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Friday, March 04, 2011

FOI exclusion for NBN Co's commercial activities

Adam Bandt
The details of the agreement between the Government and The Greens to bring NBN Co in under the Commonwealth Freedom of Information Act are in a bill passed by the House of Representatives on Tuesday and which is now before a Senate committee. in the House, Adam Bandt of The Greens said the legislation achieves the purpose of subjecting NBN Co to the FOI regime but not in such a way that it would put the company at a commercial disadvantage. Opposition frontbencher Malcolm Turnbull said The Greens have been sold a pup and that the amendments won't achieve this purpose at all. 

In seeking to protect commercially sensitive information from disclosure the NBN amendment largely utilises words already used that exempt documents concerning commercial activities of other government entities such as Australia Post, Medicare and CSIRO. Turnbull didn't raise this, but they have been broadly interpreted in the courts and the AAT to mean for example any document that has a direct or indirect connection with commercial activities-in this 2007 Federal Court case for example, to put outside the scope of the FOI act as it applies to Australia Post, a list of the names and addresses of post office licensees, information you would expect to find in the telephone white pages.Some of the existing and NBN drafting is also, well clumsy-"in relation to documents in respect of"-for example.

To illustrate the lawyer's delight, AAT Deputy President Forgie in Bell and Commonwealth Scientific and Research Organisation [2007] 46 AAR 1 took 89 paragraphs [52-141] to analyse some of the terms now used for the NBN, and the case law in detail, expressing along the way some bemusement at how to apply a binding precedent in another Federal Court decision Australian Broadcasting Corporation and The University of Technology Sydney [2006] FCA 964.

The amendments in effect make NBN Co subject to the act by defining it as a prescribed authority, but exempt the company "in relation to documents in respect of its commercial activities" through the addition of a provision to Schedule 2. An amendment to section 7 provides that "commercial activities" when used in relation to NBN Co means "activities carried on by NBN Co on a commercial basis" or "that may reasonably be expected in the foreseeable future to be carried on by NBN Co on a commercial basis." Turnbull's point is that the reference to the NBN in amendments to s 7, unlike the provision that applies to other entities listed in Schedule 2, is not confined to those NBN functions carried on in competition with anyone else.

The NBN Co situation raised issues about exclusions from the FOI act (what other government owned companies aren't covered?) and Schedule 2 apart from its construction, (ALRC recommendations of 1995 and for example another matter concerning the ABC and SBS) that should have but weren't addressed in last year's FOI reforms. While exempting NBN Co's commercial activities from the act in terms that apply to other entities satisfies the need for neat consistency, it won't deliver certainty and leaves plenty of room for broad blanket exemption claims that won't require any evidence of harm to the commercial interests of the company.

Over to the the Senate Committee. This is only one element of the bills.Submissions closed on 24 February (before the Bandt amendment passed the lower house) and the report date is 16 March. Who's interested? 

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