Tuesday, 1 March 2011
Telecommunications Legislation Amendment (National Broadband Network Measures — Access Arrangements) Bill 2010
Consideration in Detail
by leave—I move Australian Greens amendments (1) and (2):
(1) Clause 2, page 3 (at the end of the table), add:
5. Schedule 1, Part 4
The day after the end of the period of 60 days beginning on the day this Act receives the Royal Assent.
(2) Schedule 1, page 69 (after line 4), at the end of the Schedule, add:
Part 4—Amendments relating to freedom of information
115 Subsection 4(1)
116 Subsection 4(1) (at the end of paragraph (a) of the definition of prescribed authority)
117 Subsection 4(1) (after paragraph (a) of the definition of prescribed authority)
(aa) NBN Co; or
118 Subsection 4(1) (at the end of paragraph (b) of the definition of prescribed authority)
119 Subsection 4(1) (after paragraph (b) of the definition of responsible Minister)
(ba) in relation to the prescribed authority referred to in paragraph (aa) of that definition—the Minister administering the National Broadband Network Companies Act 2011; or
120 Subsection 7(3)
Before “means”, insert “(except when used in relation to NBN Co)”.
121 After subsection 7(3)
(3A) In Part II of Schedule 2, commercial activities, when used in relation to NBN Co, means:
(a) activities carried on by NBN Co on a commercial basis; or
(b) activities, carried on by NBN Co, that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis.
NBN Co, in relation to documents in respect of its commercial activities
The Greens have been big supporters of faster broadband and of the nation-building project that is the National Broadband Network. On current estimates the NBN will see one of the largest sums of public money invested in one of the largest infrastructure projects in our history. Accordingly, the Greens believe that the public does have a legitimate interest in how the project proceeds and should have access to all relevant information through the FOI regime as well as through parliamentary mechanisms such as Senate estimates, the committee process and questions to ministers.
The Greens are not prepared to see the continuation of a long-term trend of gradually corporatising government services and then claiming information is commercial-in-confidence. That trend has to be rolled back and NBN Co. is the place to start. We also believe that maximum transparency is in fact the best way to build public confidence in the NBN. Senator Ludlam announced in mid-January our intention to take action to make NBN Co. subject to the Freedom of Information Act, and it is that announcement that these amendments implement today. The amendments provide that the NBN Co. is subject to the freedom of information regime under the Freedom of Information Act. The amendments seek to have the NBN Co.—and this is an important point, because it has been raised in the debate so far—subject to the same level of transparency as Medibank or Australia Post, while affording NBN Co. a level of protection for material that is genuinely commercially sensitive.
I have listened to the contribution from the member for Wentworth, who has suggested that this is somehow a deviation from our original intention. The point that we made at the start was very, very clear—that is, we always wanted the FOI regime to apply but not in such a way that it would put NBN Co. at a commercial disadvantage. I understand from what the member for Wentworth has said that he does accept that it is appropriate for trade secrets and other commercially valuable information to be outside the reach of FOI as it applies to the NBN Co. However, the approach that has been taken by the opposition is that, rather than treating the NBN Co. similar to other government business enterprises such as Australia Post, they would rather apply FOI to the NBN Co. in the same way that it applies to departments of state or public sector agencies. That would force NBN Co. to defend trade secrets and other commercially sensitive information on a case-by-case basis as each request is received, which in turn would lead to a significant risk that NBN Co.’s competitors would gain access to its trade secrets and would also significantly divert its resources.
There has been a lot of talk about ‘pups’ and suggestions that the Greens have been sold one. The member for Wentworth seems keenly able to identify a pup when he sees one. I would ask him or his colleagues, if he believes that is the case, to raise these matters when the amendment to the bill comes before the Senate inquiry, because it is something that we will consider in good faith. Our intention behind these amendments is to have a narrow definition of commercial activity that essentially puts the NBN Co. on the same footing as Australia Post or a similar government business enterprise. Information is central to knowing how our elected representatives are exercising their power and to holding our representatives to account. Transparency and accountability is particularly pertinent in the expenditure of taxpayers’ money. The Greens believe that open and transparent government is a prerequisite to an effective democracy.