Senate Committee says pass NBN bills

Handing down its report today [pdf], the committee said it "acknowledged the concerns" of the industry in a number of contentious areas of the bills – including the potential for NBN Co to creep into retail, exemptions for the electricity sector and anti-cherry-picking rules.

But it tabled no amendments and placed no conditions on the passing of the companies bill.

In addition, the only condition the committee put on the passage of the Access Bill was safe passage of Freedom of Information (FoI) amendments proposed by the Greens through the lower house.

That earned the committee a rebuke from Liberal senators [pdf] who said they would pursue at least six amendments to the bills.

The dissenting senators argued that the only committee-proposed amendment effectively made the NBN "completely immune in practical terms from the Freedom of Information Act.

"The Greens amendment, which we understand the government has persuaded them to put up, has the effect of exempting all documents of the NBN which can be described as being 'in relation to its commercial activities'," the Liberal senators said.

"Given that the NBN is a business, it has few if any activities which are other than commercial.

"The words 'in relation to' have been construed very broadly by courts on many occasions. If 'commercial activities' has a broad practical effect in relation to NBN Co, adding the words 'in relation to' only broadens that already broad practical effect.

"The amendment that the Coalition proposes, and which the Greens did in fact support some time ago, is much more appropriate. It would result in the NBN Co being accountable, without being obliged to produce commercially confidential, trade secret, legal documents."

The Liberal senators argued against giving the electricity sector any special exemption that would allow them to take a fibre service directly from NBN Co, rather than have to take it from a sub-wholesaler like Telstra or Optus.

They also supported a watering-down of cherry-picking provisions designed to stop telcos from building networks that competed with NBN Co in city areas – amendments that would appease many telcos and ISPs that had sought the provisions be altered or scrapped.

The Senate Committee did provide some acknowledgement of the wide-ranging concerns on cherry-picking; however, it left the issue in the hands of the Government to smooth over with industry.

"Given the degree of uncertainty perceived by submitters – in particular in relation to the circumstances in which these provisions apply – the committee would expect that the Government will be able to give more certainty to the operation of the level playing field provisions," it noted.