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

Although I think this is a very constructive and thoughtful amendment, I suggest there is an alternative way to do what you are seeking to do. I do not think it actually needs a legislative fix, which is why the government is not support this amendment. NBN Co.’s corporate plan and the government’s statement of expectations very clearly set out that NBN Co. will operate at layer 2 of the network stack, but for good reason the bill does not include that restriction. I appreciate the point you made that you have not sought to be too inflexible. A simple black-and-white layer 2 rule is inflexible and could be counterproductive in terms of the services provided to customers. This was even recognised by Telstra in its submission to the Senate committee that examined the bills.

Once the market situation is clearer and should such certainty be required, clause 41 of the bill provides for the minister to make licence conditions on which services NBN Co. must and must not supply. With suitable carve-outs, a restriction of the type contemplated by this amendment would most appropriately be dealt with by a carrier licence condition if the need arose. During the next four months the government will consider placing a condition on NBN Co.’s carrier licence to restrict it to layer 2. The coalition’s revisions to the amendment it moved in the house do not address these fundamental issues. The revisions to the amendment would allow the minister to exempt a specified eligible service by legislative instrument subject to public consultation. This function is already met by clause 41 of the bill. So I think it is a very constructive amendment, Senator Birmingham, and I do actually think this is an important issue for us to follow closely. As I have said, I have indicated the government will consider placing a condition on NBN Co.’s carriers licence.

As I did mention earlier in the debate, there is a capacity for a minor layer 3 function to be able to flash up on the screen that the individual consumer needs to go and get an RSP. So we need to actually have a minute amount of layer 3 capacity just to make the actual connection serviceable. I hope that genuinely can help with your concern and that perhaps you may not feel the need to even go ahead with this amendment given our indications, which are essentially that we can do it without this.