Telstra wasn't "excluded"

In their articles today about the action by the ACCC against Telstra both Matt O'Sullivan in the SMH and Dominic White in the AFR (behind a paywall) refer to Telstra as having been "excluded" from the NBN tender.

As a choice of language this is misleading. It suggests that there existed some option for the Government to include or exclude them. There never was such an option once the tender closed, no matter how much some like to think that a way could have been found around the "technicality".

The reality is that Telstra failed to lodge a valid bid for the NBN. Telstra shareholders (of which I am one) need to be under no illusion that the reason they are not part of the NBN is because of Telstra's actions - not the Government's.

Meanwhile both Matt and Dominic tried to link the ACCC's action to the policy desire of the Government for separation. The implication is that the ACCC is doing the Government's bidding. The legal position is that the ACCC is an independent regulator and cannot be directed by the Government in this way.

There is, unfortunately, a deeply ingrained cynicism about this independence that implies that at least the ACCC and Government would be in consort, that there is an agreement without direction. I can understand the basis of the idea, but ACCC Commissioners are not renowned for letting their independence to be compromised.

In the specific case I'm note sure I follow the link, and I'm pretty sure the Government needs no other motivation nor justification than delivering the NBN.