31 Mar 2011

NBN Bills passed - with some changes

by Kate Jordan, Jim FitzSimons, Bruce Lloyd, Toby Ryston-Pratt

On 25 March 2011, four months to the day since their introduction into the House of Representatives, the National Broadband Network Companies Bill 2010 and Telecommunications Legislation Amendments (National Broadband Network Measures - Access Arrangements) Bill 2011 were passed by the Senate in amended forms.

The National Broadband Network Companies Bill establishes the operating, ownership and governance arrangements for NBN Co. Ltd, NBN Tasmania, and any company NBN Co. Ltd controls.

The other bill deals with the regime to facilitate access to the NBN for access seekers.

The Federal Government introduced a swathe of its own amendments in the Senate. It was also forced to make a number of changes and concessions to the Bills to secure the approval of key cross-benchers, Senators Nick Xenophon and Scott Ludlam in negotiations which took place at the last minute on the floor of the Senate.

The amendments mostly deal with the contentious issue of price parity. In effect, the ACCC's powers to regulate anti-competitive conduct, approve access determinations, make binding rules of conduct, or reject undertakings, cannot be exercised if doing so would prevent an NBN corporation from "engaging in conduct that is reasonably necessary to achieve uniform national pricing".

Other amendments affect the stamp duty consequences of the Telstra structural separation, superfast (including deemed superfast) fixed-line networks, the wholesale supply of eligible services and FOI-related amendments which call for a review of the application of the FOI legislation to NBN Co to be carried out in the next 12 months.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.