Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

by leave—I move opposition amendments (58), (59), (61) and (62) on sheet 7004 together:

(58)  Schedule 1, item 152, page 108 (lines 10 and 11), omit the item, substitute:

152  Subsection 152AV(1)

Omit “152AT or”.

152A  Subsection 152AW(1)

Omit “152AT or”.

152B  Paragraph 152AW(1)(b)

Omit “paragraph 152AT(3)(a) or”.

152C  Paragraph 152AW(1)(c)

Repeal the paragraph.

152D  Paragraph 152AW(1)(e)

Omit “152AT or”.

152E  Paragraph 152AW(1)(f)

Omit “152AT or”.

152F  Paragraph 152AW(1)(g)

Omit “152AT or”.

152G  Paragraph 152AW(1)(h)

Omit “152AT or”.

152H  Paragraph 152AW(5)(a)

Omit “152AT or”.

152J  Paragraph 152AW(5)(c)

Omit “paragraph 152AT(3)(a) or”.

152K  Paragraph 152AW(5)(d)

Omit “paragraph 152AT(3)(a) or”.

152L  Paragraph 152AW(5)(e)

Repeal the paragraph.

152M  Paragraph 152AW(5)(g)

Omit “152AT or”.

152N  Paragraph 152AW(5)(h)

Omit “152AT or”.

152P  Paragraph 152AW(5)(i)

Omit “152AT or”.

152Q  Paragraph 152AW(5)(j)

Omit “152AT or”.

152R  Paragraph 152AW(5)(k)

Omit “152AT or”.

152S  Section 152AX

Omit “152AT or”.

(59)  Schedule 1, item 160, page 131 (after line 2), at the end of Division 4, add:

        (1)    A person whose interests are affected by an access determination may apply in writing to the Tribunal for review of the determination.

        (2)    The application must be made within 21 days after the Commission makes the determination.

        (3)    The Tribunal must review the determination in accordance with section 152BCY.

Orders

        (1)    On a review of an access determination, the Tribunal may order that the determination be affirmed, varied or revoked.

        (2)    If the Tribunal makes an order that the determination be varied or revoked, the Commission is taken to have varied or revoked the determination accordingly (other than for section 152BCX or this section).

        (3)    For the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

Conduct of review

        (4)    For the purposes of the review, the presiding member of the Tribunal may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

        (5)    For the purposes of the review, the Tribunal may have regard only to:

             (a)    any information given, documents produced or evidence given to the Commission in connection with the making of the access determination; and

             (b)    any other information that was referred to in the Commission’s report mentioned in subsection 152BCH(1) or in any reasons for making the access determination that the Commission published.

Time period for review

        (6)    The Tribunal must use its best endeavours to make an order under subsection (1) on or before the action date for the review.

        (7)    If the Tribunal is unable to make an order by the current action date, the Tribunal must, by notice in writing, set a later date as the action date.

        (8)    The Tribunal must:

             (a)    give a copy of the notice to each party to the review; and

             (b)    publish the notice on its website and in a newspaper circulating generally throughout Australia.

        (9)    In this section:

action date, in relation to a review, means:

             (a)    the day 90 days after the Tribunal receives the application for review; or

             (b)    a later date set under this section.

(61)  Schedule 1, item 160, page 140 (after line 4), at the end of Division 4A, add:

        (1)    A person whose interests are affected by binding rules of conduct may apply in writing to the Tribunal for review of the rules.

        (2)    The application must be made within 21 days after the Commission makes the rules.

        (3)    The Tribunal must review the decision in accordance with section 152BDP.

Orders

        (1)    On a review of binding rules of conduct, the Tribunal may order that the rules be affirmed, varied or revoked.

        (2)    If the Tribunal makes an order that the rules be varied or revoked, the Commission is taken to have varied or revoked the rules accordingly (other than for section 152BDO or this section).

        (3)    For the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

Conduct of review

        (4)    For the purposes of the review, the presiding member of the Tribunal may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

        (5)    For the purposes of the review, the Tribunal may have regard only to any information given, documents produced or evidence given to the Commission in connection with the making of the rules.

Time period for review

        (6)    The Tribunal must use its best endeavours to make an order under subsection (1) on or before the action date for the review.

        (7)    If the Tribunal is unable to make an order by the current action date, the Tribunal must, by notice in writing, set a later date as the action date.

        (8)    The Tribunal must:

             (a)    give a copy of the notice to each party to the review; and

             (b)    publish the notice on its website and in a newspaper circulating generally throughout Australia.

        (9)    In this section:

action date, in relation to a review is:

             (a)    the day 90 days after the Tribunal receives the application for review; or

             (b)    a later date set under this section.

(62)  Schedule 1, item 177, page 152 (lines 25 and 26), omit the item, substitute:

177  Subsection 152CE(1)

Omit “152BU(2), 152BY(3),”.

177A  Subsection 152CF(1)

Omit “152BU(2), 152BY(3),”.

177B  Paragraph 152CF(1)(b)

Omit “152BU(2) or”.

177C  Paragraph 152CF(1)(c)

Omit “152BU(2) or”.

177D  Paragraph 152CF(1)(d)

Omit “152BY(3) or”.

177E  Paragraph 152CF(1)(e)

Omit “152BY(3) or”.

177F  Paragraph 152CF(5)(a)

Omit “152BU(2), 152BY(3),”.

177G  Section 152CG

Omit “152BU(2), 152BY(3),”.

These amendments relate to merits review provisions within the legislation. The opposition think it is important that these decisions of the ACCC are subject to some level of merits review process, and we think that our amendments will enhance the legislation by implementing such a process.

There has been a great deal of criticism of Telstra over the years and the way they have in many ways gamed the system, using lawyers to challenge access decisions made by the ACCC. That mechanism was previously known as ‘negotiate and arbitrate’ in the terms that were used and it has now been replaced with a more prescriptive approach, locally known as ‘set and forget’. We support those changes.

However, while supporting those changes to a more prescriptive approach that eliminates that potential for gaming of the system, we think that it is important to not completely lose sight of issues of justice and fairness in the way that these matters are dealt with. It is one thing to say that a corporation is using lawyers to game decisions. It is fine to use that description. But to remedy that by totally taking away the rights—in other words, taking away the natural fairness provisions and natural justice provisions entirely—you will end up with a situation which is quite extraordinary, where the ACCC become totally beyond review. We do not think it is appropriate for the ACCC to be able to operate totally beyond review. We have of course—and I have in this debate—placed great faith in and set great store by the capacity of the ACCC in their decision-making processes. Indeed, we wish that the minister would allow the ACCC to do the job that they do in so many other instances without the need for him to limit the scope of their considerations in other aspects of this legislation.

However, in this regard we think that issues of procedural fairness should ensure that there is some review process and review mechanism. This is fundamentally an issue about getting the balance right in this legislation. We think the government has gone too far in one direction in totally eliminating these review processes and we think that allowing a merits review of access determinations by the tribunal is a fair and reasonable step to take. It is important that there be a merits review of these access determinations because they will be conducted in a prescriptive way as opposed to the much criticised approach taken in the legislation prior to this time.

I urge those senators on the crossbenches to understand that this is a relatively simple step. It is a commonplace step. I know that in other areas they have strong regard for the importance of merits review processes and I would hope that, if the government is unwilling to accept these amendments, those on the crossbench will accept that these processes of merits review should occur in determinations by the ACCC in this regard, just as they argue that merits review processes should exist in a range of other ways.