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Monday, March 21, 2011

"In relation to in respect of" NBN commercial activities before Senate this week

NBN Co legislation that addresses a range of issues including bringing the company under the Freedom of Information Act (to some degree) is before the Senate this week. The legislation was the subject of this report by the Environment and Communications Legislation Committee last week. The FOI issue didn't attract attention in submissions-not surprising as they closed before the Bandt amendment in the House- or in the two committee hearings. The majority report [3.67-3.68] simply notes and supports the amendment, while coalition senators argue for full coverage for NBN Co as a prescribed authority. Issues concerning the uncertainty, canvassed here, about the scope and interpretation of the provision that would exclude the company from the act in "relation to documents in respect of" commercial activities may get a run in consideration of the bill in the Senate.

Coincidentally another Schedule 2 issue, the exclusion of the ABC from the FOI act "in relation to documents in respect of" program material surfaced in the news today in this Herald Sun report. The exclusion was relied upon to reject an application for information about the cost of the set re-design for the 7.30 program. As noted previously a Federal Court decision generously interpreted this provision in a way that even Managing Director Mark Scott admitted justified re-consideration in 2009-that interest appears to have waned.

Schedule 2 of the act and the blanket exclusions it confers was ripe for re-examination when the Australian Law Reform Commission recommended [76] 16 years ago. It wasn't then or during the recent FOI reforms. It's a long haul-the two year review of the act due in 2013 is the next best chance.

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