Nash Stuart: Telecommunications (TSO Broadband and Other Matters) Amendment Bill — In Committee Speaker Recalled In Committee 
Nash Stuart: Telecommunications (TSO Broadband and Other Matters) Amendment Bill — In Committee Speaker Recalled In Committee 
[Volume:673;Page:19490] 
STUART NASH (Labour) 
: 
 I also take slight umbrage at Sam Lotu-Iiga’s comments. I did not deride the Minister in the chair the Minister for Communications and Information Technology at all. I called him smart intelligent and cunning. To most people those terms if not of endearment are certainly not disparaging. 
I will talk specifically about clause 23C and I have a number of questions and I do not think they are contentious. I will ask a number of questions that I am hoping the Minister will take a quick call on and clarify them. If I have questions about this then no doubt there are people out there who are a lot more intelligent than I am who are also asking the same questions if they have the bill in front of them. 
The first thing for example is in clause 23C “Decision of Minister concerning approval of asset allocation plan”. Subclause (1) states: “The Minister must as soon as practicable after receiving the asset allocation plan—” make a decision. I just wonder what the process will be with regard to that. Does the Minister envisage that he will take this to Cabinet or will he just make the decision himself? Subclause (2) states: “Before making a decision … the Minister may consult the Commission.” He does not have to consult the commission but he may do. I wonder first whether the Minister will take this to Cabinet and second whether it is the Minister’s intention to consult the commission. He does not have to under the Act but the bill states that he may consult the commission. I am just going to jump around a little bit but I will come back to that point. 
With regard to the approval of Chorus undertakings clause 23GB(1) states that the Minister must consult the commission. Obviously there is a legal obligation under that clause but there is not a legal obligation for him to consult the commission with regard to Telecom’s asset allocation plan. I just wonder whether the Minister is thinking of doing that. 
I go down to clause 23F “Telecom must make overview of asset allocation plan publicly available”. We have some words there that I think the Minister will have a view of in his mind but just for clarification it states: “(1) Telecom must as soon as practicable after approval of the asset allocation plan under section 23E but no later than separation day make an overview of the plan publicly available.” Again I do not know whether “as soon as practicable” has a legal definition because I am not a lawyer but I wonder whether the Minister envisages that “as soon as practicable” is perhaps 2 weeks a month or a couple of days. The clause does state “but no later than separation day” so I would be slightly concerned if the asset allocation plan had been approved by the Minister a separation day—which we can talk about later on—is announced and then 1 day before the separation day Telecom makes this overview publicly available. It does not seem to be that equitable. It would be good if this overview was publicly available so again the industry and the people of New Zealand just had an idea of what that allocation plan was. 
I wonder again whether the Minister has an idea of how long the time will be between his approval of that asset allocation plan and separation day. Obviously a lot of work has to go into the asset allocation plan but I wonder whether he is envisaging this will be a month 6 months or 2 years. I assume it will be at the lower end but I would not mind just knowing whether the Minister has an idea. 
Again we come down to the requirement that Telecom makes the overview of the plan publicly available. I ask whether we are talking about a website here or whether the details will be published on a full page in the  
Dominion Post 
 because “publicly available” means something different to Clare or me from what it means to my grandmother for example. I would like just a little clarification. 
Talking about the requirement that it be made publicly available clause 23F(2) requires “sufficient information … to enable a reasonable person to understand the material aspects of the asset allocation plan.” When we are talking about the reasonable person and sufficient information with regard to Telecom’s separation it is slightly different from the game play of the All Blacks for example. Again I would not mind having a little bit of an idea of what the Minister believes is sufficient information. Will someone be able to read the information and get an understanding of what will go where or will it be pages and pages of little wee words? I would like the Minister to just clarify that. I know that the reasonable person test is a legal test but it would be interesting to know how the reasonable person test comes into play when we are talking about the separation of Telecom assets. Again the Minister may have an answer to that question. 
I go on to clause 23FA—it is not FA at all; it is very important. I am not quite sure what this clause is to do with. Its heading is “Telecom must update Minister and overview on day before separation day”. The phrase “must update the Minister and overview on day of separation” does not quite make sense but anyway. The clause states: “Telecom must on the day before separation”—I assume this is 24 hours before D-Day in essence with regard to this—“(a) make changes to the asset allocation plan in order to update it to take account of— … (ii) trivial differences between the plan as approved and the demerger arrangement; and (b) notify the Minister …”. Again what is trivial? Is the Minister expecting that the allocation plan will be out there? As it says in the bill the Minister before D-Day or “S-Day” has to be notified of any major plans but what is trivial? We are talking about a huge organisation here—in fact it is probably the largest corporate in this country—and “trivial” to that organisation means something different from what it does to a corner dairy for example. 
Clare Curran 
: It’s only going to get larger. 
STUART NASH 
: It will get larger. But I am just curious to note the difference between the meanings of “trivial”. 
The reason I say this is that when we come to clause 23G “Demerger must be in accordance with asset allocation plan”—which makes perfect sense—we see that subclause (2) states: “The High Court may order Telecom to pay to the Crown a pecuniary penalty not exceeding $10 million if the court is satisfied on the application of the Chief Executive of the Ministry that Telecom has failed without reasonable excuse to comply …”. I go back to clause 23FA which states that Telecom must notify the Minister in writing. Does that mean Telecom has to have posted that letter within 24 hours or that the Minister must have received it within 24 hours? Again it comes with “without reasonable excuse”. 
My question here—and I know this can be decided by the court because the clause states that it is up to the High Court to determine—is whether this means that if Telecom has put in writing to the Minister the changes it wants to make it is indemnified from prosecution and a major fine. It may put something in there that is deemed trivial from Telecom’s perspective or it may actually use this clause as an out. Telecom may use it as an out. The chief executive of the ministry may take this matter to court and Telecom will say that it is not liable for a $10 million fine because it notified the Minister. There is a little bit of ambiguity there which I am hoping the Minister will address. I do not think they are difficult questions but it is fair enough to ask them. 
I will now talk about the approval of Chorus undertakings. Clause 23GA states: “Chorus must submit draft undertakings … [within] 20 working days” so it is very specific. But then it states “or any later date before separation day that the Minister may allow.” I am just wondering whether the Minister has an expectation that perhaps 20 days is too short. Does the Minister think that perhaps we should have made it 40 days or 60 days and is he expecting a bit of a delay? There is a little bit of wriggle room here because the only requirement is to submit it before separation day which might not be 20 days; it may be 60 days. I would like just a little bit of clarification on this. 
I come back to the point I made earlier. Clause 23GB(1A) states: “The Minister must consult the Commission” but then it states: “and may consult any other person that the Minister considers has a material interest before deciding whether to approve or decline …”. I am wondering whether the Minister is intending to consult because he does not have a legal obligation to. He has a legal obligation to consult the commission but he does not have a legal obligation to consult anyone else in the industry. It states that the Minister may consult others in the industry and I am just wondering whether he has an expectation that he will allow 2 weeks or maybe 3 weeks in which to go out to those in the industry and consult them to make sure that everything is kosher. That is not a difficult question I would have thought but I would not mind getting the answer to it. Consultation is most important I would have thought. 
We talk about separation day. With regard to separation day Telecom must make certain information publicly available as per clause 23GDA(1) and I am just wondering whether the Minister expects that Telecom will make information about the separation day available at the same time that it makes its asset allocation plan available. The bill states that it may do that although it might not. But I am wondering whether there is an expectation. I would have thought that if Telecom has gone into great detail on an asset allocation plan that the Minister or Cabinet or whoever else may approve then separation day would be quite a big part of that because I have no doubt that there will be a major time line outlining what will happen. I am just wondering whether the Minister could comment on that.