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

The opposition opposes schedule 1, items 160 and 212 in the following terms:

(60)  Schedule 1, item 160, page 131 (lines 30 to 32), subsection 152BD(6) TO BE OPPOSED.

(63)  Schedule 1, item 212, page 167 (lines 7 to 14), item TO BE OPPOSED.

These are not dissimilar to the previous ones but in many ways are of less consequence in their application. They were related in some ways, but we have put them separately, noting that there are potentially different views in this regard. I draw the chamber’s attention to these amendments. They seek to strike out two provisions in the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010. The first provision is found in section 152BD(6), which relates to the binding rules of conduct that the commission may make. It states:

The Commission is not required to observe any requirements of procedural fairness in relation to the making of binding rules of conduct.

The second relates to part 3 of the bill on anticompetitive conduct. Item 212 substitutes within the Competition and Consumer Act a new subsection 151AKA(9). It states:

The Commission is not required to observe any requirements of procedural fairness in relation to the issue of a Part A competition notice.

These are quite extraordinary provisions insofar as they state very clearly that there is a requirement on the commission not to observe processes of procedural fairness. I note that this is not a matter that will allow the type of gaming that we were talking about previously. This is not a matter that will see the ACCC subject to multiple appeal processes. This is simply a matter ensuring that the commission undertakes steps of procedural fairness. What might those steps be? They might be ensuring that there are appropriate consultation and comment periods on drafts, ensuring that there is a procedural fairness mechanism there to allow affected parties to make comment on the determinations, on the binding rules of conduct, that the commission may be making.

This is a relatively straightforward amendment. I look forward to hearing the minister’s arguments, which I am sure there will be, as to why the government thinks that stripping the ACCC of the requirement to act in a fair way is necessary in this legislation and why the government thinks it needs to take out all those types of provisions. As we discussed with the previous amendment related to merits review, there is a significant change in the way determinations are made from the historical basis to what will occur under this legislation. The chamber has just decided not to have a merits review process, so the chamber has already decided that the ACCC’s determinations will be final. What we think is at least reasonable in this regard is that the ACCC be required to act in a procedurally fair manner. That is the simple aspect of these amendments, and I urge the chamber to support them.