Nick Minchin (SA, Liberal Party, Leader of the Opposition in the Senate) Share this | Hansard source

I inform the Senate that it is the opposition’s very strong view that the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009 should remain subject to the Senate’s order for the production of documents, that the order has not been complied with and that the Senate should not consider this bill until the government does comply with this order. Therefore, the opposition will oppose this motion. The government has treated the Senate with contempt over this matter and should not be relieved of the burden of complying with this order. The Senate order from which the government is seeking to exempt the current bill was adopted by the Senate on 13 May 2009. The order noted that the Minister for Broadband, Communications and the Digital Economy had shown contempt for the Senate as a result of his failure to comply with the Senate order of 4 February 2009 which called for the production of documents relating to the National Broadband Network tender process. The order then called on the ACCC’s formal report on the NBN proposals to the NBN panel of experts and the final report provided to the government from the NBN panel of experts on submissions to the NBN process to be provided to the Senate by 6.50 pm on 13 May 2009.

The Senate agreed that, should the minister fail to comply with this deadline, further consideration of NBN related legislation—any NBN related legislation—would be listed for debate on the sitting day after these documents were provided. The Senate’s motivation for adopting the May order was quite straightforward: the government’s justification for breaking its election promise to contribute $4.7 billion to a fibre-to-the-node network and committing no less than $43 billion to a fibre-to-the-premises rollout was that the expert panel, with advice from the ACCC, had recommended that it do so. The government went out of its way to rely on the expert panel and its report as justification for this dramatic and extraordinarily expensive policy change. Thus the Senate properly decided that it wanted to examine the documents before considering any NBN related legislation.

Until this week, some five months after the Senate agreed to this order, the government has not even mentioned this Senate order aside from calling it a stunt. They have not pushed the case for urgency on the Telecommunications Legislation Amendment (National Broadband Network Measures—Network Information) Bill 2009 before the Senate nor discussed with any senators how they could meet the terms of this order within the constraints of commercial sensitivity. Upon introduction of this bill in the Senate, its consideration was adjourned until the provision of the documents specified in the order.

Now the Clerk of the Senate has had a look at the content of the second reading speech and concluded, as has the coalition, that there is absolutely no doubt that this bill relates to the National Broadband Network. For a start, the government itself asserts that this bill stems from its discussion paper entitled ‘A National Broadband Network: regulatory reform for 21st-century broadband’, which was released on 7 April this year when it announced its NBN mark 2 proposal. Secondly, the government is now arguing that this NBN discussion paper satisfies the requirements of the statutory review required of Telstra’s operational separation. So it has deliberately linked the structure of Telstra, the subject of this bill, to its NBN. Thirdly, there are over 150 references to the National Broadband Network and NBN Co. in the explanatory memorandum and second reading speech.

This evening the minister himself could not help but refer repeatedly to the National Broadband Network in arguing that this bill had nothing to do with the National Broadband Network. So there can be no denying that this bill is related to the NBN. Everyone knows this bill is about holding a gun to the head of Telstra in order to force it to help make the NBN viable. We all know that the government cannot afford to have its NBN compete with Telstra and that it needs to acquire Telstra’s assets for its NBN to work—hence this bill.

When announcing the introduction of this legislation and the extraordinary change of policy in regard to the separation of Telstra, Senator Conroy gave us no doubt about the link between this legislation and the NBN when he outlined Telstra’s very dubious choices under this bill. Senator Conroy stated:

For example, it—

structural separation—

may involve the creation of a new company into which Telstra could transfer some of its fixed-line assets.

Alternatively, it may involve Telstra progressively migrating its fixed-line traffic to the NBN over a period of time and under set regulatory arrangements, and for it to sell or cease to use its fixed-line assets on an agreed basis.

He went on to say:

This approach will ultimately lead to full structural separation over time.

Such a negotiated outcome would be consistent with the wholesale-only, open access market structure to be delivered through the National Broadband Network.

Minister Albanese in his second reading speech on this bill in the House of Representatives said:

Our commitment to a wholesale-only model for the NBN will deliver structural reform in the industry in the longer term. However, the government considers it vital to ensure that, during the transition to the NBN, the existing regulatory regime generates outcomes in the interest of consumers and businesses.

He also said:

The government has commenced constructive discussions with Telstra on how NBN Co. and Telstra could work collaboratively towards the NBN. We believe that we can work towards achieving a solution in the national interest that also meets the interests of Telstra and its shareholders.

The link between this bill and the NBN is paramount. The explanatory memorandum, on page 8, is clear about the government’s intentions:

As the nation moves to superfast broadband it is the Government’s clear desire for Telstra to vertically structurally separate, on a voluntary basis—

hear, hear!—

in the transition to the NBN to be consistent with the structure of NBN Co.

I could go on with, as I said, more than 150 examples from the explanatory memorandum about how this bill relates to the NBN. It is therefore clearly subject to the existing order of the Senate and should not be excluded.

Senator Conroy has only realised in the last week that the Senate cannot be taken for granted and that it will not be a rubber stamp for his poor policy decisions, especially given the significant lack of detail. It is only within the past four days that Senator Conroy has started to nuance his discussions about this bill away from the NBN, although he failed miserably tonight to separate his bill from the NBN. Until last week, Senator Conroy was quite explicitly tying this bill to his National Broadband Network. In a doorstop interview last week Senator Conroy said, in relation to the legislation:

What we need is certainty for Telstra investors, the market in general so that we can get on with delivering a world class broadband network to all Australians.

As we have seen through the Senate inquiry into this bill, it is not just the coalition and the Clerk of the Senate who recognise that this bill is inextricably linked to the NBN. The evidence presented to the committee from those supportive of the legislation left coalition senators in no doubt that these legislative proposals are inextricably linked to the NBN. The Executive Chairman of the Competitive Carriers Coalition, David Forman, confirmed this during the Senate committee hearing when he said, in response to a question from Senator Birmingham, who is in the chamber tonight:

If you suggested to me that the NBN was likely to succeed in the absence of this legislation I would suggest that that is a pretty big bet.

The investment company Maple-Brown Abbott described this bill as:

… a high risk strategy to deliver the NBN and more competition in the telecommunications sector. It runs the risk of damaging Australia’s sovereign risk rating as well as stifling investment and innovation in the telecommunications sector. It places too much power in the hands of the ACCC.

The reason that we, the opposition, lodged this return to order initially in February is that it was obvious that the government was hiding behind its tender process to avoid answering any questions about its now abandoned $4.7 billion fibre-to-the-node election commitment. The minister took on notice at estimates question after question about the NBN mark 1, using the cover of the tender process to avoid answering any questions about the $20 million tender process. When the government officially abandoned NBN mark 1, it announced NBN mark 2 and made it explicitly clear that it had, in large part, based its decision on the report of the expert panel, as advised by the ACCC.

On 7 April, when announcing its abandonment of its election commitment to a fibre-to-the-node network, the government released just a three-page extract from the NBN expert panel’s evaluation report, despite asserting that its decision was based on that report. Of course, in attempting to comply with this order of the Senate, Senator Conroy has this week tabled some additional information, which the whole world now knows about, with his extraordinary mistake in tabling highly sensitive ACCC information on the network. So he tabled information that he should not have but monumentally failed to table information that he should have to comply with this order. What the minister has now done is again tabled the three-page extract previously released plus, in his great generosity, an additional 13 pages of the evaluation report. Of course, the additional material supplied, paltry as it is, provides very little further detail.

During Senate estimates in May, it was revealed that the evaluation report totalled no fewer than 893 pages, and the flimsy document that the minister has tabled consists of just 16 pages from those 893 pages. He has tabled just 1.5 per cent of the report’s contents. He has omitted 98.5 per cent of the contents of the evaluation report on which he said the government had decided to move from a $4.7 billion commitment on behalf of taxpayers to a $43 billion commitment on behalf of taxpayers. There is absolutely nothing in the material released by the government to confirm that the panel advised the government to commit to a $43 billion fibre-to-the-premises rollout, let alone the reasoning and rationale for such advice. The only hint of any further advice was observation 10, which was released to us:

The Panel can see a way forward to achieve the outcomes sought by the Government and has provided that advice in confidence to the Government because of the commercial sensitivities arising.

We, with our experience in government, never expected that this government would provide commercially sensitive information, but this incompetent minister has, of course, inadvertently done so. As he said, despite releasing that information, it is important to protect information that is genuinely of a commercially sensitive nature. But we do and did expect that the government would table in the Senate the relevant sections of the expert panel report on which the government relied in deciding to announce a $43 billion commitment to build, own and operate a fibre-to-the-premises broadband network. It is quite unbelievable for the minister to claim that 98.5 per cent of the evaluation report contains commercially sensitive information which cannot be released to the Senate. Who does he think we are? That is a ridiculous assertion.

In the Senate yesterday, Senator Conroy, in an effort to deflect attention from his extraordinary incompetence, tried to allege that it was because the Senate asked for this information that he stuffed up and tabled commercially sensitive information. Apparently it was all the Senate’s fault for holding the government to its own commitment to openness and transparency. The minister has used the excuse of commercial confidentiality as the reason not to keep the public informed about his NBN plans. In his statement provided to the Senate yesterday, Senator Conroy stated the release of such information would be particularly harmful to the current environment, where a range of parties are entering into commercial discussions on how they wish to participate in the NBN—or, in the case of Telstra, how they will be told to participate in the NBN. The paradox is that, as I said, yesterday the minister tabled the most confidential information of all but failed to table the information the Senate reasonably expects to see before considering NBN related legislation. As I say, to assert that 98.5 per cent of the contents of the evaluation report on which this decision was based cannot be released for commercial reasons is an absolute nonsense.

The coalition will not support this attempt by the minister to exempt this bill from the Senate’s order for the production of documents. The government has made it very clear that this bill is about how it can make its NBN work, and the minister gave the game away tonight when he spent half his time talking about the NBN in arguing that this bill had nothing to do with the NBN. I must say that until the government cooperates with the Senate order in good faith we will not be supporting any attempts to exempt the government from its obligation to provide the Senate with open and transparent information about its decision to commit up to $43 billion of taxpayers’ money to its National Broadband Network. We in the Senate are the guardians of the taxpayers’ interests. This government is expecting the Senate to consider and, in its view, pass NBN related legislation that will commit taxpayers to a $43 billion infrastructure project. This Senate has a right to have available to it the information upon which the government has decided to make such an extraordinary decision before it considers legislation to give effect to the government’s wishes. If the Senate were to agree to waive the application of this order to this bill, this government would continue to treat Senate orders with the contempt that it has displayed so far.