Nick Xenophon (SA, Independent) Share this | Hansard source

I thank members for their indications of support. I just want to make it clear that, following this process of consultation, the minister must consider any submissions received and request the ACCC to give advice. These amendments also allow for the minister to ask the ACCC for additional guidance as needed and they are designed to ensure full transparency in the process. I think the process will be a useful one and, like Senator Birmingham, I look forward to this adding a layer of scrutiny to the process.

Question agreed to.

I move amendment (19) on sheet 7005 standing in my name:

(19)  Schedule 1, item 31, page 70 (after line 17), at the end of Part 9, add:

        (1)    If:

             (a)    a final functional separation undertaking is in force; and

             (b)    the ACCC considers that Telstra has breached the undertaking;

the ACCC must apply to the Federal Court for an order under subsection (2).

        (2)    If the Federal Court is satisfied that Telstra has breached the undertaking, the court may make any or all of the following orders:

             (a)    an order directing Telstra to comply with the undertaking;

             (b)    an order directing the disposal of network units, shares or other assets;

             (c)    an order restraining the exercise of any rights attached to shares;

             (d)    an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by Telstra;

             (e)    an order that any exercise of rights attached to shares be disregarded;

              (f)    an order directing Telstra to pay to the Commonwealth an amount up to the amount of any financial benefit that Telstra has obtained directly or indirectly and that is reasonably attributable to the breach;

             (g)    any order that the Court considers appropriate directing Telstra to compensate any other person who has suffered loss or damage as a result of the breach;

             (h)    any other order that the Court considers appropriate.

        (3)    In addition to the Federal Court’s powers under subsection (2), the court:

             (a)    has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and

             (b)    has power to make an order containing such ancillary or consequential provisions as the court thinks just.

        (4)    The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

        (5)    The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

This relates to the enforcement of functional separation undertakings. This amendment inserts an enforcement of undertakings provision into the functional separation undertakings. If the ACCC determines not to take any breaches of the undertaking to court, it must publish its reasons. That is the basis of it. I think it is important that, if there will not be an enforcement for an apparent breach, we need to know why.