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

by leave—I move amendments (1) to (8) on sheet 5477:

(1)    Schedule 1, page 4 (after line 15), after item 10, insert:

10A Section 7

Insert:

voluntary disclosure arrangement has the meaning given by section 531FA.

(2)    Schedule 1, item 11, page 4 (line 23), omit “A carrier”, substitute “An eligible carrier”.

(3)    Schedule 1, item 11, page 5 (after line 17), at the end of the text box in section 531A, add:

• If a carrier enters into a voluntary disclosure arrangement:

(4)    Schedule 1, item 11, page 5 (after line 22), after the definition of authorised information officer in section 531B, insert:

eligible carrier means a carrier other than a carrier in relation to which section 531FA applies.

(5)    Schedule 1, item 11, page 8 (line 1) to page 9 (line 5), omit “carrier” (wherever occurring), substitute “eligible carrier”.

(6)    Schedule 1, item 11, page 10 (line 10), omit “Carriers”, substitute “Eligible carriers”.

(7)    Schedule 1, item 11, page 10 (line 12), omit “Carriers”, substitute “Eligible carriers”.

(8)    Schedule 1, item 11, page 10 (lines 15 to 24), omit “carrier” (wherever occurring), substitute “eligible carrier”.

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

We will not be supporting the opposition amendments. I would go into a detailed reason but I am conscious of the time so I will not.

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

I will explain why I think the government should be supporting these amendments. This is a definition issue, and I am a little surprised that the government opposes these. If you look at the integrity of this process, these amendments, which seek to clarify and change the definition from ‘carrier’ to ‘eligible carrier’, make absolutely perfect sense: for only those who are involved in this process to be given the opportunity to participate in the details and the provisions of this particular bill. In my view, it would be totally unreasonable for carriers, in the widest sense, to have access to sensitive commercial information, which they could have quite simply by giving some indication that they were dealing themselves into the process. Were they to do that then they would have the opportunity to get access to that information. I think that for the integrity of the process, and to address and to firm up those matters that the minister is seeking to address in other parts of the government’s amendments and in the bill itself, this would be an entirely appropriate group of amendments to be accepted. I think that it would provide for those that I am sure the minister is hoping will be active participants in this process, to actually enable the tender process to have integrity and a large number of players. I would have thought that, considering the quickest way to ensure that they were active participants in this process and indeed that this matter would be dealt with expeditiously in line with the government’s own July deadline, you would want to maximise the confidence of those who will be legitimately tendering by indicating to them that the integrity of the process will be maximised, not undermined, by the definition of ‘carrier’ versus ‘eligible carrier’. I would encourage the government to review the decision to oppose this because I think it does actually support the integrity of their own bill.

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 table a supplementary explanation memorandum relating to the government amendments to be moved to this bill, the memorandum having been circulated in the chamber on 13 May 2008, and I seek leave to move government amendments (1), (6), (7), (8), (10), (11), (12), (13) and (14) on sheet PN285 together. We have pulled out government amendment (9):

Leave granted.

I move:

(1)    Schedule 1, item 11, page 5 (line 1), after “disclosed”, insert “or used”.

(6)    Schedule 1, item 11, page 11 (lines 7 to 9), omit subsection 531G(1), substitute:

        (1)    If a person has obtained protected carrier information in the person’s capacity as an entrusted public official, the person must not:

             (a)    disclose the information to another person; or

             (b)    use the information.

(7)    Schedule 1, item 11, page 11 (line 10), after “prohibition”, insert “of disclosure”.

(8)    Schedule 1, item 11, page 13 (after line 37), after subsection 531G(3), insert:

     (3A)    Each of the following is an exception to the prohibition of use in subsection (1):

             (a)    the information is used for the purposes of the consideration by the Cabinet of:

                   (i)    a matter preparatory to the publication of a designated request for proposal notice; or

                  (ii)    the approach to be taken in relation to the consideration of submissions that could be made, after the publication or proposed publication of a designated request for proposal notice, in response to an invitation set out in the notice; or

                 (iii)    action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

                 (iv)    a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

             (b)    the information is used for the purposes of the consideration by the Minister of:

                   (i)    a matter preparatory to the publication of a designated request for proposal notice; or

                  (ii)    the approach to be taken in relation to the consideration of submissions that could be made, after the publication or proposed publication of a designated request for proposal notice, in response to an invitation set out in the notice; or

                 (iii)    action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

                 (iv)    a matter that is ancillary or incidental to a matter referred to in subparagraph (i), (ii) or (iii);

             (c)    the information is used for the purposes of advising:

                   (i)    the Cabinet; or

                  (ii)    a Minister; or

                 (iii)    a Secretary of a Department;

                      about:

                 (iv)    a matter preparatory to the publication of a designated request for proposal notice; or

                  (v)    the approach to be taken in relation to the consideration of submissions that could be made, after the publication or proposed publication of a designated request for proposal notice, in response to an invitation set out in the notice; or

                 (vi)    action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

                (vii)    a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

             (d)    the information is used for the purposes of the Australian Security Intelligence Organisation, the ACCC or the ACMA giving advice to:

                   (i)    the Commonwealth; or

                  (ii)    a Minister; or

                 (iii)    a committee established under the executive power of the Commonwealth;

                      in relation to:

                 (iv)    a matter preparatory to the publication of a designated request for proposal notice; or

                  (v)    the approach to be taken in relation to the consideration of submissions that could be made, after the publication or proposed publication of a designated request for proposal notice, in response to an invitation set out in the notice; or

                 (vi)    action to be taken by the Commonwealth or a Minister in relation to a proposal set out in a submission made in response to an invitation set out in a designated request for proposal notice; or

                (vii)    a matter that is ancillary or incidental to a matter referred to in subparagraph (iv), (v) or (vi);

             (e)    the information is used for a purpose specified in the regulations;

              (f)    the information is used for the purposes of:

                   (i)    giving advice to an authorised information officer in relation to action to be taken by the officer under section 531H; or

                  (ii)    assisting an authorised information officer in relation to the exercise of the officer’s powers under section 531H;

             (g)    the information is used for the purposes of:

                   (i)    enabling an authorised information officer to make a decision under section 531H; or

                  (ii)    enabling an authorised information officer to disclose the information under section 531H;

             (h)    the carrier who gave the information to an authorised information officer has consented to the use of the information;

              (i)    the information has been made publicly known by:

                   (i)    the carrier who gave the information to an authorised information officer; or

                  (ii)    a person authorised by the carrier to make the information publicly known;

              (j)    the use is authorised by or under a law of the Commonwealth, a State or a Territory.

      (3B)    Paragraph (3A)(e) ceases to have effect at the end of the period of 12 months beginning on the day on which this subsection commenced.

(10)  Schedule 1, item 11, page 15 (line 30), at the end of subsection 531J(1), add “or a decision to use information under subsection 531G(3A)”.

(11)  Schedule 1, item 11, page 15 (line 34), after “531H(1)”, insert “or a decision to use information under subsection 531G(3A)”.

(12)  Schedule 1, item 11, page 16 (lines 2 to 4), omit subsection 531K(1), substitute:

        (1)    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:

             (a)    disclose the information to another person; or

             (b)    use the information.

(13)  Schedule 1, item 11, page 16 (line 5), after “prohibition”, insert “of disclosure”.

(14)  Schedule 1, item 11, page 17 (after line 2), after subsection 531K(2), insert:

     (2A)    Each of the following is an exception to the prohibition of use in subsection (1):

             (a)    the information is used for the purposes of:

                   (i)    the consideration by the company of whether to make a submission in response to an invitation set out in a designated request for proposal notice; or

                  (ii)    the preparation of a submission by the company in response to an invitation set out in a designated request for proposal notice; or

                 (iii)    if the company has made a submission in response to an invitation set out in a designated request for proposal notice—the consideration by the company of whether to vary the submission; or

                 (iv)    if the company has made a submission in response to an invitation set out in a designated request for proposal notice—the preparation by the company of a variation of the submission;

             (b)    the carrier who gave the information to an authorised information officer has consented to the use of the information;

             (c)    the information has been made publicly known by:

                   (i)    the carrier who gave the information to an authorised information officer; or

                  (ii)    a person authorised by the carrier to make the information publicly known;

             (d)    the use was authorised by or under a law of the Commonwealth, a State or a Territory.

I understand that these amendments are being supported without (9) in.

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

That is indeed so, yes.

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

I thank the opposition for their support.

Question agreed to.

I will now move to the next block. I will be moving amendment (4) separately. I now move government amendment (2) on sheet PN285, which I understand is also being supported by the opposition:

(2)    Schedule 1, item 11, page 5 (lines 20 to 22), omit the definition of authorised information officer in section 531B, substitute:

authorised information officer means:

             (a)    the Secretary of the Department; or

             (b)    a Deputy Secretary of the Department; or

             (c)    an individual:

                   (i)    who is an SES employee in the Department; and

                  (ii)    whose duties relate to the National Broadband Network Task Force; or

             (d)    a person for whom an appointment as an authorised information officer is in force under section 531M.

Question agreed to.

by leave—I move the two outstanding amendments, being (9), which goes to schedule 1, item 11, and also (4), on sheet PN285, which I understand the opposition are opposing:

(4)    Schedule 1, item 11, page 7 (before line 32), before paragraph (a) of the definition of protected carrier information in section 531B, insert:

           (aa)    any information that was given by a carrier to an authorised information officer during the period:

                   (i)    beginning on 27 February 2008; and

                  (ii)    ending 12 months after the commencement of this Part;

                      where, after the information was given, an authorised information officer gave the carrier a written undertaking, on behalf of the Commonwealth, that:

                 (iii)    after the commencement of this Part, the information would be treated as protected carrier information for the purposes of this Part; and

                 (iv)    the information would not be disclosed by an authorised information officer before the commencement of this Part; or

(9)    Schedule 1, item 11, page 14 (after line 3), after subsection 531G(4), insert:

     (4A)    An entrusted public official is not required to give a carrier an opportunity to be heard in relation to a decision to use information under subsection (3A).

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (9) and (4) be agreed to.

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

The opposition opposes these amendments. I am mindful of the time that is left open to us. We oppose amendment (4) because we believe that our amendment (9) is far stronger, superior and comprehensively deals with the voluntary protected carrier information. We are probably dealing with a bit of them together.

Had the integrity of the process in relation to the voluntary information been included in the first place, we probably would not have needed this bill because that would, on its own, have provided the integrity of the process that the minister was trying to attain. That is why we have argued from day one that this bill was not necessary to the extent that the minister has himself required a legislative instrument to deal with something that we think could have been dealt with on a voluntary basis, which would have provided the information that his government wanted and the protection for the industry, which then would have willingly provided the information that would have been required by the government and the panel et cetera to make a rational and informed decision.

In some respects the government has almost, in a timing sense, fallen on its own sword. I do not want, as I say, to delay the process, but we do oppose government amendment (4). We do not think it goes far enough. We do not think it deals effectively with the effective use application sanction for misuse of information as our amendment (9) does.

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

It would be helpful if both the minister and the opposition member could explain the differences between and the reasons for these amendments. I ask this because we have only received them both this morning and have not had the time to work through them adequately. And it is the normal practice in this place, as I understand it, for there to be arguments put for amendments as they are being tabled. I have no idea whether the opposition’s amendment is superior to the government’s, so it would be helpful if the government sold its amendment somewhat.

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

I appreciate the point you are making. The reason for speed at the moment is that, as they have the numbers, the opposition intend to put in some amendments that the government does not agree with. This will require the bill to go over to the other place and then be bounced back. If we do not complete that either now or, at the latest, tomorrow—tomorrow morning will be a difficult time since, as you would know, often there is no government business in the morning—the actual bill will not pass. If this bill does not pass it will seriously jeopardise the capacity for the tender to take place. We do not sit again until quite late in June, and that will seriously derail the process.

I apologise for the brevity of the discussion here, but we believe our amendments adequately cover the issues that were raised by the Senate committee. We have a genuine disagreement with the opposition about it, but we believe we have crafted amendments which genuinely are strong enough to deal with the issues raised in the Senate committee. Unfortunately, as I said, time is precious. To facilitate the tender process, we need to get this bill through to the other place so that it can then come back for further debate. I am not sure if that truly solves your problem—I suspect it may not—but we are hampered by the timetabling at the moment.

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

I am not entirely sure why I am speaking to the government’s amendment! But from any reasonable reading of the two amendments, clearly the opposition’s amendment in relation to this matter strengthens the integrity of everything that underpins this bill. We have gone further than the government because we did not think the government were providing the appropriate level of protection for voluntary information. If you read our amendment you will see that it strengthens that. And we are a bit surprised that the government have not taken the opportunity to support this amendment which, in a perverse way, will lead to a far greater inflow of the information that they, the expert panel and others require to make a decision. Indeed, if you do not strengthen this particular aspect of it, there is a very real risk that the information will not be provided in a timely sense, or without some considerable stick, because of the concerns of the carriers—now described as ‘eligible carriers’. That is the reason why we believe our amendment strengthens this bill and will speed the process up. We think the government’s amendment, perversely, will actually hinder the process.

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

The opposition amendments are opposed because they are technically flawed; they are unnecessary because they are already covered by a number of government amendments, as I have already said; and they do not actually appear to guarantee provision of sufficient information voluntarily. They actually fall into the trap of some providers. But, then, that is not a surprise.

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

I am a bit surprised that, at this late hour, the minister is making this description of these amendments, because clearly that is not and could not be and will not be the situation. The issue with the government’s amendments from the outset has been that they do not provide the appropriate levels of protection that we believe are fundamental to this bill. Our amendments are well drafted and they achieve what is required.

Progress reported.