Bruce Billson (Dunkley, Liberal Party, Shadow Minister for Sustainable Development and Cities) Share this | Hansard source

I will pick up where I left off last night and briefly outline that the Telecommunications Legislation Amendment (National Broadband Network Measures—Network Information) Bill 2009 is designed to extend the reach and duration of a power available to the minister to demand network related information of telecommunications companies and utilities with a view to feeding this information into the federal Labor government’s national broadband idea mark 2. That essentially is what this legislation is about. Last night, before the adjournment debate commenced, I was characterising how the first instalment of this show-and-tell legislation was rescued by the coalition and got Senator Conroy out of a difficult hole of his own making. I fear that he has learnt nothing from that exercise and the federal Labor government will make the same mistakes it made last time around.

Stakeholders were not consulted with the first instalment of the show-and-tell bill. Now, on the second instalment, they still have not been consulted. Thankfully, through the Senate inquiry and the good work of the shadow minister for communications, my friend and colleague Senator the Hon. Nick Minchin, and his dedicated staff, there has been some consultation. Thank goodness for that. It is from that consultation that we will be bringing forward some amendments that highlight the concerns that arose. While indicating they will cooperate with the government on the provision of the necessary information, stakeholders have indicated that they have a number of concerns about the potentially broad and onerous requirements that could be imposed on them by the minister under this legislation. As I said at the beginning, this is an expansion of that power and a lengthening of the duration for which it is available. More particularly, the data that can be demanded from telcos and utilities is now being applied for a different purpose. In NBN mark 1 the failed, shambolic request for proposal process, which was actually a search for a policy by this federal Labor government, collapsed. At that time this show-and-tell legislation was designed to ensure that potential bidders for NBN mark 1 had available to them information that enabled them to construct a bid.

With that proposition now discredited, with that idea, that sound bite from the federal Labor government now in the dustbin of history, we are now onto NBN mark 2. Now, though, the purposes of that data will be to assist the government to shape up its sound bite about a new kind of National Broadband Network mark 2 yet to be defined, with the detail, about as much as you would expect, written in crayon on the back of an envelope. But now there is to be an expansion of that show-and-tell power, a greater range of respondents to include utilities and an extension of the duration for which that power will be exercised.

The Senate Standing Committee on Environment, Communications and the Arts received nine submissions to its inquiry into this bill and had a public hearing in Canberra. Submissions were received from Telstra, Optus, the Energy Networks Association, the Business Council of Australia, the Australasian Railway Association, the Water Services Association of Australia, Integral Energy, the Privacy Commissioner and Unwired. The evidence presented to the committee highlighted a number of concerns with the measures proposed in the bill. Serious concerns related to protection of the information and in ensuring that no competitive advantage is gained by NBN Co., that is, Rudd Com—the government funded potentially broadband provider. That is its moniker at the moment. We do not know where it will be in the marketplace, armed and equipped with its competitors’ information. So even while the federal Labor government fumbles around with what it intends to do—it is happy to hock the nation through a debt funded proposal that it cannot even describe—it will have in its possession the data of its competitors. There is a serious concern about how that information will be protected and a serious concern about whether competitive advantage will be soaked up by NBN Co. through the proposals in this bill, which potentially give that company access to utility and carrier network information over the next 10 years—the very information that many of those providers, those utility and telco providers, view as intellectual property. The way they have designed and laid out their network will now be available to NBN Co. If it ever gets to a point where it does what the press releases say it may do, it may well be out in the marketplace competing with the very companies it is getting its information from.

However, it is important to note, given the prospect of compulsion under this bill, that there was no evidence presented to the committee inquiry into this current bill that carriers and utilities would not be prepared to cooperate with the government in providing information for the implementation study on a voluntary commercial basis. There are already some commercial disciplines that govern this kind of exchange of information where companies, enterprises and agencies are in discussion and where they have an overlap of interest, particularly at this implementation study stage. Implementation study is a nice term: it sounds a whole lot better than, ‘We have no idea what we are going to do but let’s hope we can work out something.’ That is synonymous with implementation study when it comes to the National Broadband Network. But the bill overlooks commercial disciplines and practice that would be perfectly suitable to the submitters to the Senate committee and that represent normal practice in the commercial world. But, no, there is a compulsion power, a waddy hanging over the head of utility and telco providers and of asset holders, hanging there saying, ‘If you don’t do what we want we can clean you up through a legislative tool.’

It is also worth highlighting some of the other concerns of stakeholders—for instance, consultation time lines. I have touched on the fact that stakeholders, including Integral Energy, the Energy Networks Association and the Water Services Association of Australia, raised concerns with the time lines in the bill, both in relation to the consultation on draft instruments—those instruments that would enable the minister to exercise the power this seeks to give him—and the time line for the provision of required information. Given the age and the complexity of the information of some of these utilities, we are sympathetic to those concerns.

On the issue of immunities, under this bill civil penalties apply for carriers and utilities that do not provide accurate information. Given that some utilities are required to provide information on old and legacy assets, some of which have been transferred through a number of enterprises, trading organisations and companies, they have rightfully and quite understandably expressed concern about their potential exposure to civil penalties, under the potentially onerous requirements, for honest and genuine errors in the information provided. So even doing the right thing—doing the best that they can with the material available to them—there is still this risk of penalty. We do believe that is a valid point and should be considered further by the government.

I turn now to the issue of cost recovery mechanisms. Utilities also raised with the Senate committee the issue of the costs associated with the provision of the information that may be compelled by the government and the actual ongoing costs associated with the potential use of that infrastructure. In the Bills Digest that canvassed these issues I recall a figure of around $100,000 or that order being the cost to the Commonwealth of exercising this instrument. The Commonwealth is the one saying, ‘We have the show and tell power; cough up this material.’ It is the respondents who have the task of compiling that material, bringing it together and presenting it in the format that has been required or in some cases demanded of them. Where are those costs going to sit? The government’s stated intention is to seek information on a cooperative and commercial basis, but there is currently no mechanism that requires consideration of compensation under a mandatory demand for the provision of information.

The consultation and the committee’s work on the bill raised concerns about the sunset period and the provision of information to NBN Co. The bill contains two amendments regarding the person or persons who can have access to the network information. It talks about clearly distinguishing the length of application of the provisions under this bill and a contrast between the implementation study and the NBN Co. So it distinguishes the length of application of the provisions between those two segments.

On the provisions relating to the implementation study sunset on June 2010; it is worth remembering that the implementation study is the ‘gee whiz, what are we actually going to do’ process. This is about hopefully putting sound policy behind the sound bytes—where the headlines actually need some hard work done about what is going to happen. The provisions in the bill relate to that implementation study—that sunset and that actual hard work of turning publicity material into some purposeful and practical plan. But the provisions permit the disclosure of information to NBN Co. to operate for 10 years. So the NBN Co.—in whatever guise it might pop out from the implementation study, on whatever posture the implementation study might recommend, and on whatever competitive basis it seeks to engage and in some cases take customers off its competitors—can require information to be provided by those very competitors for 10 years under this bill.

There are a number of other concerns with the bill—for example, the extent to which information can be compelled and used over the course of the 10-year period, particularly in relation to that issue I touched upon earlier of competitive neutrality. The concerns about competitive neutrality are minimised if this legislation is limited to the implementation study only. Why the government would want show-and-tell punitive powers to demand information from potential competitors well into the future on a plan that has not yet been conceived, has not been canvassed and is not publicly available. We do not know what the government actually wants to do. But in this bill it wants to be able to take information from its competitors for a 10-year horizon with no clarity about what uses those pieces of information and that intelligence from competitors will actually be put to, because we do not know what NBN Co. looks like. No-one knows what it looks like, but here it has coercive powers to demand information from potential competitors. Why would the government not, in a more sober and measured approach, apply this legislation to the implementation study only? For these reasons, serious questions have been asked about the powers given to the minister in this bill.

We believe attempts should be made to restrict the application of this bill to the implementation study only. At least then everybody will know what the government is on about and there will be some flesh on the bones of this—well, they are not even really bones at this stage—and some content behind the press releases, the hype and the big words. The federal Labor government, at this stage, are promising the world when all they are actually doing is looking to borrow someone else’s atlas. We do not know quite what they will end up doing at the end of the day. So for these reasons we think the bill should be applied to the implementation study only. If the implementation study concludes that the rollout will occur and this sensitive information is required then let the government make the case, come back to this parliament with its proposal and we can consider just what additional information is required and can be coercively obtained by the government, given that its NBN Co. is out in the marketplace potentially competing with the very people it is demanding that information from.

The minister should not be given such broad, long-term powers in relation to sensitive network information prior to the completion of the implementation study, particularly given there is such scarce detail about exactly how any services will be rolled out, how any network might be built and what the implementations may be for existing infrastructure. As many have heard me say before, what is going to happen to the dangling DSLAMs—the hardware that is out in the marketplace now providing broadband services? Will it just be left dangling? We do not know. We do not know the prices that consumers will be expected to pay for any NBN Co. service. We have no idea of the commercial viability of NBN Co. We have plenty of friends in that regard; the government has no idea either.

At this point I foreshadow second reading amendments, which we have circulated in the chamber, that call on the government to limit the application of this bill to the implementation study only. We ask the government to consider carefully these amendments that the coalition is putting forward. Just as the coalition was instrumental in saving Senator Conroy from himself the last time this NBN show-and-tell legislation came before the parliament, we again ask Senator Conroy to recognise the virtue of our positive and constructive contribution here and ask that the government embrace these issues. The amendments we will move read:

That all words after ‘That’ be omitted with a view to substituting the following words:‘while not declining to give the bill a second reading, the House is of the opinion:

(1)

that given the lack of certainty about whether Labor’s debt-laden NBN proposal will even proceed, the government should amend the legislation to limit the application of this bill to the implementation study only; and

(2)

that the government should be condemned for its irresponsibility in refusing to conduct any cost benefit analysis for its NBN proposal and as such, risking billions of dollars of taxpayer funds on a project that may not even be commercially viable.’

If the government opposes this amendment, then the coalition will seek to improve the bill in the Senate in line with the evidence presented to the Senate committee and the remarks of coalition senators in the committee report—primarily through limiting the measure provided for in this bill to the implementation study only. Our second reading amendment also condemns the government for their blatant irresponsibility in refusing to conduct a cost-benefit analysis.

Of great concern to the coalition is federal Labor’s steadfast refusal to conduct any cost-benefit analysis for their NBN proposal. They are treating taxpayers with contempt and putting billions of dollars at risk with the NBN mark 2 idea. Their proposal to build a national broadband network should be based on firm evidence that substantiates why such a massive taxpayer spend is warranted, justified, and cost effective. The government’s arrogant approach should worry all Australians.

The coalition has had a long-held commitment, and proven outcomes, on enhancing the availability, speed and affordability of broadband to all Australians. That focus has been on underserviced communities, those for whom competitive arrangements and market viability might deny them the performance, affordability and availability of broadband that might be more common in urban areas. That idea of focusing on underservicing was an idea that sat behind the OPEL initiative, an initiative designed to invest hundreds of millions of dollars to address where the market had failed and where communities in outer metropolitan, rural and regional Australia were being denied access to metro comparable broadband. Labor condemned that. It said OPEL was wrong. That did not stop Senator Conroy fronting up at photo opportunities to claim credit for some of the elements of the OPEL plan, in particular the WiMAX wireless technology. He is out there lauding that technology he characterised as a dog when he was in opposition.

It is quite breathtaking how, in the whole area of broadband, we cannot quite see a coherent plan from the Rudd Labor government. What we can see is plenty of politicking but no plan. Since the election of federal Labor, I would have to say the Commonwealth has been a net negative on enhancing the performance, availability and affordability of broadband in Australia. The confusion, the flip-flopping and the fog that has surrounded these politically motivated publicity announcements around broadband have spooked investors. Investors do not know what is going on. There has been no clear articulation about how federal Labor’s big spending plan will impact on their assets and their businesses. It has caused a reluctance to invest that has put a stop on many projects that would otherwise have been not only undertaken but concluded by now. This government has denied those kids in rural and regional Australia who would have been able to participate in their studies with access to more affordable, higher speed broadband—whether it be government funded like OPEL—and nothing has been put in its place. Those improved services that the coalition proposed would have addressed areas of market failure, through targeted taxpayer investment, and would have assisted students in outer metropolitan, rural and regional Australia and health providers looking at e-health—those who want to consider telecommuting and the opportunities that are there—but they have all missed out.

The small businesses that could have benefited from affordable higher performance, more readily available broadband have missed out under this government. A plan that would have delivered them a better outcome was junked by federal Labor instead of people being able to enjoy those benefits now. Let us pick the student who would have been able to tap in to a high-speed more affordable broadband service now but who will have finished their education before it is in place. If they were in year 7 this year, they would have left secondary school by the time any kind of clarity comes out of what federal Labor is doing, let alone have any access to it. A pre schooler might see something out of what federal Labor is on about by the time they finish their education.

So long term, so vague, so poorly planned is this Labor idea, this Labor sound byte. They have PR, media spin, headlines, stunts, and a political agenda from federal Labor, instead of practical progress on improved services, affordability, better accessibility for broadband here and now, taxpayer funded and targeted to areas of market failure, private businesses prepared to invest their own money—prepared and willing to do so because there is clarity in policy settings. They lost that when the election invited a Labor administration to come to Canberra and, in return, broadband users have got absolutely nothing.

Senator Conroy is proud of going around bagging the coalition for its various plans. What he does not tell you is that he picks out components when he does his little mathematical gymnastics. He talks about plans that over more than a decade evolved as the technology evolved. Why on earth would you stick with policy instruments when the technology has moved forward? The technology requires policy to move forward, as it did with the coalition. But Senator Conroy is critical of the coalition and where policy has evolved as the technology has improved. The great irony is the only program that may be delivering any help at all through government activity at a Commonwealth level with broadband is a program that the coalition put in place.

People are starting to wake up to what federal Labor and Senator Conroy mean for broadband in Australia, and they are waking up with a fright. They have heard the dream but they are realising when they wake up what a frightening nightmare all of this vagueness, lack of clarity and fog is actually producing. There is a critical need for a cost-benefit analysis. Look at and listen to what federal Labor says and then at what they actually do. The Prime Minister, when he spoke to the heads of agencies, said:

Policy innovation and evidence-based policy making is at the heart of being a reformist government. Policy design and policy evaluation should be driven by analysis of all available options and not by ideology …We are interested in facts, not fads … In fostering a culture of policy innovation we should trial new approaches and policy options through small scale pilot studies.

Let’s apply the Prime Minister’s benchmark to broadband. Where is the analysis? Where is the innovation? Where is the meaningful analysis when all we get is mantra? Where are the small-scale pilot studies? We have a $43 billion whopper here without any data to back it up.

The head of Treasury, someone who is often quoted by the Prime Minister when it is convenient, made a contribution last week. He said:

Government spending that does not pass an appropriately defined cost-benefit test necessarily detracts from Australia’s wellbeing.

Has there been a bigger detraction from Australia’s wellbeing than the distraction of Labor’s NBN nonsense? There is still a lack of clarity. This needs to be addressed and that is why we have these amendments before the chamber. There is a growing and ever-expanding list of people calling for transparency from this government. They are calling for that cost-benefit analysis. They are calling for the Prime Minister to walk the talk, for the Treasury officials to have an influence over this process and for the instruments, whether they be the Productivity Commission, Infrastructure Australia or the pathway outlined by the coalition in the Senate—any of those options would work—to do a transparent cost-benefit analysis.

In formally moving these amendments circulated in my name and seconded by my friend and colleague at the table we again ask the government: please be open, please be fair dinkum about this and please consider our amendments. I move:

That all words after “That” be omitted with a view to substituting the following words:“while not declining to give the bill a second reading, the House is of the opinion:

(1)

that given the lack of certainty about whether Labor’s debt-laden NBN proposal will even proceed, the Government should amend the legislation to limit the application of this bill to the implementation study only; and

(2)

that the Government should be condemned for its irresponsibility in refusing to conduct any cost benefit analysis for its NBN proposal and as such, risking billions of dollars of taxpayer funds on a project that may not even be commercially viable.

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