Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

There is some debate about whether this matter was going to get on at this stage.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

It was completed, I thought.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I do not think it has been completed. As Senator Conroy knows, we have been discussing a large number of matters. I can see by the look of anxiety on his face that he is very anxious to get this thing dealt with, and I accept that. I have 15 minutes in which to speak on this, which I am happy to do. You can make some phone calls while I am speaking. I will continue my 15-minute discussion.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Senator Ronaldson, I am happy to take your advice on making that call, but the key decision is not what happens today but what will happen tomorrow. We will only bring the key decision on tomorrow if we actually pass it today. Nothing is changed by us facilitating and getting these amendments. If you pass your amendments and defeat ours, nothing changes, because the key decision is what you intend to do tomorrow, which I am happy to have a discussion about. It will facilitate the passage of a number of other bills that also have to be passed if we complete the committee stage. I am happy to make that phone call, but it does not change anything as to whether or not we pass these amendments.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

There has been some discussion as to whether these matters could be dealt with tomorrow and be back here by tomorrow afternoon. I think there has been some advice from the clerks, but there have been further discussions between the Manager of Opposition Business and the Manager of Government Business in relation to these matters. From recollection, we were discussing earlier government amendments (4) and (9) and whether the opposition’s amendments were of greater strength than the government’s. I prosecuted the case and pleaded that they were. We were discussing the voluntary disclosure aspects of this legislation.

Opposition amendment (9), which is probably best to refer to, comprehensively deals with voluntary disclosure information, a process that if followed correctly would have made this piece of legislation redundant. The amendment deals with the ‘effect, application and sanction for the use and tight control of sensitive corporate information voluntarily given by carriers to the government’. Our amendment (9) also ensures the even-handed treatment of both voluntary and non-voluntary information. The opposition opposes government amendment (4) because it does not go far enough. But, in the spirit of a constructive practice, we do offer, with goodwill, our amendment (9), which we believe goes significantly further.

Government amendment (9) is not accepted because the opposition believe that it actually removes natural justice outcomes for public officials, carriers and trusted officials, which may follow if they are required to make an adverse decision. It looks as though this provision is designed to shut down any recourse, and that is simply not acceptable. There must be an appeal mechanism or, at the very least, an explanation as to the decision, particularly when the decision could adversely affect their bid. We do not believe that there is an appropriate level of natural justice associated with the provisions of this bill. We do not think it is fair, particularly for public officials and others. Sometimes they will be required to make adverse decisions and we think in that regard this amendment should be agreed to.

As I said earlier on, the opposition oppose government amendment (4) because we believe that our amendment (9) is far superior. It comprehensively deals with the protected carrier information that is handed to the government on a voluntary basis. Our amendment effectively deals with the use and application of this information, and sanctions for the misuse of this information, whereas the government’s amendment is, at best, flowery and does not address sanctions. We believe that the government’s amendment, born of a committee process that we insisted upon, has not adopted the recommendation as desired.

The opposition are opposing both of the government’s amendments on that basis. As I said earlier this afternoon, I think they are good amendments that could reasonably be accepted by the government to make this legislation better. I had hoped that our contribution in the committee, in the other place and in here today would have been viewed as constructive to make this a better piece of legislation and to assist the government in addressing its imperatives with this process. As I said before, we accept that it was an election commitment. But we believe that, even though it was an election commitment, it does not mean that it should go without an unfettered review by either the appropriate committee or the parliament itself. That is why we are suggesting that these two amendments be opposed and that the government should effectively substitute our amendment.

Obviously, on many occasions there is the requirement for opposition, government and minor parties to agree to matters that will make legislation better. The Leader of the Democrats approached me earlier on in relation to some suggested amendments to, I think, from recollection, opposition amendment (16). They were sensible contributions to making this process better. That is why, despite what we might read and what we might sometimes hear, the process works and these chambers work. There are contributions from everyone involved in the process that will make it better. What concerns me is that there is a level of stubbornness in relation to this matter. The government clearly want this legislation through. We accept that they have gone down a path—we do not believe it was a path they were required to take; we believe they could have gone down the deed path or the voluntary information path and achieved the very outcome that they wanted. They did not need to go down this legislative path. This could have been done quite easily. Senator Conroy, I presume you have finished your phone call. I am talking while you get an opportunity to do other things, but I will continue to get to the 15 minutes.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I will happily fill in for you while you make a phone call.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I will do so in a second. What we have said is that we believe there was another path the government could have taken with the use of deeds, the sort of deeds that would have given the government the confidential information that they required, and which would have enabled a cross-flow of information without the regulatory path. It was not required.

We are talking in generalities about both the bill—I accept that—and some of the amendments. I return to amendments (4) and (9). We oppose them. We do not believe that they add to this bill. In fact, we believe that our substitute for paragraph (9) would actually strengthen that. I will go and do as Senator Conroy has just done, and I assume that he will hold the floor for me for a certain period of time.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I think it is appropriate right now to stress to those opposite the importance of this bill. If this bill does not proceed and get passed by the parliament—let me be clear about this—the RFP will be stalled. It is that simple. If we do not pass this bill, the government’s election commitments to deliver broadband will be stalled in the Senate by the coalition. You have the right, you have the numbers, for another few months. But I cannot be clearer on this: the RFP will not be able to proceed without the information that this bill delivers. You will have stalled the bill. Australians will be receiving second-rate broadband services because of the coalition, because coalition senators have made a decision to filibuster and play chicken over this bill. We have made it clear that, while we accept the good intent of the amendments, we believe our amendments (4) and (9) meet the concerns of the Senate committee. We do not believe we need to go further in the way that Senator Ronaldson and the opposition amendments are suggesting. There is another amendment, or two, from the opposition, which we will not be accepting. It goes to how the ministers should conduct themselves and, while I appreciate as always the advice of my friend Mr Billson, the member for Dunkley, on this one, we will choose to thank him but say no. Let me be clear: if the opposition insist on their amendments, the bill will be stalled and the broadband tender will be stalled. If the opposition filibuster their way through this evening, as they are doing at the moment, the bill will be stalled. So let me be clear, Senator Ronaldson, because I appreciate you have been doing good work, that if—

Government senators interjecting.

No, be fair. He does occasionally do good work. Let me be clear: if the bill does not pass this chamber tonight, then it will be almost impossible for the clerks to process the paperwork. It is not about goodwill or no. If the opposition insist tomorrow on their amendments, the broadband tender will be stalled, because no-one can build the network without this information. It is critical. We are going through the motions of passing a bill through parliament because this is critical. You cannot build the network without this information. I cannot be clearer. It is on the opposition’s head if this bill does not pass the parliament by tomorrow evening. They will be solely responsible for stalling the broadband project—a key election commitment that we were elected to deliver. You would be blocking and stalling a bill, so be under no illusions about the consequences of what you are considering. I hope we will have some new information and we may be able to facilitate the passage—and Senator Ronaldson may inform us—but be under no illusions: you will be stalling the broadband roll-out and the contract and the tender if you insist on your amendments or do not pass this bill through this chamber before 6.50.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I am utterly amazed that we have been across this chamber trying to facilitate some discussions and, while I am out making a phone call as a follow-up to Senator Conroy’s phone call, I am accused of filibustering. If you want me to filibuster, Senator Conroy, I will, but do not come into this chamber and accuse me of filibustering when you and I had an agreement that we would have some discussions between the shadow minister, you and me. Do not give me that rubbish about filibustering. I will stay here all night if that is the way you want to play the game, my friend. If you want to talk about whose fault this is, I will talk about it. We will get these amendments through and you can have your bill, but do not come into this chamber with that sort of rubbish.

I do not mind being accused of filibustering when I am filibustering, but when I have an agreement with one of your colleagues then it is an entirely different matter. I expect an apology from the Minister for Broadband, Communications and the Digital Economy. If he is half decent then he will do it.

Let us have a look at who is responsible for this legislation. The legislation was introduced into this chamber on 20 March. It was referred to a committee for investigation. It is now Wednesday. What happened yesterday? If this is so urgent, why was it not discussed yesterday? Why didn’t you bring it on for debate yesterday? And what did we have today? What legislation did we deal with this morning? Was this desperately urgent legislation—which apparently we are holding up—the first item of government business? No, it was not. The Telecommunications (Interception and Access) Amendment Bill 2008 was the first item of business. So let’s not talk this rubbish about filibustering and let’s not talk this rubbish about urgency. If you were serious about this, Minister, you would have brought it on yesterday. When were your government amendments circulated? This morning.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Yesterday.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

Sorry, yesterday. And when did the committee report? When were the committee discussions finalised?

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Friday.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

Do not give me that rubbish. Minister, you could not even get amendments finalised until last night. The only person who will wear the outcome of this is you. You are the one who put in place a convoluted political process. You are the one who was not prepared to consult. You are the one who closed down the committee that would have given you the answers to make this legislation better.

I am advised by the shadow minister that he will facilitate this process tonight and that he will do so despite your actions—despite your inability to communicate with him. It is quite remarkable, is it not, when you had something that is so desperately urgent, that you did not have the good grace to pick up the phone last night and say to him: ‘These are the amendments that we intend moving. Will you help me facilitate this process?’ Did you have the gumption to pick up the phone and say that? No, you did not. So do not come in here weeping crocodile tears about who is responsible for this legislation.

We have done everything possible to assist you in this process. It is your problem if this legislation does not get through by tomorrow. It is your problem when you—not this chamber, not the coalition, not the Australian Democrats, not the Greens and not Family First—have imposed a deadline. You put this date in yourself and you are the one who is madly running around trying to accommodate that. So do not come in here and accuse us of trying to stop this process. We will do it to get you out of a situation of your own making.

You know and I know that if this does not come back until June—when it should come back, after it has had appropriate consideration—it will leave you insufficient time to get contracts finalised. So we will facilitate your process. But you introduced this into this chamber on 20 March. You were the one who refused to take note of the committee. You were the one who tried to close down the process. You were the one who was ‘so concerned’ about this that you did not bring this matter on for debate until today. We sat yesterday and you had every opportunity to bring this matter on for debate then. You had the opportunity to bring this urgent bill on before another bill that was dealt with this morning. So do not come in here and accuse the non-government parties of in any way interfering with this legislative program of yours. We will accommodate it because the people who are involved in this process deserve it, not because the Australian Labor Party or you as minister in any way deserve the accommodation that you are being given.

What I am going to do in the next 20 minutes is move the coalition’s amendments without intimate discussion, because we will facilitate the process. We will take at face value the advice given to us by the clerks that this cannot be done tomorrow. We have important amendments to move, some of which are supported, I understand, by the Australian Democrats. You have not yet asked them whether they are prepared to facilitate this farcical process that you have put in place. The Leader of the Australian Democrats may not be as accommodating as I am; I do not know the answer to that. But we will not debate these amendments because you need to have this legislation through by 6.50 tonight. You are so disorganised, Minister, that half an hour ago you were talking about providing some time tomorrow morning to get this dealt with. You do not even understand the processes of this place. You did not take advice. You came to us 15 minutes ago on your hands and knees saying: ‘We need to get this through tonight; otherwise, it will not go through’—and then you have the gall to stand here and accuse us of not assisting the process! You have performed some incredible stunts in your day but this is absolutely right up there with them. The only good thing about this debate is that we do not have the computer!

I will expect your personal apology after this, because you know as well as I do that I am owed it. I am, however, going to facilitate this by moving these amendments through. We will have this out of here by 6.50 tonight—depending, of course, on the view of the Leader of the Democrats, Senator Allison, and whether she is prepared to accommodate that. I do not know the answer to that. But we will not be accused of holding up a process that you have bungled from day one. This is all of your making. I think that you can probably send the shadow minister, Mr Bruce Billson, a very big thankyou note, because if it were not for him accommodating your bungles you would not be in a position to let these contracts out to tender when you want to do so.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Could I thank Mr Billson and Senator Ronaldson—

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

Senator Ronaldson interjecting—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

We will get to that in a moment, Senator Ronaldson. Could I thank them for facilitating the passage of this legislation. It is an important piece of legislation to the government. It was an important election promise, and we appreciate the opposition’s forbearance on this in a tight time frame. Unfortunately, Senator Ronaldson, you came back into the chamber halfway through a sentence, so you did not actually hear the entire discussion.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

Senator Ronaldson interjecting—

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

You were on the phone and you did not hear the entire discussion, to be fair to you. I appreciate that you may have misheard what the discussion was. I am not going to further that. If any offence was taken, I withdraw and apologise, because that was not the intent.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

That’s the first time!

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

Thank you, Senator Watson; I appreciate your interjection as always. That was not the intent, but we welcome the opportunity. As I have indicated, the government do not believe that the intended opposition amendments actually do what they believe them to do. Therefore we believe that we should support our amendments, and we intend to press ahead with them. I appreciate that Senator Allison is probably in a complete fog at this point and wondering what has been going on. We appreciate your forbearance, Senator Allison, and, if we can facilitate any information coming your way as quickly as we can, we hope to do so.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I am not in a fog; I have just been ignored for the last day or so. Senator Conroy, you did not bother to let me know what your amendments were. As I said earlier, the opposition at least did that. In fact, they went beyond that and came around and gave me a briefing; you did not. Were I to be someone who was interested in payback, I would just simply support all of the opposition’s amendments without even hearing an explanation. That is what I gather we are talking about now. We are going to finish in time for this bill to be taken to the House of Representatives—is that correct? It is good to hear about that finally. That means that there will be no debate on the amendments themselves, so I do not really have any option but to go with what I can see to be a sensible approach. If you think these amendments from the opposition will not work then, frankly, that is your bad luck. If we are not going to have a debate in the chamber and you are not going to bother to brief me on your amendments and why they are preferable to the opposition’s then that is a problem you have to deal with, I am afraid. If there is to be no debate, that is okay by me. We will just get on and I will support the opposition’s amendments, as I said.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

If I could just respond to that point: I am advised by my office that we did offer a briefing to at least your office and we possibly spoke to you directly earlier in the week. Maybe it was your office that we spoke to. I am not trying to in any way suggest anything untoward, but we actually think that we offered a briefing.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

It is my understanding that a briefing was offered, but it was on the bill and not on the amendments. I did not know anything about the amendments until this morning. I think we would have said, as we usually do, that the Senate has its own processes for dealing with bills. Normally I would not say that we needed a briefing on the bill. But if it was a briefing on the amendments then you did not manage to get that across. Maybe that was a fault in my office, but it was not conveyed to me that this was about amendments that were not dealt with in the inquiry. We all have access to the report of that inquiry and, whilst I was not a participant in that hearing, I did read that report carefully and I know what it was about. There may have been a mix-up, Senator Conroy, but, as I understand it, no offer of a briefing on amendments came through in the last 24 hours.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

We circulated the amendments yesterday. I believe it was a briefing on the bill, but we did actually circulate the amendments yesterday. The briefing would probably have incorporated that. Maybe we did not specifically say that it would incorporate that. If there was a fault at our end, I accept responsibility for it. I am not trying to cast aspersions on your office. No offence is intended. The amendments actually respond to the committee recommendations. If there was a problem at our end, I apologise.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

Just very quickly, our end had problems as well in relation to the lack of briefings. I sympathise with Senator Allison’s position because the opposition was in exactly the same position.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that government amendments (9) and (4) on sheet PN285 be agreed to.

Question negatived.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (3) and (5) on sheet PN285:

(3)    Schedule 1, item 11, page 7 (after line 30), after the definition of entrusted public official in section 531B, insert:

matter preparatory to the publication of a designated request for proposal notice includes a matter preparatory to the publication of a variation of a designated request for a proposal notice.

(5)    Schedule 1, item 11, page 10 (after line 4), at the end of section 531D, add:

        (3)    For the purposes of subsection (1), it is immaterial whether the notice was published before or after the commencement of this section.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

The opposition will not be opposing these amendments.

Question agreed to.

I move opposition amendment (9) on sheet 5477:

(9)    Schedule 1, item 11, page 11 (after line 4), at the end of Division 2, add:

531FA Voluntary disclosure of information

When section applies in relation to a carrier

        (1)    This section applies in relation to a carrier (a volunteering carrier) if, whether before or after the commencement of this Part, the volunteering carrier has entered into an arrangement with the Commonwealth (a voluntary disclosure arrangement), whether by way of contract, confidentiality deed or other documentary form, which provides for volunteering carriers’ information (volunteered information) to be disclosed to:

             (a)    companies making or considering the making of submissions in response to an invitation set out in a designated request for proposal notice; and/or

             (b)    the Commonwealth in connection with a designated request for proposal notice.

Effect of voluntary disclosure

        (2)    If a person has obtained volunteered information pursuant to a voluntary disclosure arrangement, the person must not disclose that information to any other person where that disclosure would be or would result in a breach by any person of the voluntary disclosure arrangement.

        (3)    To avoid doubt, a reference to a voluntary disclosure arrangement includes a reference to undertakings given by way of contract, confidentiality deed or other documentary form to the volunteering carrier by a person receiving information pursuant to the arrangement.

Offences and civil penalties

        (4)    Subsection (2) is a civil penalty provision in its application to a person other than a person who has obtained the volunteered information in the person’s capacity as an entrusted public official.

        (5)    For the purposes of subsection (4), if conduct is engaged in by an employee, agent or officer of a corporation or partnership acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the conduct must also be attributed to the corporation or partnership.

        (6)    If a person has obtained volunteered information in the person’s capacity as an entrusted public official pursuant to the voluntary disclosure arrangement, section 70 of the Crimes Act 1914 has effect in relation to the information as if the person were a Commonwealth officer.

This, of course, has been a matter of some debate over the last hour or so, so I do not intend speaking any further to it.

Question agreed to.

by leave—I move opposition amendments (10) to (14) on sheet 5477:

(10)  Schedule 1, item 11, page 11 (after line 9), after subsection 531G(1), insert:

     (1A)    If a person has obtained protected carrier information in the person’s capacity as an entrusted public official, the person must not use the disclosed information for any other purpose whatsoever except for the preparation of proposals for the National Broadband Network.

(11)  Schedule 1, item 11, page 16 (after line 4), after subsection 531k(1), insert:

     (1A)    If a person has obtained protected carrier information in the person’s capacity as an entrusted company officer of a company, the person must not use the disclosed information for any other purpose whatsoever except for the preparation of proposals for the National Broadband Network.

(12)  Schedule 1, item 11, page 17 (lines 4 to 11), omit “subsection (1)” (wherever occurring), substitute “subsections (1) and (1A)”.

(13)  Schedule 1, item 11, page 17 (after line 23), after paragraph 531L(1)(c), insert:

           (ca)    the Court is satisfied that the conduct of an entrusted company officer can be attributed as a liability to the company after considering the following factors:

                   (i)    the actual or apparent scope of the entrusted company officer’s employment; or

                  (ii)    the actual or apparent authority of the entrusted company officer’s employment; and

(14)  Schedule 1, item 11, page 17 (lines 29 and 30), omit subsection 531L(2), substitute:

        (2)    Subsection (1) applies to:

             (a)    an entrusted public official in the same way as it does to an entrusted company officer; and

             (b)    an agency of the Commonwealth as it does to a company.

        (3)    An application under subsection (1) may be made at any time within 6 years after the contravention occurred.

Question agreed to.

I move opposition amendment (15) on sheet 5477:

(15)  Schedule 1, item 11, page 18 (lines 25 to 27), omit subsection 531P(1), substitute:

        (1)    The Minister must, by legislative instrument, make rules relating to the storage, handling or destruction of protected carrier information before the Commonwealth receives any protected carrier information.

This amendment seeks to ensure that the protected carrier information is not left lying around a Commonwealth department, a minister’s office or in the possession of entrusted officers who might have had access to the information. The insistence that the minister makes rules for the storage, handling and destruction of protected carrier information absolutely ensures the minister is responsible for the protection regime and its rigorous nature. Amendment 15 is a well thought through security matter that ensures network information is only used for the NBN process and not for other government projects that may seek to nationalise Australia’s telecommunications networks or seek to add additional licensed carrier conditions for the political gain of any government.

Question agreed to.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I move government amendment (15) on sheet PN285:

(15)  Schedule 1, item 11, page 17 (after line 30), at the end of section 531L, add:

        (3)    If:

             (a)    protected carrier information was given to an authorised information officer by a carrier; and

             (b)    the Federal Court is satisfied that an entrusted company officer of a company has contravened subsection 531K(1) or (3) in relation to the information; and

             (c)    the Court is satisfied that the carrier has suffered loss or damage as a result of the contravention; and

             (d)    the Court is satisfied that:

                   (i)    the entrusted company officer was an employee or agent of the company; and

                  (ii)    the entrusted company officer’s conduct was within the entrusted company officer’s actual or apparent authority as an employee or agent of the company;

the Court may, on the application of the carrier, make an order that the Court considers appropriate directing the company to compensate the carrier.

        (4)    An application under subsection (3) may be made at any time within 6 years after the contravention occurred.

        (5)    Compensation is not payable to a company under both:

             (a)    subsection (1); and

             (b)    subsection (3);

in respect of the same contravention of subsection 531K(1) or (3).

Question agreed to.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I move opposition amendment (16) on sheet 5477:

(16)  Schedule 1, item 11, page 19 (line 17), at the end of Part 27A, add:

Division 4—Ministerial advisory process

531R Purpose of Division

The purpose of this Division is to provide for processes to:

             (a)    ensure rigorous, independent and transparent advice is provided to the Minister in relation to the National Broadband Network.

             (b)    ensure proper expert advice is included in the process mentioned in paragraph (a); and

             (c)    guarantee public information about the National Broadband Network.

531S Expert Panel

        (1)    An Expert Panel to examine, consult and provide advice to the Minister in relation to proposals and tenders for the National Broadband Network is established by this section.

        (2)    The Expert Panel will provide rigorous, independent and transparent advice to the Minister to ensure that any decision, action or any transaction that may be undertaken as part of or related to the National Broadband Network Program is determined objectively and reflects a sound, principled, robust and durable involvement of the Commonwealth.

        (3)    The Minister must seek the advice of the Expert Panel on the evaluation of proposals for the National Broadband Network in relation to all the matters in subsection (4).

        (4)    The Expert Panel is to examine, publicly consult and provide advice to the Minister, with that advice to be publicly released within 7 days of being provided to the Minister, in relation to:

             (a)    options in relation to the nature, scope, cost and the potential benefits of credible forms of government intervention required to achieve the Government’s stated public policy objectives;

             (b)    the identification of existing assets and opportunities for improved performance and efficiencies, determination of priorities for action according to need and future forecasts, the planning of future public and private investments and the mechanisms to drive investment to where it is needed, and the establishment of a sound and complementary best practice public policy framework;

             (c)    the formulation and administration of the public policy framework within which the National Broadband Network proposal is to operate;

             (d)    the role, impact and any proposed variation to the telecommunications industry regulatory framework relevant to National Broadband Network proposals;

             (e)    requirements and actions that contribute to optimising the competitive tensions of the National Broadband Network tender process and which facilitate accurately designed and costed proposals;

              (f)    the adherence of the tender process to the better practice guidance and advice of the Auditor-General and the principles of fairness, transparency, probity and value for money;

             (g)    the implications of proposed actions, decisions and public funding on consumer choice, costs and protection, competition, private investment, inflation and national productivity;

             (h)    the role of government and its relationship with the private sector and existing private investment in the telecommunications sector;

              (i)    the nature of any compensation or other remedies required to address any detriment, economic loss or disadvantage to consumers, property holders, businesses and related interests;

              (j)    the future role, operation and responsibility for any network infrastructure likely to be rendered redundant, underutilised or excess to requirement as a result of National Broadband Network decisions and actions;

             (k)    the interaction with and revision of community service obligations and subsidies for services to disadvantaged areas and consumers;

              (l)    any dispute arising from the operation of this Act including but not limited to:

                   (i)    the formulation, content and administration of instruments created under this Act;

                  (ii)    the type, scope and presentation of information required to facilitate a competitive bid process;

                 (iii)    the handling, availability and use of protected information;

                 (iv)    the situation where a carrier believes it has wholly or substantially voluntarily satisfied a requirement to produce protected carrier information demanded in an instrument;

                 (iv)    the nature, conclusions and public release of the advice provided to the Minister by the expert panel.

        (5)    The Expert Panel is to be provided with such assistance as it requires from Commonwealth Government agencies and departments.

               Note:       Better practice in guidance  paragraph (4)(f) refers to the August 2007 report of the Auditor-General entitled “Fairness and Transparency in Purchasing Decisions (Probity in Australian Government Procurement) and Commonwealth Procurement Guidelines”.

531T Appointment of the Expert Panel

        (1)    Members (including the Chair) of the Expert Panel are to be appointed by the Minister by written instrument.

        (2)    In making appointments under subsection (1), the Minister must ensure that:

             (a)    he or she is satisfied that each member has knowledge of, or experience in, a field relevant to the objectives of the National Broadband Network;

             (b)    the Expert Panel is capable of objectively and competently evaluating and recommending a sound, principled, robust and durable involvement of the Commonwealth in the National Broadband Network;

             (c)    the analysis by the Expert Panel of possible options for Commonwealth involvement is rigorous, independent and transparent;

             (d)    the Expert Panel comprises members with expertise including but not limited to:

                   (i)    public policy formulation and evaluation;

                  (ii)    technical expertise including network architecture, interconnection and emerging technology;

                 (iii)    regulatory framework, open access, competition and pricing practice;

                 (iv)    private sector telecommunications wholesale and retail business experience;

                  (v)    contemporary broadband investment, law and finance;

                 (vi)    network design, technical option and functionality of the ‘last mile’ link to premises;

             (e)    specified appointees include:

                   (i)    the Australian Competition and Consumer Commission chairperson or delegate;

                  (ii)    the Productivity Commission chairperson or delegate;

                 (iii)    the Infrastructure Australia chairperson, nominee or senior executive;

                 (iv)    a consumer interest advocate selected from nominations provided by the Australian Telecommunications Users Group;

                  (v)    the Secretary of the Department of Treasury;

                 (vi)    the Secretary of the responsible Minister’s department;

                (vii)    any other expertise the Minister considers necessary to ensure value for taxpayer money;

              (f)    the Expert Panel will comprise a majority of appointees with private sector expertise;

             (g)    the Expert Panel is provided with such assistance as it requires from Commonwealth Government agencies and departments.

531U Interdepartmental and multi-agency committee

        (1)    The Minister may establish an interdepartmental and multi-agency committee to examine, consult and provide advice to the Minister.

        (2)    The interdepartmental and multi-agency committee membership is to comprise, but is not limited to, senior representatives from:

             (a)    the Australian Competition and Consumer Commission;

             (b)    the Productivity Commission;

             (c)    Infrastructure Australia;

             (d)    the Department of Treasury;

             (e)    the responsible Minister’s department;

              (f)    external relevant and competent expertise consistent with that listed in paragraph 531T(2)(d).

        (3)    The interdepartmental and multi-agency committee must provide advice to the Minister on any matter referred to it by the Minister consistent with the matters referred to in subsection 531S(4).

531V Disclosure

        (1)    The Expert Panel must prepare and maintain minutes of its meetings and publish a form of its minutes that ensure public disclosure of its deliberations and conclusions, recognising the public interest and investment involved while respecting commercial-in-confidence considerations and national security considerations.

        (2)    The Department of Broadband, Communications and the Digital Economy will work with the Attorney-Generals Department and other national security agencies to deal with any national security risk or consideration in determining what material is released as part of the public disclosure of the Expert Panels deliberations, analysis and conclusions.

531W Dispute resolution

        (1)    A protected network information provider or recipient may challenge the scope, content, adequacy, presentation, compliance with, safeguards and protections encompassed in the prescribed form.

        (2)    Disputes are to be notified in writing to the Minister.

        (3)    The Minister must cause the dispute notification to be published and referred to the Expert Panel for advice.

        (4)    The Expert Panels advice in relation to the dispute, the Minister’s assessment of the merit of the dispute and the Minister’s final determination of the matter must be published within 3 working days of a determination being made.

531X Minister’s directions

        (1)    The Minister may give written directions to the Expert Panel about its role, functions and performance as set out in section 531S.

        (2)    The Minister must have regard to the current telecommunications legislative and regulatory environments and the role, function and determinations of the Australian Competition and Consumer Commission in giving directions under subsection (1).

        (3)    Directions given by the Minister under subsection (1) must be of a general nature only.

        (4)    The Minister must cause any direction he or she gives under subsection (1) to be published and notified to prospective bidders within 3 working days of the direction being given.

        (5)    The Minister must not give directions about the content of any advice that may be given by the Expert Panel.

        (6)    The Expert Panel must comply with any direction given by the Minister under subsection (1).

        (7)    A direction given by the Minister under subsection (1) is a legislative instrument.

Lyn Allison (Victoria, Australian Democrats) Share this | Link to this | Hansard source

I move, on behalf of the Democrats, an amendment to that amendment:

Omit subparagraph 531T(2)(e)(iv), substitute:

                 (iv)    business and domestic consumer interest advocates;

The reason for the Democrat amendment to the opposition amendment is to remove the words ‘the Australian Telecommunications Users Group’ as a nominated participant on the expert panel and substitute it with what I think is a broader and better representation—that is, the words ‘business and domestic consumer groups’. ATUG represents business groups, whereas I consider that on this expert group there should also be some advice from domestic users. ATUG only represents half of the consumer groups concerned.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

We support the Democrat amendment. I think it is a sensible amendment. Our amendment aims to supplement the expert panel with additional expertise and rigour, placing greater emphasis on the development of good public policy—not this rushed sham of a job the minister presented to the Senate today.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

How can you say that and keep a straight face?

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

We can drag it on, or you can just let me get through and read this stuff so it is on the record. It doesn’t worry me. I’m happy to wait until 6.50.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

No, you’re not.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I’m not? I’ll perhaps be the judge of that. The amendment ensures rigorous, independent and transparent advice is provided to the minister in relation to the national broadband network, while ensuring proper expert advice is included in the process and a public guarantee about the information is provided to Australians about the national broadband network. This process needs further objective analysis, and the opposition will deliver this analysis through this amendment. The exclusion of the Productivity Commission, the ACCC and the government’s own Infrastructure Australia from any advisory capacity and scrutiny of the bid process and tenders is absolutely absurd.

The opposition believes that if the government is going to spend $4.7 billion of taxpayers’ funds then no amount of rigour in the analysis of the project is too much. The opposition understands that the minister’s career hangs on his ability to deliver what he has promised. I should repeat that, because it is absolutely, entirely true—the opposition is keen to ensure that the process is not held to ransom by the minister’s career but delivers value for taxpayers’ funds and does not push the price of broadband out of the reach of working families. There are deep concerns with the process as it stands, including the role and the make-up of the minister’s expert panel. It is manifestly inadequate in guiding a broadband project of such scale and complexity that potentially involves the spending of up to $4.7 billion in public funds.

Of concern is the lack of key involvement of bodies, as I said before, such as the ACCC, the Productivity Commission and Infrastructure Australia, which I note is the body established by the government to prioritise infrastructure projects of national importance. The expert panel needs to adequately reflect the nature of this project, and the minister must seek advice from the expert panel on a broad range of critical issues outlined in section 4. The expert panel is to be provided with necessary assistance from the Commonwealth agencies and departments to ensure they can provide the best possible advice to the minister. The tender process must also be conducted in strict compliance with advice from the Auditor-General in relation to the principles of fairness, transparency, probity and value for money.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that the Democrat amendment moved by Senator Allison to opposition amendment (16) be agreed to.

Question agreed to.

The Temporary Chairman:

The question now is that opposition amendment (16) on sheet 5477, as amended, be agreed to.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.