Nash Stuart: Telecommunications (TSO Broadband and Other Matters) Amendment Bill — In Committee 
Nash Stuart: Telecommunications (TSO Broadband and Other Matters) Amendment Bill — In Committee 
[Volume:673;Page:19578] 
STUART NASH (Labour) 
: 
 I will speak on Part 2 of the Telecommunications (TSO Broadband and Other Matters) Amendment Bill. We are talking about the undertaking relating to networks developed with Crown funding as part of the Ultra-fast Broadband Initiative. There are many concerns with regard to this bill. My colleagues David Cunliffe Clare Curran and Maryan Street have talked about them but I will narrow it down a little bit.  
First I want to say that—and we are talking about section 156AD(2)(ab) and (b)(iii) as inserted by clause 24—we are talking about 1 January 2020. We are talking about 8½ years away. Kids in kindy today will be in high school when this is rolled out. Labour will be preparing for its election to a fourth term. Steven Joyce who will have been leader will have been rolled by Amy Adams who will then have been displaced by Aaron Gilmore. We are talking about a time so far into the future that it is hard to take this matter seriously. This was one of the Government’s major election promises but we are talking about 2020. 
Sandra Goudie 
: What’s that got to do with this part? Is that member talking about the bill? 
STUART NASH 
: I will miss Sandra Goudie when she retires next year because she asked what this has got to do with the bill. Well if we look at section 156AD(2)—perhaps Mr Joyce would like to go and talk to her—we see the words “provide for the LFC to supply unbundled layer 1 services on all parts of its fibre-to-the-premises access network on and after 1 January 2020;”. This goes to the heart of the bill I tell Ms Goudie. I think she should stay on. She should tell Scott Simpson that no she wants to come back because we would love to have her back. She is great for the Labour Party so please stay.  
There is something else I would like to talk about as well. We are talking about 156AD(2)(c) which states: “provide for the LFC”—this bill is full of these acronyms; an LFC is a local fibre company—“to deal with the UFB partner on arm’s-length terms”. But then it says in brackets: “(unless the UFB partner and the LFC are not separate entities);”. I would have thought that that provides a bit of a conflict of interest and I would have thought that there is a real risk that a service provider could provide itself or individual access seekers with better ultra-fast broadband services and more attractive prices compared with others. There is a slight conflict of interest I would have thought if the ultra-fast broadband service provider and the local fibre company are in fact the same entity. The bill provides that they can be the same entity. There is not enough information here.  
Let us talk about paragraph (d) of this section which states: “provide for disclosure of relevant information to the Commission to support the Commission’s assessment of compliance”. Again what does “relevant information” mean? It is quite a broad term; it is often used in bills in Parliament. I normally would not ask about this but the Minister and the Commerce Commission have been at such loggerheads all the way through the this bill and all the way through this whole process that I am slightly sceptical that the Commerce Commission and the Minister will actually be able to work in a constructive way to deliver on this part of the bill. That is what I have grave concerns about because the Commerce Commission has actually come out and said numerous times that it did not agree with very fundamental parts of this bill. In fact that is one of the reasons why once upon a time the major part of Part 2 was withdrawn. Mr Joyce understands that; he finally listened to reason. I suspect that Mr Key said to him: “Steven Joyce you’ve got to get rid of this. This is so inequitable that it has to go.” He probably got a lot of pressure at those cocktail parties with his telecommunications company mates. That is just conjecture of course.  
I come to section 156AF. Again this legislation is quite prescriptive. This is quite a large bill. We are talking about section 156AF which sets out what the Minister must and must not do and what everyone has to do. It is headed: “Minister may determine further requirements for undertakings”. After being incredibly prescriptive the bill then says that if the Minister wants to add anything else he can. Why do we have the rest of it if it is up to the Minister’s discretion? Why did we not just get a small bill about 5 pages long which says the Minister can do whatever he wants? In essence this bill allows the Minister to do pretty much what he wants. “The Minister may determine further requirements with which an undertaking must comply.” I wonder whether the Minister actually has in mind any further requirements and undertakings that he thinks he may want to throw into this. Is this provision just in case he has not got it down pat or is it because there is a cunning plan here to sneak something in under the radar? That would not be the first time with this bill. 
We come to section 156AG “Minister may issue and consult on draft determination”. But in that section “may” was changed to “must”. I think the drafters actually picked this up and they have changed “may” to “must”. It cuts to the heart of the argument in relation to this bill. There are so many “mays”. A “must” in my view signifies a legislative requirement. Here we go: “Before making a determination under section 156AF the Minister must prepare a draft determination and consult on that draft”. It used to read “may”; it used to read “the Minister may prepare a draft” but someone in their wisdom—no doubt it was Clare Curran or David Cunliffe both of whom went through this bill with a fine-tooth comb—finally said we should hold on a second because there was too much discretion for the Minister. Let us be honest about this: by the time this comes in Steven Joyce will have come and gone as a Minister. Who knows who the Minister will be? It will probably be Clare Curran actually. There are so many “mays”; there is so much ambiguity here and it is so wide that we could drive a double-decker bus through it.  
Section 156AG goes on to state: “must prepare a draft determination and consult on that draft with those persons that the Minister considers have a material interest in the determination.” Again we have to ask how the Minister will consider those who have a material interest in this matter. On a lot of this bill the Minister actually did not consult those who our team and I would have thought actually had material considerations. In fact the Minister totally ignored Commerce Commission advice on this. It says here he must consult but it does not say he must listen. I suppose the Minister can write a letter send it out to whomever and say that as part of the conditions of this bill he has to send a letter and if there is anything the recipients want to talk about they should send it in.  
When we look at section 156AJ which is under the subheading “Process for submission and consideration of undertakings” we see a whole lot about the fact that local fibre companies “may” submit undertakings for approval by the Minister and in section 156AK the fact that the Minister “may” approve or decline undertakings. Again the wording around “may” or “must” is quite significant. Let us not underestimate this point. As mentioned if the provision said the Minister must approve or decline undertakings then he has a legislative requirement to do that. I am talking about section 156AK “Minister may approve or decline undertakings”. I ask the Minister whether he sees any conditions or any sort of obligations under which he may have to approve or decline undertakings or whether this provision was just thrown in as open-ended legislation in order to do whatever he wants when anything arises.  
When we come—I am jumping all over the place here—to section 156AD(2A) we are talking about resolution: “An undertaking may specify a mechanism for resolution”. I would have thought at least when it comes to conflict resolution that the legislation would say “An undertaking must specify a mechanism for resolution”. It goes on: “by a suitably qualified and experienced independent person of any disputes that arise between the LFC and access seekers after the undertaking is approved.” Why would the House not want to specify that if there is a dispute between a local fibre company and an access seeker a disputes resolution must be set up? The bill just says “may” which just leaves it completely open. Dr Wayne Mapp as someone with a PhD in law must look at this legislation and think: “Goodness me. Thank God that’s not my bill because I wouldn’t have drafted something as open-ended and ambiguous as that.” I tell Dr Mapp not to worry. 
Chris Hipkins 
: I wouldn’t count on that. 
STUART NASH 
: That is true. Maybe that is why he is leaving. Maybe he did draft this bill; I am not too sure. I tell members that it really is a bit of a dog’s breakfast.  
We are not just talking about any legislation here. We are talking about legislation that will split up the State monopoly. I would have liked to see this legislation be a lot tighter and for it to have legislative intent to require the Minister to set up these entities.