18 December 2025
Waldek
Via: Right to Know
xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
nbn ref: FOI2526022
Dear Waldek,
Freedom of Information – Access Decision
I am writing in relation to your application
made under the
Freedom of Information Act, 1982 (
FOI Act)
seeking access to documents.
The Statement of Reasons (
attached) outlines the specific terms of the FOI request, the decision-maker’s
findings and the access decision.
An FOI decision may be reviewed, subject to sections 53A and 54 of the FOI Act. Please refer to the Office of
the Australian Information Commissioner’s website at the following
link, which provides details about your
rights of review and other avenues of redress under the FOI Act.
Please feel free to contact me
at xxxxxxxxxx@xxxxx.xxx.xx if you have any questions, or if you would like to
discuss your FOI application.
Yours sincerely
Rohan Singh
nbn Freedom of Information Officer
100 Mount St
xxxx@xxx.xxx.xx
©2024
nbn co limited | ABN 86 136 533 741
North Sydney NSW 2060
nbn.com.au
FREEDOM OF INFORMATION REQUEST – FOI2526022
ACCESS DECISION
STATEMENT OF REASONS – 18 December 2025
Summary of Access Decision
1.
I find that the nbn Confidential Submission (as defined below) is not subject to the
Freedom of
Information Act 1982 (the
FOI Act) because they relate to
nbn’s commercial activities. Accordingly, I
refuse access to the nbn Confidential Submission.
Background – nbn and the FOI Act
2.
nbn is a government business enterprise (
GBE), which has the mandate of realising the Australian
Government’s vision for the development and operation of Australia’s broadband infrastructure.
3.
nbn recognises that information is a vital and an invaluable resource, both for the company and for
the broader Australian community. That is why
nbn fosters and promotes a pro-disclosure culture,
with the goal of creating an organisation that is open, transparent, and accountable. To that end,
nbn makes a large amount of information freely available to the public on our website:
http://nbnco.com.au/.
4.
nbn also manages its information assets within the terms and spirit of the FOI Act. We endeavour to
release information proactively, while considering our commercial and other legal obligations.
5.
Subject to relevant exemptions, the FOI Act gives the Australian community the right to access
documents held by Commonwealth Government agencies, as well as “prescribed authorities” such
as
nbn.
6.
Under subsection 23(1) of the FOI Act,
nbn’s Chief Executive Officer authorises me, to make
decisions about access to documents and related matters under the FOI Act.
7.
Under subsection 26(1) of the FOI Act, I am required to provide a Statement of Reasons for my
decisions in relation to FOI applications. I am also required to set out my findings on any material
questions of fact, referring to the material upon which those findings were based. Those findings are
outlined below.
Application Chronology and Scope of Request
8.
On 17 December 2025 nbn co received an email from the Department of the Attorney General (
the Department) requesting nbn’s comments to an FOI Request the Department had received from the
Applicant (Department reference: FOI25/593).
9.
The FOI Request sought access to documents regarding submissions made to the
Public Interest
Disclosure and Other Legislation Amendment (Whistleblower Protections) Bill 2025 (
the Bill) that
2
100 Mount St
xxxx@xxx.xxx.xx
©2024
nbn co limited | ABN 86 136 533 741
North Sydney NSW 2060
nbn.com.au
were not published on the Department’s website
. One of the documents that fell within the scope of
the FOI Request originated with nbn.
10.
On 17 December 2025, nbn wrote to the Department requesting a transfer of the part of the request
that relates to nbn under sections 16(3) and 16(3A) of the FOI Act. Section 16(3) of the FOI Act
applies to nbn as an agency specified in Part II of Schedule 2, and the nbn Submission is more
closely connected with the functions of nbn in respect of which nbn is exempt from the operation of
the FOI Act, specifically as it includes information relating to nbn’s commercial activities (
CAC)
under s 7(3A) and Schedule 2 of the FOI Act.
11.
On 18 December 2025, the Department wrote to nbn agreeing to transfer part of the FOI Request to
nbn under sections 16(3) and 16(3A).
12.
On the date set out above, I made my access decision, as outlined below.
Findings on material questions of fact
13.
The document located by the Department in scope of and responsive to the FOI Request is nbn’s
confidential submission made to the Department in relation to the Bill (
nbn Confidential
Submission).
Access Decision
14.
In undertaking my review of the nbn Confidential Submission, it is my view, having regard to the
nature and subject matter of the request and the relevant provisions of the FOI Act, that one or more
exemptions to release are applicable, as outlined below.
15.
In making my decision, I took into account relevant parts of the FOI Act and related legislation, the
Office of the Australian Information Commissioner (
OAIC) FOI Guidelines, relevant case law and
other sources, including t
he general background information concerning
nbn’s commercial
activities carve-out. That background document references two reviews by the Australian
Information Commissioner that considered nbn’s Commercial Activities Carve-out (
CAC): the
Internode Decision (in January 2012)
, Battersby Decision (in July 2013)
and Bogle Decision (in
February 2025).
nbn’s commercial activities carve-out
16.
Application of the CAC is a threshold issue, and I must consider it first before considering any other
grounds for refusal of access.
17.
Section 7(3A) of the FOI Act excludes documents that are related to nbn’s “commercial activities”
from the operation of the FOI Act. Part II of Schedule 2 to the FOI Act specifies that certain agencies
are exempt from the operation of the FOI Act in respect of particular documents. nbn is exempt from
the operation of the FOI Act “in relation to documents in respect of its commercial activities”.
18.
Per section 7(3A) of the FOI Act, “commercial activities” means:
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100 Mount St
xxxx@xxx.xxx.xx
©2024
nbn co limited | ABN 86 136 533 741
North Sydney NSW 2060
nbn.com.au
(a) activities carried on by NBN Co on a commercial basis; or
(b) activities, carried on by NBN Co, that may reasonably be expected in the foreseeable future to be
carried on by NBN Co on a commercial basis.
19.
As per section 7(4) of the FOI Act, in "
subsection (2AA) and Part II of Schedule 2, a reference to
documents in respect of particular activities shall be read as a reference to documents received or
brought into existence in the course of, or for the purposes of, the carrying on of those activities."
20.
Relevantly,
nbn:
a. is a public company limited by shares incorporated under the
Corporations Act 2001 (Cth)
(
Corporations Act);
b. is wholly owned by the Commonwealth and a prescribed GBE;
c. is subject to the same obligations as other public companies incorporated under the
Corporations Act;
d. generates sales and profit; and
e. operates for a commercial purpose, with a mandate or objective to earn at least a commercial
rate of return.
21.
Accordingly,
nbn operates as a commercial entity and, having regard to the foregoing, is bound to do
so.
22.
In the Internode Decision, the then Freedom of Information Commissioner, Dr James Popple,
considered the meaning of "commercial activities" in relation to
nbn's CAC. Relevantly, he noted as
follows:
a. in
Bell v Commonwealth Scientific and Industrial Research Organisation, the Full Court of the
Federal Court considered the meaning of "commercial activities" with reference to analogous
provisions to sections 7(2) and 7(3A) of the FOI Act. In that case, the Court said that "
activities
are conducted on a commercial basis if they are related to, engaged in or used for commerce"
and referred to
"the importance of the whole of the circumstances including the commercial
goal (profit making or the generation of income or return) in determining whether particular
activities are sufficiently related to commerce to be characterised as commercial activities"
[
Bell v Commonwealth Scientific and Industrial Research Organisation [2008] FCAFC 40 as
referred to in
Internode Pty Ltd and NBN Co Ltd [2012] AICmr4 at paragraph 12.]; and
b. in
Johnston and Australian Postal Corporation, the Administrative Appeals Tribunal concluded
that commercial activity "
can be regarded as a business venture with a profit-making objective
and, strictly speaking, will involve activity to generate trade and sales with a view to profit. This is
particularly so when the volume of activity is on a large scale". [
Johnston and Australian Postal
Corporation [2006] AATA 144 as referred to in
Internode Pty Ltd and NBN Co Ltd [2012] AICmr4
at paragraph 13.]
23.
The subsequent Battersby Decision reinforced the aforementioned considerations and further
noted:
4
100 Mount St
xxxx@xxx.xxx.xx
©2024
nbn co limited | ABN 86 136 533 741
North Sydney NSW 2060
nbn.com.au
“…
there is no doubt that the definition of ‘commercial activities’ is broader for NBN Co than
it is for other government business enterprises listed in Part II of Schedule 2.” [
Battersby and
NBN Co Ltd [2013] AICmr 61 at paragraph 16.]
24.
Recent authority from the Bogle Decision further affirms the broad approach to the CAC established
in Internode and Battersby. The Tribunal confirmed that the carve-out is not limited to documents
that are overtly commercial or financial in nature, nor is there any requirement for a document to
have commercial value or significance. The Bogle Decision makes clear that documents which are
ancillary to, or administrative in support of, nbn’s commercial activities also fall within the CAC if
created in the course of those activities. The Tribunal emphasised that activities which support or
are incidental to nbn’s commercial objectives, including internal processes, resource management,
and administrative functions, are nonetheless integral to its commercial operations in which case
they would be covered by the carve-out. The CAC is therefore not confined to network build or
infrastructure projects but extends to a wide range of activities essential to nbn’s commercial
objectives, including administrative and support functions. [
NBN Co Ltd and Bogle [2025] ARTA 67]
25.
As outlined above, there are various factors that may weigh in favour of an activity being categorised
as commercial for the purposes of the FOI Act, such as (among other factors), if those activities:
a. have a commercial goal or purpose;
b. are related to, engaged in, or used for commerce; and/or
c. are related to a profit-making motive, generating income or revenue, among other matters.
26.
Furthermore, for the CAC to apply, the document under consideration need not meet a commercial
value threshold or be a commercially significant document. All that is required is that the document
is received by
nbn or brought into existence in the course of, or for the purposes of, the carrying on of
nbn’s commercial activities.
Application to the nbn Confidential Submission
27. The nbn Confidential Submission was prepared by nbn as a means to comment on the Bill on a
confidential basis. Government consultations are an essential part of the policy-making process in
that it allows policymakers to gather diverse perspectives, identify unintended consequences and
refine proposals, which can lead to more robust, practical and widely accepted legislation. While
transparency is important, confidential submissions allows full and frank disclosure by entities who
may wish to share commercially sensitive data, compliance strategies, cost implications or risk
assessments without fear of public disclosure, which is critical for GBEs and other regulated
entities, such as nbn. Moreover, confidential submissions fosters candid feedback on legal,
operational and financial implications, which improves the quality of policy advice.
28. Relevantly, the nbn Confidential Submission includes information about nbn’s internal compliance
frameworks and processes, in addition to associated investments made and cost structures used to
meet compliance obligations which are commercially sensitive. The nbn Confidential Submission
focuses on the operational and financial impact of the whistleblower regimes on nbn. These
compliance costs directly affect nbn’s business operations and resource allocation, which are
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100 Mount St
xxxx@xxx.xxx.xx
©2024
nbn co limited | ABN 86 136 533 741
North Sydney NSW 2060
nbn.com.au
commercial considerations and intrinsically linked to nbn operating as a commercial entity. The nbn
Confidential Submission also includes content related to reducing complexity and costs for nbn.
This is a commercial objective because it ensures that nbn can maintain operational efficiency and
competitiveness.
29. Moreover, the nbn Confidential Submission addresses governance and risk management processes
that underpin nbn’s ability to operate efficiently and maintain its commercial viability. Managing
whistleblower obligations is integral to protecting nbn’s reputation and legal position in the
marketplace. The nbn Confidential Submission also discusses nbn’s corporate structure and
obligations under other legislation. These obligations shape nbn’s compliance strategy and
influence how it conducts its commercial activities.
30. Accordingly, the release of the nbn Confidential Submission could undermine
nbn’s ability to
function as any other commercial player in the marketplace, thereby potentially subverting
Parliament’s intention in providing nbn with the CAC.
31. In summary, while the subject matter involves legislative reform, the nbn Confidential Submission is
framed around the reform’s commercial implications for nbn. These matters are closely connected
to nbn’s commercial activities within the meaning of Schedule 2, Part II of the FOI Act.
32. I am therefore of the opinion that the nbn Confidential Submission relates to
nbn’s commercial
activities. Accordingly, the FOI Act does not apply to the nbn Confidential Submission, and I refuse
access to it.
Decision-making Time and Fees
27.
nbn staff spent time reviewing the nbn Confidential Submission to respond to the request.
Additionally, I have spent time in drafting and finalising this FOI decision, in addition to completing
relevant correspondence in respect of the request. However, I have on this occasion exercised my
discretion to waive all relevant fees.
28.
If you are dissatisfied with this decision, you have certain rights of review. Details regarding your
rights of review and appeal are outlined in the covering letter, provided with this Statement of
Reasons.
*****
6
100 Mount St
xxxx@xxx.xxx.xx
©2024
nbn co limited | ABN 86 136 533 741
North Sydney NSW 2060
nbn.com.au
