Robert Oakeshott (Lyne, Independent) Share this | Hansard source

The Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009 is an example of the ongoing conflicts that all public policymakers face when reviewing and considering legislation. With just about every piece of legislation that comes through this chamber, there are competing interests. There are certainly many competing interests in relation to this legislation at various levels—shareholder interests, private interests, public interests and the processes in and around how public policy is presented to this chamber. I am pleased that the member for Hindmarsh mentioned the $2.20 administration fee that Telstra has just introduced in relation to their billing system. That has caused a lot of concern on the Mid North Coast of New South Wales. Only today I received a response from Minister Conroy to a concern raised by a constituent of mine. In that response we can see a point of conflict that relates to the bill we are discussing today. I quote from the letter from Minister Conroy:

Telstra is a private company and the Australian government does not seek to influence decisions about the day-to-day management of its business. Consistent with Corporations Law requirements, these decisions are left to Telstra’s board and management.

By relating that paragraph alone to this bill, I think I could build a pretty strong argument to express my concern about the ‘dead hand of socialism’ infiltrating the affairs of a private company. But the next sentence balances the concerns in this legislation. I again quote from the letter:

The government’s role is to establish the legislative and regulatory framework within which telecommunications service providers operate.

In response to those arguments, we have to consider framework questions for the future of the telecommunications industry and, ultimately, as public policymakers, ask the question that I hope all members in this place ask when they are considering legislation: what is the national interest in this legislation?

Previous speakers spoke about shareholder interests and they circulated lists of those who may support this legislation. They hope that the 1.3 million Telstra shareholders will go to the ballot box and vote against those who support this legislation. I do not buy that argument at all, even though I have concerns about aspects of the way this legislation has been introduced and what the government is doing. I think shareholder interests are for the many good company directors in Australia to look after, as is their fiduciary duty. I do not think public policymakers should be concerned, for good or for bad, with what is in the interest of shareholders in Australia. Rather, as I said, our only concern when passing legislation through this chamber should be whether it is in the national interest.

In that context, I can certainly see why the government is doing what it is doing with this legislation. Even though I do not like what the government is doing with this legislation, I can certainly understand why the government is doing what it is doing. But I do not like how the government is doing what it is doing. I think there are great concerns about the targeting of a private company in Australia today and the issues that are being raised in such an approach. The old Westminster system has tacking laws whereby you cannot attach one piece of legislation to another. In this legislation I think we are seeing a variation on that, with the targeting of one company in a broad sweep of telecommunications framework changes.

I also mention the heavy hand or the dead hand of socialism that we are seeing in pushing towards a private telecommunications approach in Australia into the future and the lurch back to nationalisation and public involvement in telecommunications. That sets some concerns about policy direction and investment in an important industry for the country’s future. I also raise concerns about ministerial authority that is wrapped into this legislation. I have raised this in debate on previous legislation. We are increasingly seeing legislation presented to us in this chamber that leaves ministerial discretion as the answer to issues of concern. I do not think that is good enough. We as legislators should expect more from the executive. We should demand that ministerial discretion, as an approach to future policy, is not enough. I see it in this legislation in various places. When it comes to the crunch of how policy is going to be implemented, the answer provided in the legislation is nothing more than ministerial discretion. That is a concern for the national interest that is considered in this legislation.

From a policy making position, I have concerns—and I have raised these before as well—about the open-ended nature of some of the questions that are presented. They are largely shaped around similar arguments that I just raised about ministerial discretion. I pick out one example in this bill. We are supposed to take on good faith how government will use its powers moving forward. It is a question of voluntary or involuntary structural reform. When you read the detail of the amendment, there really is no difference. Regarding the voluntary option, as presented to Telstra, 577A, subsection (2), says:

In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:

(a)

the matters (if any) set out in an instrument in force under subsection (3) …

We then go to subsection (3):

The Minister may, by writing, set out matters for the purposes of paragraph (2)(a).

We are supposed to go back and forth between those two points: whether a minister is going to set an instrument and, if so, what that instrument is going to be.

It is important that, if we are to consider this legislation in good faith as members of the House of Representatives, we know what the minister in the executive is going to set in this instrument, if anything, and what matters he will raise in instruments. For example, will customer service guarantees and universal service obligations be in there? They largely answer the national interest question: is this going to be good for people in communities such as mine who are already struggling to have access to various telecommunications services? But in this legislation it is left as an open question. We are supposed to take on good faith the important question: what is the standard that the minister is going to set, via the ACCC, for a voluntary handover by Telstra? It is an important question that is unanswered in this legislation. I would certainly hope that, in a ministerial response, we get to see which matters, if any, are going to be included in the ministerial instrument that will set the standard for voluntary engagement.

I raise the question of the former ACCC chairman, Allan Fels, about abuse of market power. This is a bullying approach to legislation. It is a fundamental change. Whilst I have previously said I do not think the arguments of 1.3 million shareholders are to be considered in a policy framework discussion, I do think their concerns are certainly worthy of consideration when shaping policy and substantially changing policy, such as we are seeing here. The Fels question that has been raised about abuse of market power is certainly one that I hope government considers on spectrum questions. That is a question for regional and rural areas which is also outstanding. Whilst I concur with the previous speaker that we will hopefully see strengthening of universal service obligations and customer service guarantees through this legislation, I think there are valid arguments and concerns about the upgrade path into the future for regional and rural areas. If Telstra is not the way forward for us in regional areas, are we supposed to put all our eggs in the one basket of NBN Co? Again, we are then left to hope in good faith that the government delivers in the eight-year time frame.

Next year we have the question of retail price control being considered by government. Nothing has been raised in this legislation about that. If there is going to be a shift for regional areas and the future of regional areas, there is the question of how government will handle retail price control in the next decade. In a ministerial reply, we would like to hear what is going to be decided in the six-month window that will set us up for the future.

In conclusion, as I said previously, I do not like the way it is being done or how it is being done, but I do understand why it is being done. With regard to the coalition’s amendment, certainly from my perspective, apart from the seven or eight extremely emotive words in the amendment, I think it has merit, but I do not think the next step of completely blocking this legislation and this important change for the national interest is necessary.

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