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International Law

: Open and Shut

Company structure shouldn't shade NBN Co from sun shining in

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Business Spectator:

The National Broadband Network Co (NBN) will be exempt from freedom of information laws, unlike other federal government agencies, according to a report by the Australian Financial Review (AFR)...The NBN's exemption, on the basis that it is an incorporated company according to NBN chief legal counsel Justin Forsell, is in contrast to the precedent applied to Telstra prior to its privatisation when the telecommunications company was subject to FOI laws.

Technically Mr Forsell is right, but whether that's the end of the matter is another question. The Government claims to be committed to openness and transparency, suffered some political pain because of its patchy record and foot dragging approach to disclosures concerning the NBN, and doesn't have the numbers in Parliament. The Prime Minister
brushed it off this morning saying it's the result of "the ordinary operation of the Freedom of Information Act." The Opposition and The Greens foreshadow a challenge when the Senate resumes.

The definitions in Section 4 of the Freedom Act scope the application of the act. An agency is a Department or prescribed authority. Prescribed authority includes a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment or an Order?in?Council, other than an incorporated company....

However other elements of the definition open the door to extending the act to NBN Co. The definition of prescribed authority goes on to include "any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act, being...(i) a body established by the Governor?General or by a Minister; or (ii) an incorporated company...over which the Commonwealth is in a position to exercise control.."

The broader issue of what bodies are, are not and should be covered by the act was not addressed in the Rudd Government's 2009-2010 reforms, and hasn't been the subject of serious debate and analysis since the act was drafted in the 70's and 80's. There has been a lot of privatisation and engagement by private sector players in what used to be government business in those days.

Definitional issues to one side, the act also includes a list of bodies exempt in respect of all or some functions. That needs re-examination as well. Sensitive commercial information is well protected by normal exemptions and doesn't require that the agency be excluded from the act.

The NBN issue is the tip of a large iceberg.

There is a strong case for applying the highest standards of accountability and transparency to bodies carrying out essential and critical community service roles-like a national broadband network- regardless of their structure or ownership.

Full post as published by Open and Shut on January 17, 2011 (boomark / email).