Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT (NATIONAL BROADBAND NETWORK
MEASURES-NETWORK INFORMATION) 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-NETWORK INFORMATION) BILL 2009
OUTLINE
The Telecommunications Legislation Amendment (National Broadband Network
Measures-Network Information) 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 - currently known as NBN Co Limited). 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 NBN Co Limited (A.C.N. 136
533 741), 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. 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. For this
reason, the 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. The Australasian Railway Association has
indicated that there are at least 15 major railway track owners and
managers in Australia. 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-Network Information) 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-Network Information) 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 NBN Co Limited
(A.C.N. 136 533 741). NBN Co Limited is the current name of the company
that has been established by the Commonwealth to build and operate the
network. To take account of any further changes in the name of the
company, the definition of 'NBN Company' flags the potential for a change
in name of the company, and provides that the 'NBN Company' is NBN Co
Limited (A.C.N. 136 533 741), 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 therefore amends 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.
Paragraph 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)
Section 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.
[3] See Schedule 1 to the Telecommunications (National Broadband Network
Designated Information) Determination 2008 (No. 1).
[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_em
s_1bbd8d60-3dff-41f5-94e4-
223bdc7db023/upload_word/08013em.doc;fileType=application%2Fmsword