Tuesday, 1 March 2011
National Broadband Network Companies Bill 2010
Consideration in Detail
No. In fact, because we will divide on (17) I will just deal with that one now. Accordingly, I move opposition amendment (17):
(17) After clause 96, page 79 (after line 15), insert:
NBN Co is taken to be a prescribed authority for the purposes of the Freedom of Information Act 1982.
This amendment is designed to make the NBN Co. a prescribed authority for the purpose of the Freedom of Information Act 1982. I will speak in apprehension of the amendment coming from the Greens, which, regrettably, is one where the Greens have been sold a big pup by the government.
Initially the Greens were proposing to move the same amendment that we describe here. This would have had the effect of bringing the NBN under the ambit of section 9 of the Freedom of Information Act, so it would then be an agency within the meaning of that act and would be subject to that act. This does not mean that every document of the NBN could, willy-nilly, be produced. The NBN would then be able to claim exemption under part IV of the Freedom of Information Act, including section 42, ‘Documents subject to legal professional privilege’; section 46, ‘Documents disclosure of which would be contempt of parliament or contempt of court’; section 45, ‘Documents containing material obtained in confidence’; and section 47, ‘Documents disclosing trade secrets or commercially valuable information’. It is absolutely critical that the NBN is thoroughly accountable in this regard.
Unfortunately, the amendment that the Greens will propose shortly—and the House may consider this in some detail when they propose it—has the effect of making the NBN completely immune in practical terms from the Freedom of Information Act. The Greens amendment, which I understand the government has persuaded them to put up, has the effect of making exempt all documents of the NBN which can be described as being ‘in relation to its commercial activities’. Given that the NBN is a business, it has no activities which are other than commercial. The words ‘in relation to’ have been construed by the courts on many occasions as being of very great ambit. So if ‘commercial activities’ has a defined meaning—and of course that has a very broad meaning; it is hard to imagine a term that is more generous in its compass—adding the words ‘in relation to’ makes it wider still.
I would ask the member for Melbourne, when he moves his amendment, to advise us what documents of the NBN would not be exempt under his amendment. We have, frankly, the farce of the Greens, who are claiming that they are interested in accountability and transparency but have been gulled or conned by the government into a set of amendments that will make the NBN, for all practical purposes, completely immune from disclosure of any documents under the Freedom of Information Act.
The amendment that we propose, and which the Greens did in fact support some time ago, is much more appropriate. It makes the NBN a prescribed authority under the Freedom of Information Act, which makes it an agency for the purpose of the act. The act gives it extensive exemptions that we are all familiar with, including those that I described. This is an effective Freedom of Information Act amendment which will result in the NBN being accountable without commercially confidential, trade secrets, legal documents et cetera being obliged to be produced. (Time expired)