Sunday, 18 August 2013

NBN: Full Disclosure of the Turnbull Copper/Node Plan legally necessary?

Turnbull claims to have, "by mutual agreement" with the Parliamentary Budget Office (PBO), decided to not submit his NBN Copper/Node Plan for costings. That may be a valid position if the NBN were a fully funded Government programme or if NBN Co were not a registered Australian company: wholly and solely a commercial entity transacting a business.

I believe there are significant legal implications to not fully disclosing to investors all information about the NBN Business that Turnbull is pitching: be clear, this is a pitch for a risky $30 billion investment.

Turnbull has filed what amounts to a Prospectus, an invitation to the public invest in a business, with the proviso that the investors, the taxpayer/voters, have to bear any and all the downside risk: the voting public are obliged to accept covering any and all losses of the Turnbull Copper/Node Plan.

In strict terms, NBN Co is a business and Turnbull is representing an entity that wants to takeover and significantly change that business. ASIC has a lot of legislation, regulation and required processes around exactly this topic. If there is material information not disclosed, there are serious consequences that would see Turnbull possibly barred from directorships for life, convicted on a criminal charge and lose his right to ever sit in parliament, or run for political office again. They seem big stakes to me.

I'm surprised the PBO haven't understood this critical difference, that it only applies to NBN Co, and obtained an expert legal opinion, possibly even referred the matter to ASIC.

Australia now has a very large number of small, "Mom & Pop", investors with the float of the Commonwealth Bank and Telstra and the demutualisation of NRMA. It isn't just the millions of owner/operators of small businesses (who also employ half of us) that now have a working understanding of business accounts.

All these millions of small investors know how to open an Annual Report and look up the key business numbers: it's a 20 second task. If they can do that, they can understand the financial forecasts in a properly constructed Business Plan, because they are exactly those figures projected out for the life of the project. In this case, the next 30 years.

All these small investors, also voters and taxpayers, know how to read a company's Annual Report. They know what should be in them, especially statements from Directors on material events and risks and what should be in the full financial statements: Balance Sheet about Capital, Profit and Loss on Trading and Cash Flow statements (on trading, investing and financing).
Deliberately not supplying full information, especially on Risks and possible losses, in a Prospectus is a serious offence.

All this information has been openly and transparently published by NBN Co, under it's reporting obligations, overseen by ASIC.

No complete Business Plan in a Prospectus: What penalty from ASIC?

The PBO should not need expert assistance to analyse and asses the full financial forecasts of the Turnbull Copper/Node Plan, nor any outside assistance to identify all key assumptions and the fully identified Risks and potential downside and obligations to pay.

The PBO would need expert assistance to verify and comment on the key assumptions within a competently and properly constructed Business Plan, necessarily containing more than 5 years of "Summary Financials".

A panel of industry experts should be able to assess & confirm/reject in just 1 or 2 days all the critical Industry-specific assumptions in a complete Business Plan, partly because they are required to be laid out clearly and concisely. There has never been a justification for Turnbull's Copper/Node Plan to be viewed as complex: it's at heart a straight-foward spreadsheet, albeit over 30 years with moderately large numbers.

The reality is that the PBO could have a full assessment of the Turnbull Copper/Node Plan within 5 working days from the time they were given an electronic copy of the financial modelling. All the phantoms conjured by Turnbull are irrelevant and only creations of his imagination: assessing his Copper/Node Plan is only complex and intricate because of his deliberate attempts to make it that way.

I find it incredible that the PBO should have fallen for Turnbull's illusions and distractions.
They are amply qualified and funded to assess what they should be receiving from Turnbull: a complete Business Plan.

Turnbull has forced himself into a binary position on this matter. He has either:
  • prepared a complete Business Plan and is deliberately hiding it and refusing to disclose it, or
  • is incompetent and negligent and has not prepared a complete Business Plan.
Neither of these propositions, foisted on Turnbull by himself, are acceptable in a political candidate and disqualify him as a potential Minister of the Crown: he's demonstrated either he's deliberately lying by omission or incompetent and negligent.

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