On 1 March 2011 the two National Broadband Network
("NBN") bills that establish the
regulatory framework of the NBN were given the green light by the
House of Representatives and will now be examined by the Senate
Environment and Communications Committee. The bills are the:
National Broadband Network Companies Bill 2010
("Companies Bill"); and
Given that the original exposure drafts of the Bills were
released in February 2010, the Senate Committee examining them has
been urged to fast-track reporting on them. It is expected that the
Senate will be debating these bills by the end of March.
The Companies Bill contains provisions for the ownership and
operating arrangements for NBN Co, including conditions for the
timing of its sale by the Australian Government. It is largely
procedural and uncontentious with the exception of a carve-out from
the "wholesale only" NBN Co model that generated some
commentary at the time the exposure draft was released.
NBN Co has often been said to be a "wholesale only"
service. As CEO Mike Quigley has stated on many occasions
"we will not compete with our customers" (a
common criticism of the vertically integrated Telstra). The
reservation that allowed the Minister to exempt certain services
from the "wholesale-only" requirement is not in the
Companies Bill as passed by the lower house.
The iteration of the Companies Bill passed by the lower house
does include some exemptions from the "wholesale-only"
requirement but only to allow NBN Co to provide services to some
specified utilities such as transport authorities, electricity and
gas supply bodies and State and Territory road authorities. As the
explanatory memorandum on this states: "NBN Co is only
permitted to supply a service that is used to carry communications
necessary or desirable for specific uses by these
entities." What this exemption may mean for competitors
remains to be seen, but its impact on an open and competitive
landscape should be minimal.
The Access Bill, if passed into law in its current form, will
amend the Telecommunications Act 1997 and the
Competition and Consumer Act 2010 (which replaced the
Trade Practices Act 1974), so as to give effect to the
Government's scheme for a national broadband network to be
built and sold by NBN Co, operating as a wholesaler only.
The Access Bill passed by the lower house included an amendment
initiated by the Greens (and supported by the Government) to make
NBN Co subject to similar Freedom of Information Act 1982
("FOI Act") obligations as other
government owned corporations. However, the amendment has come
under attack from the Federal Opposition which is concerned that
NBN Co's "commercial activities" will still be exempt
from the reach of the FOI Act. "Commercial activities"
are activities carried out (or likely to be carried out) by NBN Co
on a commercial basis. The Government has argued that NBN Co's
commercial activities must be exempt to allow NBN Co to compete in
If you would like to read more on this topic our previous
commentary on the exposure drafts can be found
Our discussions in relation to other NBN legislation, such as
the Telecommunications Legislation Amendment (Competition and
Consumer Safeguards) Bill 2009 can also be found
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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