Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Trade Practices Amendment (Access Declarations) Bill 2008 amends the Trade Practices Act 1974 to clarify that access declarations, and extension notices which extend the period of access declarations, are not legislative instruments for the purposes of the Legislative Instruments Act 2003.

Access declarations are made by the Australian Competition and Consumer Commission under subsection 152AL(3) of the Trade Practices Act, to identify telecommunications services that should be subject to access obligations.

A service can only be declared following a thorough inquiry process in accordance with part 25 of the Telecommunications Act 1997. The ACCC must be satisfied that the making of the declaration will promote the long-term interests of end users. Once a service has been declared, telecommunications providers wishing to make use of the service may seek access to the service from other telecommunications providers. Access obligations in part XIC of the Trade Practices Act require access providers to supply access to declared services to access seekers, and provisions in that part detail the terms and conditions on which access must be given.

In considering the long-term interests of end users, the ACCC must take into account whether declaration of the service would promote competition, any-to-any connectivity, and the efficient use of, and investment in, infrastructure. Any-to-any connectivity is the ability of each end user to communicate with all other end users.

The primary objective of the bill is to provide certainty to the telecommunications sector by clarifying that access declarations that have been made by the ACCC are not, and never have been, legislative instruments for the purposes of the Legislative Instruments Act.

Eleven access declarations are currently in force, covering key services that are fundamental to telecommunications competition and the ability of end users to communicate with all other end users. They include services such as the unconditioned local loop, local call resale, call origination and termination, wholesale line rental and trunk transmission.

On the understanding that access declarations are not legislative instruments for the purposes of the Legislative Instruments Act, the ACCC has not registered any access declarations on the Federal Register of Legislative Instruments, nor tabled them in both houses of parliament. These are requirements that the Legislative Instruments Act imposes for legislative instruments. Unregistered legislative instruments are unenforceable.

A recent Federal Court decision, Roche Products Pty Limited v National Drugs and Poisons Schedule Committee, may have implications for access declarations. As a consequence of that decision, it is possible that access declarations may be open to legal challenge on the basis that they are legislative instruments and are invalid as they have not been registered or tabled.

In the absence of these amendments, it is possible that a court could decide that all access declarations made by the ACCC up to this point are invalid due to their not having been registered and tabled in accordance with the Legislative Instruments Act. If this were to happen, this could cause serious disruption to the operation of the part XIC access regime.

In the interests of providing the telecommunications industry with certainty in relation to access to key services, this bill will remove doubt about the validity of access declarations.

The ACCC may also issue extensions of time for access declarations. The bill will also clarify for the avoidance of doubt that these extensions of time are not, and never have been, legislative instruments.

Furthermore, the bill will have the effect that revocations and variations of access declarations are not and have never been legislative instruments.

The bill contains a clause that will protect the validity of the bill in the event that it was found to result in an acquisition of property other than on just terms and in that event, requires the Commonwealth to pay a reasonable amount of compensation. If the Commonwealth and the person do not agree on the amount of compensation, the person may institute proceedings in the Federal Court and the Federal Court will determine the amount of compensation. This provision mirrors similar provisions found elsewhere in the Trade Practices Act and in the Telecommunications Act.

While part XIC of the Trade Practices Act deals with the telecommunications-specific access regime, part IIIA of that act deals with access to services more broadly. This bill does not deal with part IIIA of the act. No inferences should be drawn about the status of access declarations made under that part of the Trade Practices Act as a result of this bill.

I commend the bill to the House.

Debate (on motion by Mr Anthony Smith) adjourned.