Friday, June 26, 2009

A high point of legislative drafting

The Government introduced its Telecommunications Legislation Amendments (National Broadband Network Measures No.1) Bill 2009 into the Senate yesterday. The purpose of the Bill is to "provide for network information to be provided by telecommunications carriers and other utilities to the Commonwealth for purposes related to the planning and roll-out of the National Broadband Network (NBN) in accordance with the Government‟s announcement."

The amendment starts with probably the most useless definition ever proposed in legislation;

broadband telecommunications network means a telecommunications network that is capable of carrying communications on a broadband basis.

"Broadband" is not otherwise defined, nor in the Telecommunications Act is a "network" defined (only "network unit"). Even more bizarre is the fact that the defined term "broadband telecommunications network" is not used again anywhere in the Bill.

The Bill amends the process of obtaining network information introduced as part of the NBN tender for the purpose of the implementation study of NBN 2.0. The discussion of the Bill has also brought to my attention the fact that the original provision introduced a requirement that;

A copy of an instrument made [by the Minister] under subsection (1) is to be published on the Internet. (s531C(5)).

I'm informed that words like this have recently appeared in other legislation. I have two comments. The first is that nothing is published "on the Internet" it is published on websites that are accessed by the Internet. The second is that the description of where it is to be published is so generis that it could be in the online equivalent of "the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'" (with acknowledgement to Douglas Adams). Is it too much to ask that the Gvernment formally move to an online version of the Government Gazette. That there be one website the URL of which stays the same to which all such instruments are (a) posted and (b) never removed?

But to the substance of the Bill. As mentioned above the Bill amends provisions introduced to get network information for the NBN tender to get the same information from a wider group of people for a different purpose, namely NBN implementation. It also allows for the information already gathered to be updated. There have been three strands of objection raised to this or the earlier legislation;
1. National security,
2. Commercial confidentiality (aiding a rival), and
3. Onerous and unnecessary requirements.

Before going into each in detail I must admit to being totally bemused by the fact that the Government hasn't regarded having this information available to it as necessary. How can a Government claim to be responsible for telecommunications policy and yet not have the ability to require the information necessary for the purpose of setting policy? hy have these instruments been so narrowly cast, rather than saying, in effect, the Minister may require from carriers such information as he deems necessary for the purpose of conducting national telecommunications planning and policy, the Minister can do anything he likes with the information to further planning or development of policy.

Let's go through the three claims in order;

National Security

PIPE and Telstra tried to run this argument last time. I've got news for anyone who is interested - that the information you'd need to cause maximum disruption is readily available. All Telstra's exchange buildings now have the logo on them. If you can't figure it out from that look at the CBDs and see any multistory building without windows - that is an exchange. The major cable routes snake across the CBD with manhole overs with the logo of the provider. This is really easy infrastructure to locate if you are up to no good.

Actually, it might be good for national security to actually know where everything is to cope with a disaster.

Commercial confidentiality

I've always struggled with the concept of commercial confidentiality. After all, one of the core assumptions you have to make to get the conclusion of the efficiency of markets is that consumers are fully informed of offers in the market. It is more comon these days to see suggestions that information will "chill" competition because people will only shadow price or pocket price.

I think commercial confidentiality is almost uniformly over-claimed, and most of it is actually aimed at deceiving shareholders. But in the specifics of the case at hand there are already various provisions through the Act that require the information to be provided from one carrier to another. As a simple example under the facilities access regime a carrier can be required to hand over details of all its duct space. In fact, when I worked for AAPT we wre referred to the then ACA by PIPE for not having it ready to hand over when asked!

Onerous and unnecessary requirements

As a practitioner my experience has been that it is easier to meet ongoing requests for information than to meet various one-off requests. If another party's information requirements can be built into overall information management policy then the task is a minor one to fulfill on an ongoing basis.

That suggests a generic reporting obligation would be far preferable to the process as it is now. It is also an interesting observation that the previous Government commited to providing public advice of the availability of backhaul infrastructure in its Broadband Blueprint. The need for this was repeated by the Glasson review. Yet the Government is heading into its backhaul tender without providing that data.


Maybe we need a thorough rethink about the role of Government. Saying it provides information to facilitate outcome does not mean we want Government to resume a role as the central planner. This change is the same one the BCA made about infrastructure in genral - the fact the Government has a role to play in ensuring information is available. Heck it is even part of the same Department's discussion on the Digital Economy.

Quick quiz;

What is the difference between wallabies in Tasmania and communications policy? Answer - the wallabies in Tasmania have an excuse for going around in circles.

No comments: