Senator BIRMINGHAM: (South Australia) (12:32): This debate is of course in continuation from the sittings a couple of weeks ago. At that time I highlighted, answered and responded to some questions that Senator Ludlam posed in relation to these amendments. The amendments are important to ensure that the competitive aspects of fibre deployment in greenfield sites are maintained. We think it is critical, vital and important that, in regard to those greenfield sites, we see a decent sense of competition and a decent sense of the provision of services to greenfield developers for the deployment of fibre services. These amendments seek to provide a fairer playing field for competitive greenfield operators against NBN Co. The government has set up a framework in which NBN Co. is the provider of last resort—they claim. However, in reality we see a situation where NBN Co. will, as I highlighted in the previous debate, provide to developers a free service that will obviously be extremely attractive. That will leave competitive greenfield operators essentially as an unviable provider of services, because developers will have the choice of paying a private company or getting a service free from NBN Co. That of course is a Hobson's choice; there is no choice at all. In that situation, anybody is sensibly going to go with NBN Co. Therefore all of these small private businesses who have built themselves up over a period of time to be able to deploy fibre in greenfield sites effectively and competitively will be squeezed out of the market, because they will have been seriously undermined by this government.
If we look at some of the evidence that the Joint Committee on the National Broadband Network received on this matter we see that competitive greenfield operators, through the Greenfield Fibre Operators of Australia, highlighted a range of problems with this bill that these amendments try to redress. We see it very clearly in the GFOA's submission, which highlighted that:
NBN Co is the obvious first choice for Developers because the NBN Co can fund the network build costs that are otherwise paid by Developers to private providers … and that funding is recovered by NBN Co charging RSPs higher operational prices.
… … …
Without competition maintained and enshrined in the Bill, NBN Co will have no real constraint on charges nor incentive to be innovative or provide community and utility services without charge.
These amendments clearly seek to maintain competition, provide a sense of innovation and, most importantly, ensure that developers have a choice of fibre provider and have the opportunity in that choice to get fibre deployed quickly in their greenfield site, in the most innovative and efficient way possible and, importantly, in a manner that that meets the requirements of NBN Co. but which is not stifled by NBN Co.
If we look further at the submission of the Greenfield Fibre Operators of Australia we see that the GFOA believes:
… that the Minister wants NBN Co to be a monopoly and that he will therefore either set standards and specifications that only suit NBN Co network design and business or be silent and allow NBN Co standards and specifications to become the default standards and specifications as uncertainty overcomes the property development industry. Either way, by Ministerial determination or silence, setting NBN Co standards and specifications for network design, deployment and interconnection will eliminate all competition to NBN Co by GFOA or others interested in investing, building and operating fibre networks on any basis.
The opposition's amendments transparently seek not to undermine what the government is seeking to do in providing fibre to greenfields sites; they seek to strengthen it. They seek to strengthen it by providing more choice to developers, by providing the opportunity for people other than NBN Co. to deliver those services by ensuring that we have a situation wherein NBN Co. cannot go in and gold-plate the standards that are required. Instead, as a result of the opposition's amendments, a situation will be put in place whereby we will actually see ACMA and relevant industry bodies determine what is necessary for compliance with NBN Co. rather than having NBN Co. set its own determination of compliance.
During the debate last time I posed two particular questions to Senator Conroy about the operation of this legislation. They were questions that my colleague Senator Nash had posed and that the minister had thus far been unable to answer. I hope that with the intervening weeks since this debate last took place in the Senate the minister will be able to actually answer those questions. I hope that on this occasion he will front up and actually explain the situation regarding the notions of NBN Co. operating as the provider of last resort.
The important issues Senator Nash highlighted—the questions she asked and that I posed again—related, quite simply, to when the last-resort provision was triggered. Can you tell us, Minister, when is the last-resort provision of NBN Co. to assume responsibility for deploying fibre at these greenfields sites triggered? How long will developers have to wait to see NBN Co. come in and deliver the service for those communities for those new developments? Tell us what the trigger for that provider of last resort is, as well as the expected time frame for that trigger. Then, once it is triggered, how long will it take for NBN Co. to actually deliver the service? How long will people at these sites have to wait to see NBN Co. come in and actually deploy the fibre at those greenfields sites?
These are two fundamental issues. The minister keeps claiming that this does not set up some sort of monopolistic provision for NBN Co. in the greenfields sites. We dispute that. We think our amendments will at least provide for a better competitive framework. In addition to that, we are concerned as to just how the operation of these last-resort provisions will work. Please give us a clear answer on those two matters.
Senator BIRMINGHAM:(South Australia) (12:41): I thank the minister for that answer. I just want to be absolutely clear about what the minister is saying. It is within the rights of a developer, at the first available opportunity, to lodge an application for NBN Co. to provide service, as long as they meet the requirements of three months notice et cetera. Is there any requirement for a developer to consider using any other operator before they go and get NBN Co. to roll out the fibre?
Senator BIRMINGHAM: (South Australia) (12:42):Well, that makes it pretty crystal clear! The statements by this government that it is setting NBN Co. up as the provider of last resort are not truthful at all. They are not setting NBN Co. up as the provider of last resort; they are setting up NBN Co. as the default provider of fibre at these greenfields sites. That is what the minister's flippant response about choice means. For a developer who is establishing a new housing development, the choice is, quite literally, to go and lodge an application with NBN Co. and get the fibre rolled out for free or to go to a greenfields operator and pay to have the fibre rolled out. That is the choice the minister wants people to make. There is no requirement for a period of delay for them to consider using a greenfields operator first. They can just go to NBN Co. up-front, first thing, and simply get them to roll out the fibre.
Who on Earth would think that in that type of situation we would see a single greenfields fibre provider around Australia left in business after a few months of operation of that system? Of course everybody is going to take the free option. This government knows a thing or two about offering free options. It offered free pink batts in people's roofs. We saw how that ended: it ended in utter misery for householders, for homeowners and for many, many businesses—who ultimately were put out of business by the very scheme that set up some of those businesses in the first place. This government have no understanding and no credibility when it comes to how the decisions they make impact on the operation of the market. They have no understanding or credibility as to how their decisions impact on private business and private jobs. They are creating this giant new multibillion-dollar government monopoly called the NBN Co. And, in doing so, they are happy to squeeze everybody else out of the market—everybody else. And they do not seem to care about the consequences of that—for developers, for innovation in this space, for the timely delivery of fibre services in this development. They are just flippant about the whole thing. For them, of course, it is all about trying to make the fictitious economic model of the NBN Co. stack up. And we know that they will never manage to make the NBN Co.'s economic or financial modelling stack up; but they are putting in place every possible impediment to private providers, every possible impediment to other businesses, to ensure that the NBN Co. model is underpinned as a true monopoly provider. And we all know what happens with monopoly providers in the end—Senator Conroy has given us many lectures on that in this place in the telecommunications space. In the end, the prices go up, innovation goes out the door, service gets more sluggish—and that, of course, is what Australia's housing developers will face—
Senator CONROY: that why you voted to privatise a vertically integrated monopoly?
Senator BIRMINGHAM: If you want to go back to debating the previous legislation as well, Minister, we are going to be here for a terribly long time.
Senator Ian Macdonald: Stop filibustering!
Senator BIRMINGHAM: Thank you, Senator Macdonald, for that very apt interjection, which highlights the fact that Senator Conroy, throughout this debate, has been more interested in talking about all of the past decisions, all of the past debates, than he has been in actually talking about and defending his legislation, the proposal that is here before us. We do not hear him stand up here saying that yes, there will be competitive fibre operators in the marketplace competing with NBN Co., because he knows that there will not be, he knows that there cannot be under this model that he is proposing. The challenge is there, Minister: if you want to stand up and try to convince the Senate that your legislation is not going to put businesses out of business, then please do so—feel free to actually give us a compelling argument that you are not going to drive private providers already in the marketplace out of business as a result of what you are proposing.
The opposition have made it crystal clear in our amendments, and in our debates on these amendments, that fundamentally they are about providing a better, competitive framework in the greenfields development space—so that housing developers, when they are putting together a development, have a choice of where they can go to, that there are some benchmark standards, that there is a legislated pricing arrangement in place so that they know they can get somebody in to deploy the fibre and that it will ultimately, of course, be sold through to NBN Co. and operate as part of your grand NBN network. So we are not trying to undermine your goals in relation to dictating fibre as the technology of choice for all Australians—or for 93 per cent of Australian premises. We are not trying to undermine your desire for NBN Co. to be the primary wholesale provider. We are not trying to undermine any of those things—
Senator Conroy: Your nose is growing: Pinocchio Birmingham, we'll call you!
Senator BIRMINGHAM: Senator Conroy, the invitation is there. When I sit down, I will welcome you standing up and defending this legislation. I will welcome you standing up and actually telling the Senate that you believe that this will not put people out of business. That would a brave thing for you to do, Senator Conroy, because deep down you know that it will put people out of business, that it will see small operators, Australians who have invested in building a company, lose equity in that company; that it will see them ultimately have to shed staff, that it will change the model for the deployment of fibre in greenfields sites in Australia, and in doing so it will truncate it all into the one monopoly provider—your NBN Co. That may be great, for you to try to stack up the business model of NBN Co., but it will be bad for these developers, it will be bad for the households who purchase in those developments. It will probably see people ultimately having to wait longer to get services, it will see them ultimately paying more for those services and it will of course see a lack of innovation in the delivery of those services—all because you want to somehow prop up and underpin the financial case for the NBN. That is not good enough.
That is why the opposition stand behind these amendments. We have, unlike you, listened to the concerns of the greenfields fibre operators. Senator Macdonald, myself and others on the joint standing committee have actually listened to those concerns. We have read their submissions, we have heard from those businesses and we have heard them all say very clearly: 'This legislation is a problem; this legislation is a threat to our business and a threat to our jobs.' And, unlike you, we have actually responded to those concerns. Unlike the government, we have heard the concerns and we have decided that we will actually deliver, in this legislation, something that addresses those concerns and provides at least a skerrick of opportunity—and it will be a skerrick of opportunity, given the multibillions of dollars of taxpayer funds and of government debt you have underpinning the NBN Co. But it will at least provide a skerrick of opportunity for these businesses to be able to survive into the future.
So the challenge is there, Minister. When you come back to your seat, when your rise to your feet—which I hope you will do—tell us: do you think there will be a single greenfields provider left in Australia after this legislation passes and comes fully into effect? Do you think there will be anybody actually out there rolling out fibre, aside from NBN Co. and those who NBN Co. pay to do so? Because, from the answer you gave to my previous question, that it is all about choice, you made it pretty well crystal clear that your choice is a Hobson's choice, that developers in Australia will simply be left with a choice of getting it free from NBN Co. or having to pay a private provider—and the upshot of that, of course, will be that it will be the private providers who go out of business. It is your call, Minister: tell us whether you think there will still be a business there for them; convince me that there will be, somehow—because for the life of me I cannot see it in what you are saying.
Senator BIRMINGHAM: (South Australia) (13:06): The minister did this when we were last debating this legislation as well. He is pursuing the most misleading of arguments in this regard. He stands here and he says that Telstra provided and rolled out copper for free and that is why it is okay for the NBN Co. to do it with fibre. But there is of course a vastly different value offering at stake here, Minister. You are the one who has proclaimed that fibre is a far better value offering, and of course it is a far better value offering than copper.
Senator CONROY: Last time I checked, you support fibre in greenfields. That's what Mr Turnbull said.
Senator BIRMINGHAM: And, Minister, we have made it perfectly clear that in the amendments we are proposing to this legislation we are not stopping the provisions for fibre to be provided in greenfields; we simply want the opportunity for it to be provided competitively, and that is the vast difference. You are somehow trying to say that NBN Co. being the provider of free fibre in greenfields premises is perfectly analogous to Telstra having provided free copper in greenfields developments. Transparently it is not, because they are vastly different value offerings. Transparently it is not. We have made clear that we think that, if you are going to have fibre provided in all of the greenfields developments, it should be provided by businesses on a competitive basis.
Do you know what, of course, has happened while Telstra has been providing copper for free in greenfields developments? Private businesses have established, offering a better value offering to developers, offering something that distinguishes them. What is that better value offering? Fibre. That is why we have competitive greenfields fibre operators, Minister. That is why they have sprung up around the country. They have sprung up to fill the void of Telstra simply rolling out copper for free. The developers who want to offer the purchasers of their homes a better value offering have decided to do a deal with competitive greenfields fibre operators and allow them to roll out fibre instead of Telstra simply providing a free copper service.
But your legislation destroys that business model for those people because you substitute the option that currently exists or has previously existed of developers either getting copper for free in a development or paying something to have fibre rolled out with the option of their now getting fibre for free or paying something to have fibre rolled out. Transparently you have destroyed the business model of those people, you have destroyed the offering that is there for them and you are setting them all up now to go out of business. It is little wonder that they have made such impassioned pleas to the Joint Committee on the National Broadband Network, that they have called for changes to this legislation and that the opposition has heeded those calls by proposing the amendments before the parliament at present.
As if it is not bad enough that you have failed to listen to those concerns of the stakeholders, failed to act on them and brought legislation into this place that will destroy their business model, you now reject opposition attempts to try to rectify your mistakes. You reject our initiative to try to restore something under which those people could keep their businesses going. In rejecting it, you then brush aside any serious questions that the opposition may have and you run misleading arguments by trying to compare it to a system that has now been abandoned of rolling out copper for free—versus rolling out fibre for free.
Your arguments are misleading. You need to acknowledge that. But you also need to answer the questions. Senator Macdonald has validly raised some questions, and I challenged you before, Minister, to say honestly whether you expect any competitive greenfields fibre operators to still be in the marketplace under the conditions your legislation establishes. Do you think there will be one? Do you think there will be any left, given the fact that you are putting in place a business model where developers can either get the fibre rolled out for free or they can pay for it? Like anybody with an ounce of common sense, they will go with the person who is providing it for free. Yes, if there is some technology beyond fibre that comes along, maybe we will then see something that is analogous to your copper story. If there is some technology that greenfields operators can offer that is bigger and better than NBN Co.'s fibre, maybe we will see people go for that—if there actually is a market demand for such things, which is a very big question at present.
But right now there is not. These business models have developed under the framework of offering a higher quality service of fibre compared to the free offering of copper. You are now making the minimum requirement fibre; that is the premise of this legislation. That is fine, but if you are making that the minimum offering you should do so in a manner that ensures you do not cut off the legs of the people who have been out there as the early adopters, the businesspeople who have invested their savings and their money to establish businesses that roll out fibre already in greenfields estates and have been doing so for some period of time. But you are just happy to lop off their legs, pull the rug out from underneath them and establish a new framework in which their business model is destroyed. So the simple question, Minister, is: do you think any of these businesses will survive?
Senator BIRMINGHAM (South Australia) (13:23): Lest I be accused of filibustering or taking undue time, let me keep it simple for the minister. Does he expect, as a result of his legislation, that some competitive greenfield providers of fibre will go out of business—yes or no?
Senator BIRMINGHAM: (South Australia) (13:26): There we have the arrogance of the minister. He accused us of running a filibuster. I gave him the opportunity with a very short question on my part of just a few words to give us a direct yes or no answer to some of the key points we are trying highlight here. He sat there with his head down ignoring the chamber, ignoring the debate around him, showing the contempt and the arrogance that we expect of this government.
Senator BIRMINGHAM:You are right, Senator Kroger; he continues to do so. He lets a little smirk go across his face to let us know that he can hear the comments and that he knows what is being said, but he will not engage in the debate because he knows how wrong—
Senator CONROY: You should try out for TheX Factor. This performance belongs on TV.
Senator BIRMINGHAM:Minister, thank you. You can throw all the gratuitous praise, backhanded or otherwise, you like at us. The reality we have here is a government that knows there are problems with its legislation, that knows there will be adverse consequences as a result of this legislation, but is too gutless to admit it. That is the honest thing. I asked the minister whether, as a result of his legislation, businesses would go out of business, whether this bill would put people out of business. He did not have the courage to stand up and give an answer to that. He would not stand up and say, yes or no, this legislation will put private operators out of business. That is the contempt of this government: it will not admit, when it is bleedingly obvious to all, what the consequences of its legislation are. It will not actually tell the parliament and tell the Australian people the honest consequences of its proposals. That is all we are really trying to get out of the minister today. This is not a grand filibuster, whatever the minister may wish to say. We just want to get the government speaking honestly for once to the Australian people. Instead this government loves to speak with a forked tongue. This is what the minister said on 9 December last year:
It has been a consistent feature of the government's policy in new developments that there should be room for competing providers. This continues to be the case.
In practice, it does not continue to be the case. The minister can claim all he wants that freedom and choice remain in the market for people to use competing providers, but we have exposed through this debate the reality that there will be no market of competing providers. Providers will not be able to compete with the government's multibillion dollar monopoly enterprise that will roll the fibre out for free on new developments. Ipso, people will go out of business. Senator Conroy just will not front up and be honest enough to tell the parliament that this will be the consequence of his legislation. If he made it clear and said, 'We know that is the case, we know that is what will happen, but that is what we are doing anyway,' we might actually progress this debate. We might get somewhere if Senator Conroy was willing to openly admit the consequences of his legislation that he wants this chamber to vote on.
Sadly, I acknowledge that the amendments the coalition has proposed in response to genuine concerns of stakeholders are unlikely to succeed. Senator Ludlam has already indicated that the Greens will not be supporting these amendments. That is regrettable, but it is a fairly consistent pattern we see nowadays in the chamber where the government and the Greens agree on what they will or will not support and where changes will or will not be made. That is unfortunate, that is their right, but it does impede the opportunity of the committee to make sensible, reasonable improvements to legislation before it. These amendments will not be successful because of that agreement.
We continue this debate acknowledging that but wanting to see from the government an admission of the facts, an admission of how this legislation will work in reality. That is all we ask of you, Senator Conroy. Give us those facts, give us direct answers to direct questions, and we can move on and you will have your legislation. Sadly, we will see the consequences of it, but be upfront in admitting what those consequences are. That would be the reasonable thing to do. That would be the decent thing to do. That would ensure that you got your bill and we get to move on to the next item of business. Those people who have expressed concerns and know the implications of such legislation equally will know that you understand the implications, that you are not bereft of all knowledge in this space. I do not think you are. I think you do understand the implications of this and the only reason you are pursuing the approach you have taken in this legislation is to prop up the business model for the National Broadband Network. That is a business model that currently way out there on the never-never proclaims to deliver return to government and return to taxpayers. We know that is a long, long way away and, if you do not manage to distort the market through legislation like this, it will be even further away. That is another fact that you will not admit in this debate but should admit—that it will be further away for you to meet the business model of the NBN if you do not destroy competition in the Greenfields space.
The invitation is there, Senator Conroy. Stand up and give answers to questions, as Senator Macdonald so ably did before—give answers that acknowledge that these changes will dramatically change the business model for Greenfields operators, that in dramatically changing that business model all of them probably will go out of business, that jobs will be lost, that competition will be lost and that innovation will be lost. Acknowledge those things and acknowledge that you are just doing it to enhance the opportunities of your monopoly broadband provider, NBN Co. Be upfront, say all of those things and we will move on to the next amendment—that will be that. That is the invitation to you, Senator Conroy. Simply be upfront with the Australian people and particularly with these small- and medium-sized businesses that have been built on the hard work of innovators, of people who built a business based on a market opportunity to provide fibre where it was not otherwise being provided, who have embraced the type of technological change and innovation that this country should be encouraging in the private sector, and that you are going to put out of business.
Senator BIRMINGHAM: (South Australia) (13:48): There we have from the minister ducking, dodging and weaving around the very direct matter that Senator Macdonald raised about what NBN Co. is doing in reality. Maybe in their business plan they talk about reducing costs over time, but when it comes to dealing with the regulators they are doing something very, very different, Minister. Yes, it was an NBN Co. discussion paper—a discussion paper that went to the ACCC. It proposes allowing price hikes of up to five per cent above inflation on the price of broadband services in Australia. It proposes up to five per cent above inflation. We see them arguing in their discussion paper, which I will quote from:
This commercial flexibility is ... necessary because NBN Co is subject to considerable demand uncertainty.
Demand uncertainty! Wow! And there I was thinking that the minister had always assured us that the demand was very certain, that the projections were of course very clear, that the projections were modest, that the projections were conservative and that we could all have confidence in the business plan of this NBN Co. What do we have NBN Co. saying? Let me quote further from them:
Demand uncertainty remains in relation to issues such as the price payable by end-users for broadband services over time ...
What have Mr Turnbull and the opposition been saying consistently about this? We have been saying consistently that there is no certainty that people want to pay for the very, very high speeds at the far higher prices that NBN Co. will be offering. There is no certainty that people will want or embrace more than the basic service offering in the main from NBN Co. That is what the opposition have been saying consistently in our arguments about whether this is a valid investment and whether this investment is one for which the Australian taxpayers should be paying up to the tune of $30-plus billion in construction costs and many billions of dollars in payments to Telstra and Optus that we now see come with 'stay quiet' clauses, with shut up clauses essentially, that stop Telstra and Optus from actually advocating their own wireless services as competitive alternatives to NBN Co.'s fibre service. So we see the government and NBN Co. operating in a very, very different way from what they say.
Once again, it is case of this government, as I have said before, speaking with a forked tongue on these matters as they do on so many other matters, whether it is the NBN Co. or a raft of other matters such as their assurances on the carbon tax and bringing the budget back into surplus. On all of these matters, they say one thing but in the end they ultimately find themselves doing something very, very different. In this regard the minister claims he wants to maintain competition in terms of fibre deployment on greenfield sites, yet he is asking this parliament to pass legislation that does quite the opposite. He says that NBN Co. is going to bring prices down over time and that the NBN Co. business plan facilitates prices being brought down over time. Yet, when it comes to the crunch of dealing with the competition regulator, NBN Co. goes and seeks precisely the opposite. The chair of the ACCC, Mr Sims, may wish to consider it an ambit claim by NBN Co., but you have to ask, then, what type of culture the minister has established in setting up the NBN Co. such that they are out there making ambit claims, wanting to set themselves up in a manner that allows them to rip off the Australian public and the Australian consumer as much as they possibly can. NBN Co. is stepping into the public domain and saying, 'We would quite like to be able to raise prices by five per cent above inflation. We think that's a perfectly reasonable thing for us to do.' Never mind the fact, as Senator Macdonald rightly highlighted, that at present so many Australians face real cost-of-living pressures. We have seen the prices of housing and basic utilities like electricity, gas and water skyrocket during the duration of this government. All of those people will only face additional pressures under the government's planned carbon tax, and now we have the minister setting up his multimillion dollar, taxpayer funded, debt riddled monopoly of NBN Co., which wants to put prices up by more than five per cent.
When we ask them why they want to put prices up by more than five per cent, or when they are asked by the ACCC to provide evidence to justify why they want to put prices up by more than five per cent, they cite demand uncertainty as the reason they want that approval and that authority to raise prices by more than five per cent above inflation—demand uncertainty! Once again, this government and this minister are speaking about the NBN with forked tongues. Once again, the government is coming in here and proclaiming that its business model is certain, that the billions of dollars that taxpayers are in hock for on this NBN are secure. The reality, though, is a vastly different story. Taxpayers certainly do not face any semblance of security from this NBN Co. They do not have security and they will face enormous debts to the public purse for years and years to come. As you fund the building of this NBN you are forking out many billions of dollars.
But what did we see yesterday in the tabling of the first report of the Joint Standing Committee on the NBN, the committee that looked at this legislation that is before us? It has also now provided its first update report on the NBN. We found that the NBN was unable to provide that committee with the most basic of key performance indicators, with the most basic of details about how taxpayers' money is being spent. That committee would dearly have loved to be able to report in a manner which provided details on just how much taxpayer money has been provided to NBN Co. to date. Of the billions of dollars forecast to be given to NBN Co. in the current financial year, how much has already been handed over? How much have they spent? That is detail we would like to have known. We would like to know how much they have spent on their many inflated executive salaries versus how much they have spent on deploying and delivering fibre, wireless and satellite services. But no, we could not get any of those things.
Could we perhaps get some basic information about how much fibre has been deployed by NBN Co.? Could they tell the joint standing committee that in any decent type of KPI? No. We did not have detail of how much fibre had been deployed. How about how many premises have been passed by? How many households and businesses have been passed by? Once again, the government was incapable of telling the standing committee, through NBN Co., how many premises have been passed by, how many of those premises have opted to have a connection to the NBN and how many of them have taken up services.
Every so often, at a time of its own choosing, the government and NBN Co. drip feed titbits of this information. But what we really want for the NBN, and what the Australian public should rightly demand for the NBN, when the government is spending tens of billions of dollars of taxpayer money—all of which is borrowed, all of which is public debt on this project—is some level of accountability. The people rightly expect some level of transparency.
When the government shut down scrutiny of NBN Co. in regard to the application of FOI laws, when the government refused to allow the longstanding Public Works Committee of this parliament to scrutinise the building of the nation's largest ever public works infrastructure project, what did they say? They said, 'We will give you a special forum to ensure the accountability of the NBN and to ensure transparency.' 'That special forum we will give you,' they said, 'is the Joint Standing Committee on the NBN.' What are we getting out of that? Of course, we are getting sweet little out of that because the government refuses and NBN Co. is unable to provide a series of consistent updates on key performance indicators about what is actually happening. So much for that being the vehicle of transparency and accountability for this project, because the government has failed terribly to provide the information necessary for the committee to act as a vehicle for transparency and accountability. Again we see the government speak with a forked tongue in this regard. They promised that this joint standing committee would be the vehicle for transparency, but they are failing to deliver.
Senator Wong interjecting—
Senator BIRMINGHAM: Senator Wong wants to join in the debate. As finance minister, she should be very, very concerned about Senator Conroy's application of this project. Senator Wong, of course, is the joint shareholder of the NBN.
Senator WONG: South Australians want it.
Senator BIRMINGHAM:You want to raise South Australia, Senator Wong? I will give you a little hint there: South Australia is the one state for which NBN Co. has failed to deliver a contract to deliver the fibre. So South Australia is actually coming last with regard to the NBN. South Australia is not getting the fibre deployment that your government has promised, and what is that going to mean? What that means is we will see—
Senator CONROY: a point of order, Madam Temporary Chair: one and a half hours in this chamber and those opposite have not once been relevant to the bill. Not one vote in one and a half hours. Nothing but a shameless filibuster is going on in this chamber right now. I ask you to draw the senator back to the bill.
Senator BIRMINGHAM: (South Australia) (18:13): We clearly have a tactic being run by the minister present. That tactic is obviously to ignore all questions or comments that come from the opposition. He has made that clear for some period of time now. In the main, we have asked about the viability of greenfield operators; he was not interested in answering those questions. When asked about NBN Co.'s future pricing arrangements and, in particular, their application to the ACCC, he was not interested in answering those questions. So we are just not hearing from the minister in this regard. As I indicated in the earlier debate today, I am realistic now about these amendments. I would like to see the minister speak plainly and honestly to the Senate, to the Australian people, to the stakeholders in the communications industry and particularly to the people whose jobs and businesses are on the line as a result of this legislation about what the impact will be, but he appears to be unwilling to do that in this chamber, unwilling to provide the type of clarity that we think is warranted.
I am not going to keep the Senate going forever on this, because it is obvious that the minister is not going to come to the party in that regard. That is, as I said just prior to question time, symbolic of the approach that the government take and of the overall contempt and arrogance that they demonstrate towards this chamber, indeed to the entire parliament, on so many, many fronts. Most recently, as I highlighted in an MPI speech, they have demonstrated great contempt with the way that the carbon tax bills will be treated in terms of parliamentary scrutiny, especially scrutiny by the committee systems of this parliament, compared with what happened with the GST.
I will turn now to one area of the amendments that I have moved that has not been explored in any great detail and that the government has not particularly addressed to date. Senator Ludlam earlier posed some questions in regard to this, and we had an exchange about it. It is the issue relating to the setting of minimum conditions for the installation of fibre, the process by which those minimum conditions are set and who actually sets those conditions. We see in the bill as it is presented, in clause 372B(2), the requirement that:
A person must not install a line in the project area, or any of the project areas, for a real estate development project, unless:
(a) the line is an optical fibre line; and
(b) the conditions (if any) specified in an instrument under subsection (4) are satisfied.
And in proposed subsection (4) it says:
The Minister may, by legislative instrument, specify conditions for the purposes of paragraph (2)(b).
That appears to give basically all power to the minister in terms of setting such conditions, with no particular restraint, condition or otherwise on the minister's activities in that regard. The opposition has proposed an additional subsection (4A), which states simply:
The Minister must consult the ACMA and relevant industry bodies before making an instrument under subsection (4).
This is reflected in the other relevant proposed subsection, namely 372C(4). We think that that is a pretty reasonable and sensible point to insert to ensure that there is a level of independent consultation that goes on in the development of these guidelines and this legislative instrument that will outline the conditions necessary to satisfy the installation of optical fibre in a real estate development.
The concern—and it has been expressed in numerous places and I have highlighted it here before—is that, without at least some type of independent oversight of the minister's decision-making powers in this regard, we will see a situation where the minister will presumably be acting on the advice, demands and needs of NBN Co. and of NBN Co. exclusively. That of course could provide another means to shut out whatever is left of those greenfields operators who may still manage to find some work under the other parts of this legislation.
So, Minister, I am attempting to bring you back to some of the detail of the legislation, noting that you will not give an answer about any of the other issues that Senator Macdonald or I have raised. Could you at least with these proposed sections outline how you envisage the conditions of such an instrument being developed, who you believe you would be obliged to consult with and why the government thinks that it is unreasonable to require in the legislation some degree of consultation with the relevant statutory body and other relevant stakeholders?
Senator BIRMINGHAM: (South Australia) (18:21): I thank the minister for that. That is useful information for the chamber and indeed is an answer to at least part of the question. It is an answer to how at present he envisages such an instrument being developed and the conditions for such an instrument being developed. It does not answer why then he believes that all future ministers—as this legislation will apply to those who come after you, Senator Conroy, you will not be there forever; yes, even you will not be there forever—
Senator CONROY: Even I have to concede that.
Senator BIRMINGHAM: I am pleased to hear that. This legislation will apply to all future ministers but with no condition that any minister actually follows such industry standards, follows the consultative approach that you inform us of with these current guidelines. I assume from your statement that you would base the legislative instrument under this bill, if it passes, on these current guidelines. There is no requirement for ministers to follow that process. If there is, please point me to where in the legislation that requirement is, because I cannot see it at present in what appears to be a bill that gives the minister carte blanche to develop the legislative instrument as they see fit.
I look forward to being corrected if you can, but I think that is the secondary part of the issue that I was raising. You have addressed the primary part, at least in terms of how you as minister propose to apply this section of the legislation—that is, you would follow the industry consultative process that you just outlined and adopt the standards that it recommends as the conditions as the instrument within these clauses of the legislation. But what ensures, as a safety mechanism in this legislation, that all of your successors as ministers for communications will follow the same pathway?
Senator BIRMINGHAM: South Australia) (18:25): I will bark a little longer. Minister, I appreciate your outlining the mechanism under the existing act and outlining the mechanism for the process of self-regulation. But this bill appears to provide you and future ministers with an unfettered capacity to impose government regulation on the industry in this space. You may choose not to go down that path. You may choose to simply apply the regulation developed by the industry through the mechanisms you have described. Or you or a future minister may choose under this bill to do whatever they want and to disregard that process for the application of self-regulation. My concern is not with how the current act works; my concern and my question are how this bill will work—and you can give us assurances at present about how you as minister will treat the matter, but as I said before you will not be the minister forever—
Senator WILLIAMS: Yes, that's for sure!
Senator BIRMINGHAM:Senator Williams has his eyes on the communications portfolio, you know, Senator Conroy!
Senator CONROY: God help the country!
Senator McEWEN: We'll have carrier pigeons everywhere!
Senator BIRMINGHAM:That is right! Inverell is going to have a gold-plated service! To come back to the point: the question really is particular to this bill. If you have such confidence in the industry self-regulatory requirements that are there at present and they operate effectively to ensure that the industry has a good self-regulatory standard in place, why do you need in this bill the capacity to set the conditions and specify an instrument that is specified in clauses 372B(4) and 372C(4)? Why do you need those provisions if the self-regulatory standard that you outlined before works so effectively?
Senator BIRMINGHAM: (South Australia) (18:28): Thank you, Minister. So they provide a reserve power to fast-track the process. That being the case, should there not be some limitation on that reserve power that ensures an obligation of the minister of the day to consult with the relevant statutory body and with relevant industry groups? Why is it that this reserve power appears to be unfettered in its application in the legislation?
Senator BIRMINGHAM: (South Australia) (18:29): It is the height of arrogance from the executive, and executives of many different governments end up guilty of it, Senator Conroy, but it is the job of the parliament to worry about what a future minister may do. When we pass legislation through this place it is not passed just for the next six or 12 months, unless it has a sunset clause on it, or for any particular period of time. It is passed indefinitely until such time as the parliament changes it. It is passed in a manner that applies to all future ministers, equally to all of them, equally to you and to whoever comes after you. Senator Ludlam might come next if the Greens and Senator Brown get their way and manage to knock you guys off as the majority party on the left of Australian politics. I look forward to Senator Ludlam sitting there. I am not sure whether I would look forward to Senator Brown sitting down here, but I would look forward to Senator Ludlam sitting there and following you. I hope, of course, that it is Mr Turnbull who follows you as minister.
However, the point for the minister is that reserve powers need not necessarily, should not necessarily, be unfettered reserve powers. Reserve powers are simply powers to be used sparingly in exceptional circumstances, yes, but those powers still need limitations attached to them as well. I understand, obviously, the minister is not about to budge on the coalition's amendments but I do think, in wrapping up the debate around these amendments, that it is important to understand that they seek to achieve two particular goals.
One goal is to ensure that, whoever the minister of the day is, they do not have an unfettered capacity to impose regulations and criteria on the industry for the laying of optical fibre in a manner that advantages NBN Co. and that disadvantages private operators. The second goal is critical to all of this. It is the overall objective of the opposition's amendments to ensure that some choice, some competition, actually remains in the deployment of fibre in greenfield sites. I have argued this case many times before, so I am not going to go over it at length.
Senator Conroy interjecting—
Senator BIRMINGHAM: You know, Minister, that attitude diminishes the chance of votes. If you had listened to what I was saying you might have noted that I was attempting to provide some concluding remarks around these amendments and to sum up the opposition's arguments for them. Perhaps that would lead to a vote. So, Minister, do not be too quick to jump to your judgment on these matters. In particular do not be too quick to provoke, because you never know where provocation may lead sometimes.
As I was saying, there are two key attributes to these amendments. One is providing some restriction on the executive power to put in place regulations that could advantage NBN Co. and disadvantage private providers and private competitors in the optical fibre space. The second is to ensure that we have some level of competition in this space and that we do not have the ridiculous situation where you pretend developers have a choice between having fibre laid by a private provider or having fibre laid by the NBN Co. when in fact, commercially, there is no choice because a private provider will charge for the service and NBN Co. is going to be offering it for free in terms of direct costs. Quite clearly that is going to drive many, many private providers out of business. You will not admit that in the chamber but the opposition has heard the concerns, has acted on them and has presented these amendments.
I would hope and urge the chamber and in particular Senator Ludlam and the Greens to reconsider their opposition to these amendments. They will not stop fibre being laid in new developments around Australia. They will not impact, one iota, on who gets fibre or who does not. All they will do is ensure that people who have been innovators and done the right thing and gone into this space and built businesses for the purpose of laying fibre get the chance to continue to do so. That is all it is about. It is about a fair go for Australian businesses who have done the right thing and been pioneers in this space and who are going to be shut down as a result of the government's legislation. I would urge the Senate to support the amendments.
Senator BIRMINGHAM: (18:35): Thank you for the gratuitous comments at the end, Minister. Yes, legislative instruments are subject to disallowance. I was aware of that fact. I think everybody in the chamber is aware of that fact. There is a period of time, however, and in these amendments we have attempted to ensure that, in the drafting of such legislative instruments, there is a clear process that requires you or future ministers to consult and engage. So, do not come in here and tell us that it is a legislative instrument. As is not uncommon, we want to put in place a process that ensures you must talk to certain stakeholders and go through that process rather than purely rely upon the legislative process to fix an errant or wayward minister. That is the intent of those changes.
Senator BIRMINGHAM:South Australia) (18:44): by leave—I move amendments (1) and (12) on sheet 7133:
(1) Clause 2, page 2 (at the end of the table), add:
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4. Schedule 1, Part 3
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The later of:
(a) the day after this Act receives the Royal Assent; and
(b) immediately after the commencement of Part 3 of Schedule 1 to the Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011.
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| |
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[exemption from Parts 7 and 8 for networks operated by the original providers]
(12) Schedule 1, page 33 (after line 4), at the end of the Schedule, add:
Part 3—Amendments relating to Parts 7 and 8 of the Telecommunications Act 1997
Telecommunications Act 1997
17 After subsection 141(1)
Insert:
(1A) However, this section does not apply to a local access line that:
(a) was installed in a project area of a real estate development project after the commencement of Part 3 of Schedule 1 to the Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011; and
(b) was installed in compliance with any applicable provisions of Part 20A; and
(c) was installed by a person that is not Telstra or NBN Co; and
(d) is owned by that person, or by a body corporate related to that person; and
(e) is operated by that person, or by a body corporate related to that person; and
(f) is used only to supply carriage services to end-users in the project area.
18 Subsection 141(10) (after the definition of national broadband network)
Insert:
related, of bodies corporate, has the same meaning as in the Competition and Consumer Act 2010.
19 Section 142A (after the definition of rail corporation)
Insert:
related, of bodies corporate, has the same meaning as in the Competition and Consumer Act 2010.
20 After subsection 143(1)
Insert:
(1A) However, this section does not apply to a local access line that:
(a) was installed in a project area of a real estate development project after the commencement of Part 3 of Schedule 1 to the Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011; and
(b) was installed in compliance with any applicable provisions of Part 20A; and
(c) was installed by a person that is not Telstra or NBN Co; and
(d) is owned by that person, or by a body corporate related to that person; and
(e) is operated by that person, or by a body corporate related to that person; and
(f) is used only to supply carriage services to end-users in the project area.
[exemption from Parts 7 and 8 for networks operated by the original providers]
I will speak very briefly to these amendments. Many of the substantive issues have been canvassed in regard to the previous amendments. Suffice it to say that these amendments seek to provide additional provisions to parts 7 and 8 of the Telecommunications Act that would exempt operators from these parts should those operators run a network that is not owned or operated by NBN Co. or Telstra, that is installed in a new development under a contract between the network's owner and the developer, that the network is owned and operated by the same entity which built it and that the network delivers retail services only to persons who reside in the development.
We think this has the potential to preserve competition in the market for the provision of fibre infrastructure and would allow competitive greenfields operators to install and operate new fibre networks in new developments without the need to meet these parts of the act but still be subject to appropriate other conditions, including the right of other retailers to access their networks. This would preserve some competition not just in the delivery and build of networks but also in the provision of services over those networks. I commend the amendments to the chamber.
Senator Conroy is being very misleading in his comments there. It is not the case that this would prevent retail operators operating over these networks. It would just provide another wholesale competitor to NBN Co.
Question negatived.
Bill agreed to.
Bill reported without amendments; report adopted.