

Subsection 531H(3) permits the Minister to make a determination setting out conditions for the purpose of proposed paragraph 531H(1)(g).  A determination would be a legislative instrument for the purposes of the LIA.  Conditions that could be imposed could for example restrict types of designated broadband companies to whose entrusted company officers information could be disclosed, or could impose further restrictions on the purposes for which protected network information could be disclosed to the NBN Company or a designated broadband company.  In addition, the Minister could restrict the types of entrusted company officers to whom information may be disclosed by making restricted recipient rules under section 531N.

 

It is intended that any decision by an authorised information officer to provide protected network information to the NBN Company or to a designated broadband company in accordance with proposed section 531H would only be made if the disclosure of the information to those companies is recommended by the Implementation Study for the National Broadband Network, and in accordance with a decision by the Minister.

 

Proposed subsection 531H(5) would provide that proposed subsections 531H(1)-(4) would cease to have effect at the end of the period of 10 years beginning on the date on which proposed subsection 531H(5) commences.  This provision would ensure that the ability to disclose information to the NBN Company or to a designated broadband company would extend only for the period during which the National Broadband Network is being rolled-out.  The sunset period of 10 years is intended to cover the period of roll-out of the National Broadband Network and to make it clear that the ability to disclose information to these companies will not continue indefinitely.

 

Item 40 - Subsection 531K(1)

 

Items 40-48 make a number of changes to section 531K of the Act in Division 3 of Part 27A, which deals with the protection of information.  As noted, Division 3 of Part 27A currently prohibits disclosure or use of protected carrier information except in specified circumstances.  These obligations 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 or used. 

 

Section 531K sets out a number of circumstances in which entrusted company officers are permitted to disclose and use protected carrier information.

 

Several of the changes made by these items to section 531K make minor changes to the section as a consequence of changes made by other items in this Bill (for example replacing the phrase ‘protected carrier information’ with the phrase ‘protected network information’ (see items 14 and 15), or adding the words ‘or utility’ after the word ‘carrier’, to ensure that the provision will apply to utilities given the extension of the obligation to provide information to those entities (see item 16)).

 

Item 40 amends subsection 531K(1) of the Act by replacing the phrase ‘protected carrier information’ with ‘protected network information’. This amendment is consequential to the amendments made by items 14 and 15.

 

Item 41 - Paragraphs 531K(2)(a) and (b)

 

Subsection 531K(1) of the Act, as proposed to be amended by item 40, sets out a general prohibition on disclosure or use of protected network information by a person who is an entrusted company officer (see section 531B of the Act for the definition of this term, as proposed to be amended by items 11 and 12).

 

Paragraphs 531K(2)(a) and (b) in Part 27A currently permit an entrusted company officer to disclose information for purposes related to submissions to a designated Request for Proposals notice.  These provisions are no longer necessary since the NBN Request for Proposals process has been terminated.

 

Consequently item 41 would repeal paragraphs 531K(2)(a) and (b) and replace them with proposed paragraph 531K(2)(a), which would permit an entrusted company officer of a company who receives protected network information to disclose that information to another entrusted company officer of that company for certain purposes, so long as certain conditions are met.

 

Similar to section 531H, the purposes for which information is permitted to be disclosed under proposed paragraph 531K(2)(a) are the creation or development of that company’s broadband telecommunications network, the supply of carriage services using that company’s broadband telecommunications network, or a matter incidental or ancillary to those matters (see proposed subparagraphs 531K(2)(a)(i)-(iii)).  This is intended to clarify that protected network information may only be disclosed by an entrusted company officer of a company to another entrusted company officer of the same company for purposes relating to that company’s involvement in the roll-out of the National Broadband Network, or relating to the company’s eventual supply of carriage services.

 

The requirements that must be met in order for protected network information to be permitted to be disclosed by an entrusted company officer of a company to another entrusted company officer of the same company are at proposed subparagraphs 531K(2)(iv) and (v): the disclosure must comply with any restricted recipients rules made under section 531N, and the disclosure must meet any conditions specified in a determination that is made under proposed subsection 531K(2AA) (see item 44).

 

Item 42 - Paragraph 531K(2)(c)

Item 43 - Paragraph 531K(2)(d)

 

Items 42 and 43 would make minor changes to paragraphs 531K(2)(c) and (d), which provide exceptions to the prohibition on disclosure of the information where the carrier has consented to the information being disclosed, or the carrier has itself made the information public.  These items apply these exceptions to utilities by including the words ‘or utility’ after the word ‘carrier’. These amendments are consequential to the amendment made by item 16.

 

Item 44 -  After subsection 531K(2)

 

Item 44 would insert proposed subsection 531K(2AA) which would permit the Minister to make a determination setting out conditions for the purpose of proposed subparagraph 531K(2)(a)(v).  A determination would be a legislative instrument for the purposes of the LIA.  Conditions that could be imposed could, for example, restrict the types of entrusted company officers of a company to whom information may be disclosed, or could impose further restrictions on the purposes for which protected network information could be disclosed to another entrusted company officer of a company.

 

Item 45 - Paragraph 531K(2A)(a )



Paragraph 531K(2A)(a) in Part 27A currently permits an entrusted company officer to use information for purposes related to submissions to a designated request for proposal notice.  This provision is no longer necessary since the NBN Request for Proposal process has been terminated.

 

Consequently item 45 would repeal paragraph 531K(2A)(a) and replace it with proposed paragraph 531K(2A)(a), which would permit an entrusted company officer of a company who receives protected network information to use that information for certain purposes, so long as any conditions are met.

 

Similar to amendments made to other provisions in Part 27A by this Bill, the purposes for which information is permitted to be used by an entrusted company officer of a company under proposed paragraph 531K(2A)(a) are the creation or development of that company’s broadband telecommunications network, the supply of carriage services using that company’s broadband telecommunications network, or a matter incidental or ancillary to those matters (see proposed subparagraphs 531K(2A)(a)(i)-(iii)).  This is intended to clarify that protected network information may only be used by an entrusted company officer of a company for purposes relating to that company’s involvement in the roll-out of the National Broadband Network, or relating to the company’s eventual supply of carriage services.

 

In order for protected network information to be permitted to be used by an entrusted company officer of a company, the use must comply with any conditions specified in a determination that is made under proposed subsection 531K(2B) (see item 48).

 

Item 46 - Paragraph 531K(2A)(b)

Item 47 - Paragraph 531K(2A)(c)



Items 46 and 47 would make minor changes to paragraphs 531K(2A)(b) and (c), which provide exceptions to the prohibition on the use of the information by an entrusted company officer where the carrier has consented to the information being disclosed, or the carrier has itself made the information public.  These items apply these exceptions to utilities by including the words ‘or utility’ after the word ‘carrier’. These amendments are consequential to the amendment made by item 16.

 

Item 48 - After subsection 531K(2A)



Item 42 would insert proposed subsection 531K(2B) which would provide that the Minister may make a determination setting out conditions for the purposes of proposed paragraph 531K(2A)(a) (see item 39).  A determination would be a legislative instrument. 
Conditions that could be imposed could for example restrict the purposes for which protected network information could be used by an entrusted company officer of a company.



Item 49 - Paragraph 531L(1)(a)

Item 50 - Subsection 531L(1)

Item 51 - Paragraph 531L(3)(a)

Item 52 - Subsection 531L(3)

 

Section 531L of the Act provides 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 subsection 531K(1) and that the conduct of an entrusted company officer can be attributed as a liability to the company after considering the actual or apparent scope or authority of the entrusted company officer’s employment or the actual or apparent authority of the entrusted company officer’s employment; and

-           the Court is satisfied that the entrusted company officer acted with the express or implied authorisation of the company and the carrier has suffered loss or damage. 

 

As a result of the expansion of Part 27A by this Bill such that utilities may be required to provide information, it is necessary to ensure that utilities as well as carriers enjoy the benefit of the mechanism offered by section 531L.

 

For this reason, items 50 and 52 include the words ‘or utility’ where required in section 531L to permit utilities who have provided information to an authorised information officer to make an application to the Federal Court.

 

Items 49 and 51 also make necessary amendments to section 531L to replace references to ‘protected carrier information’ with references to ‘protected network information’.  These amendments are necessary as a result of items 14 and 15.

 

Item 53 - Subsection 531P(1) and (2)

Item 54 - Subsection 531P(2)



S
ection 531P of the Act currently deals with the storage, handling or destruction of protected carrier information, and permits the Minister, by legislative instrument, to make rules relating to the storage, handling or destruction of protected carrier information.  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.

 

It is intended that the Minister could continue to make rules dealing with the storage, handling and destruction of information that is provided by carriers and utilities under Part 27A as amended by this Bill.

 

Item 53 makes necessary amendments to subsections 531P(1) and (2) to replace references to ‘protected carrier information’ with references to ‘protected network information’.  These amendments are necessary as a result of items 14 and 15.

 

Item 54 makes amendments to subsection 531P(2) to include the words ‘or utility’ after the word ‘carrier’ in that provision.  This will have the effect that rules in force under subsection 531P(1) must not impose any requirements on a carrier or utility who provides information to an authorised information officer.



Item 55 - Section 531Q

 

Section 531Q is an interpretive provision that relates to a submission that a company may make in response to the NBN Request for Proposals process.  As that process has been terminated, section 531Q is no longer required, and as a result it would be repealed by item 55.

 




[1] Access Economics, The Economic Benefits of Intelligent Technologies: Report prepared for IBM , May 2009.

 

[2] See, for example, Analysys-Mason, Final report for the Broadband Stakeholder Group: The costs of deploying fibre-based next-generation broadband infrastructure, pp.5, 51, A-5.

[4] See: Standing Committee on Environment, Communications and the Arts, Report on the Telecommunications Legislation Amendment (National Broadband Network) Bill 2008 , May 2008.

[5] See Regulation Impact Statement for the Telecommunications Legislation Amendment (National Broadband

Network) Bill 2008
at http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s619_ems_1bbd8d60-3dff-41f5-94e4-223bdc7db023/upload_word/08013em.doc; fileType=application%2Fmsword