NBN Co and applicants given 12 month FOI good behaviour bond

The result of last week's final steps in the passage of legislation that included extension of the Freedom of Information Act to NBN Co is that the company is to be subject to the act except, as a result of the Bandt amendment previously approved by the House, in relation to documents in respect of its commercial activities. And the Minister administering the FOI act is to arrange a review of NBN Co FOI experience after 12 months and table the report, as a result of an amendment in the Senate moved by The Greens Senator Ludlam. This review is separate from the two year review of the act due in 2013. And the six month review of fees and charges that must be starting to loom.(Correction: getting ahead of myself-the Australian Information Commissioner is to undertake the review of fees and charges within 12 months of appointment-presumably by 1 November.)

The NBN Co debate resumed on Monday 21 March with Senator Ludlam foreshadowing more robust changes later in the week:

"..we will need to open this issue up again in the committee stage when we get to it tomorrow, to have the FOI Act itself amended to make sure that, as far as NBN Co. is concerned, the presumption is that commercial information will be released unless it can be demonstrated that some harm will be caused if it is released... (W)e are going to try and find somewhere in the middle that allows commercially sensitive material, or material which would be destructive if it were released, to be withheld. Those arguments can be made and appealed..... But let us do away with this blanket of secrecy that somehow accords sacred status to commercial information just because a business is being run. I am hoping that that will satisfy the concerns of the opposition. I am hoping it meets the objectives of the government to presumably not have NBN Co. opened up to repeated hostile or malicious FOI requests, or whatever the concern is. Hopefully we will set something of a precedent in the way that the FOI Act operates as well."

Some back room discussions presumably followed. By the time the Senate got to it later in the week, politics as the art of the possible was the order of the day. With the Opposition wanting more and the Government presumably less, debate (Senate Hansard 24 March 115-119) centred on an amendment moved by Senator Ludlam and supported by Government Senators to add a new Section 100A to the bill to require a review in 12 months of what happens in the making and determination of FOI applications, and a report to be tabled in Parliament.The amendment passed 32-30.

During debate at this stage Senator Ludlam said:

We are not happy, and I suspect the coalition will not be either, with the way the Freedom of Information Act handles definitions of commercial activities. I think there is a body of case law that has built up over the last couple of years that is pointing in the direction that says it is interpreted too broadly and that it is in need of review and repair. That is not a problem for the NBN Co. per se—it is not a communications portfolio issue—but it goes a bit deeper than that, to the operation of the FOI Act itself. What we have done here is propose a couple of things. We want more or less an immediate rolling review of how the Freedom of Information Act is being used and/or abused with regard to the National Broadband Network. We want to know how it is actually working in practice. Senator Birmingham has not spoken on this one yet, but I suspect we are going to be to some degree in agreement with the fact that this could be abused. But let us be very careful here. The Freedom of Information Act can be abused in two different ways. The first thing that might happen is that NBN might say, ‘No, that is relating to our commercial activities; you can’t have it.’ We might see quite a lot of
that. This amendment will expose whether or not that behaviour is going on. The second way in which the Freedom of Information Act can be abused is if certain new organisations, or certain competitors to NBN Co., or people with a particular point of view, start firing freedom of information applications at a rate of 10 or 20 a week, to attempt to either paralyse or bog down NBN Co. That is part of life. Mr Quigley has a pretty thick skin, I guess, after a couple of years in the job. They are used to it and they can handle it. But what we are most keen to know is how it is actually working in practice. So every 12 months the FOI minister, according to clause 2 of my amendment, ‘must cause to be prepared a report of a review under subsection (1).’ I am going to invite the minister in a second to provide a little bit more detail about how this is actually going to work in practice. We want to know how the FOI Act is being used. This is the first time an entity like NBN Co. will have been brought within the ambit of the Freedom of Information Act. It is not Australia Post; it is not CSIRO. We know it is in the appropriate part of the act. The question is: will the act serve us well? That is what this amendment proposes to find out.

 Minister Conroy wasn't able to come up with anything much about how he thought it would work. Later in debate Senator Ludlam said

I think that the idea that commercial information is somehow all sacred, and that the public interest takes a back seat to the commercial interest, is a really serious usurpation that has just crept into public discourse over time—that information that is considered not even necessarily commercially sensitive but merely commercial is precluded from release.

Senator Xenophon also showed interest, seeking information about how the review might be conducted. While the Government made no commitment Senator Ludlam made it clear he has in mind a public process that will include submissions.

The Senate amendments to the Bill were considered by the House of Representatives as recorded in Hansard 24 March [at 121] (I thought it was Friday)

There the Opposition came within a whisker of success in moving an amendment rejected in the Senate that NBN Co be subject to the act in the same way as any other agency. An amendment to this effect moved by Malcolm Turnbull was lost, 62-63 with Independent Rob Oakeshott joining Turnbull in speaking and voting for the amendment.

Turnbull told the House[122]:

This is a monopoly. It is a government owned monopoly. It represents the largest investment in any one infrastructure project in our country’s history and it should be properly scrutinised....If this amendment is accepted, the NBN will be subject to the act. It will still have the benefit of the exemptions in the Freedom of Information Act in sections 45, 46 and 47. Information received in confidence can be exempt. Information which relates to trade secrets can be exempt. Commercial information the disclosure of which would destroy the value of that information is exempt, and of course documents relating that are subject to legal professional privilege are exempt....It will be said..that the government’s amendment is comparable to the provisions that apply to Australia Post. That is simply not correct. The provisions that apply to Australia Post only exempt from production documents which relate to its commercial activities where it is in competition with other companies, other businesses. For the bulk of Australia Post’s operations, it is a monopoly and a utility. The NBN will not be in competition with anybody in its fundamental purpose of providing the monopoly fixed line operation, and that is why they tweaked the provisions, the language, that had been used for Australia Post. But the consequence is that, because documents relating to its commercial activities are exempt, as it does not have any charitable or philanthropic activities that I am aware of, all of its documents would be subject to disclosure. For that reason we need to have a thorough application of the FOI Act to the NBN, and this amendment—very brief and very straightforward— would do just that. . But the consequence is that, because documents relating to its commercial activities are exempt, as it does not have any charitable or philanthropic activities that I am aware of, all of its documents would be subject to disclosure. For that reason we need to have a thorough application of the FOI Act to the NBN, and this amendment—very brief and very straightforward— would do just that.

Minister Albanese for the Government scored a few points in response about the Howard government's form on transparency-not difficult-but the argument against the motion came down to

When NBN Co. is included in the FOI Act, it will be in a unique position as the only Commonwealth company which is also a GBE within the FOI Act. Aboriginal Hostels Limited is a company included in the act but is not a GBE. This amendment would impose unforeseen and possibly very high administrative burdens and compliance costs on NBN Co.

Which leaves open the question whether we should be content that only two companies owned by the Government are subject to the FOI act, to some degree. We know that NeHTA isn't at all. As to who else?

Good luck to those in NBN Co who are to deal with this, with a review 12 months away, as well as those who seek access to documents. They have common purpose in puzzling about the scope of the exemption. Deputy President Forgie's 100 plus paragraphs on the meaning of similar words to the NBN Co exemption will be compulsory reading.