Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Hansard source

Amendment (60) would require the ACCC to comply with the requirements of procedural fairness when making binding rules of conduct. Requiring the ACCC to comply with procedural fairness as part of the process of making binding rules of conduct would severely compromise its effectiveness. Binding rules of conduct are intended to enable the ACCC to quickly address problems which are affecting the supply of a declared service. The ACCC will only be able to make binding rules of conduct if it considers that there is an urgent need to do so. If the issue is not urgent, the ACCC will have to deal with it by varying the relevant access determination.

Since binding rules of conduct can only be made in cases of urgency, it does not make sense to require the ACCC to comply with procedural fairness, as that will have the effect of delaying the making of the rules. Binding rules of conduct will have a maximum duration of 12 months. Within 30 days after making binding rules of conduct, the ACCC will have to commence a public inquiry to vary the access determination or make a new access determination. Parties will be accorded procedural fairness in the public inquiry.

This set of amendments is probably the most disappointing. Those opposite have taken a largely constructive view in the debate around the bill, but they know that the current system has failed and that the whole industry is behind these changes because what we have seen are ridiculous situations where it has taken years for outcomes to be achieved, which has completely defeated the purpose of the current regime. This allows swift action by the ACCC. Suggesting the reintroduction of these amendments really is opposition for opposition’s sake. I think this is more politics than it is actual, fair dinkum policy rationale. It probably is the most disappointing part. The whole industry knows that the current system is broken, almost irretrievably, and this is the best mechanism to repair a broken system.

As for restoring current procedural fairness in relation to decisions to issue a part A competition notice under part 11B, the bill streamlines the process for issuing a part A competition notice. It does this by removing the requirement for the ACCC to issue a consultation notice before issuing a part A competition notice and by removing the requirement for the ACCC to accord procedural fairness when issuing a part A competition notice. These reforms are necessary to enable the ACCC to act as quickly as possible against alleged anticompetitive conduct, to limit the damage to competition. Powerful and well-resourced industry players who are engaging in anticompetitive conduct should not be able to string out the enforcement process so they can continue engaging in the conduct for long enough to consolidate their anticompetitive gains in the market.

That is what this is really about. The system currently has been gamed in a way that destroys its effectiveness. This block of amendments is designed to reintroduce a system that has manifestly failed, and that is acknowledged. I am sure even those opposite would acknowledge the current system has failed. You are hiding behind this pretence of an argument that ‘we’re suddenly behaving in a way that’s anticompetitive’ when you know that is not right. This is politics purely for politics’ sake.