Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Hansard source

I move Australian Greens amendment to the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 on sheet 8190:

(1) Schedule 2, page 8 (line 1) to page 13 (line 8), omit the Schedule, substitute:

Schedule 2—Telecommunications industry

Competition and Consumer Act 2010

1 Paragraph 151AJ(3)(a)

  Omit "45B, 46,".

2 Subsections 151AJ(4) and (5)

  Omit "45B, 46,".

3 Paragraph 151AJ(5)(a)

  Repeal the paragraph, substitute:

  (a) the assumption that subparagraphs 45(3)(a)(ii) and (b)(ii) had not been enacted;

4 Paragraphs 151AJ(5)(c) and (d)

  Repeal the paragraphs.

5 Subsection 151AJ(7)

  Omit "45B, 46,".

6 Paragraph 151AJ(7)(d)

  Repeal the paragraph.

7 Subsections 151BC(4) and (5)

  Repeal the subsections.

There is one amendment to this bill. It relates to schedule 2, on the telecommunications industry.

Just a little bit of background: the Competition and Consumer Act currently includes an effects test for the telecommunications industry, as well as giving the ACCC greater powers of intervention and the ability to issue competition notices against misuse of market power in the telecommunications industry. The bill before us tonight proposes to remove both these existing provisions on the grounds of duplication. Our amendment retains these powers.

Let me explain a little more about the existing provisions that are currently in place and why we wish to retain these. Division 2 of part XIB sets out the telecommunications-specific competition rule which prohibits a carrier or carriage service provider—called a CSP—from engaging in anticompetitive conduct. Essentially, this is an effects test applying only to the telecommunications market. Let's make this point very clear: we have, for all intents and purposes, an effects test in the telecommunications market right now. And let me make this point clear: stakeholders in the telecommunications industry have been knocking on our door, as I am sure they have on other senators' and MPs' doors, asking us to maintain the effects test as it stands—and I will call it an effects test—because it works for them and they have confidence in it.

My third point, to make it very clear, is that, if you support the Greens amendment tonight to retain this because you recognise that the telecommunications industry likes what's in there now and thinks it works, on principle you support an effects test—a broader effects test for other industries. Let's make that very clear.

What we have at the moment is an effects test applying only to the telecommunications market. Division 3 of part XIB grants the ACCC power to issue competition notices in respect of a contravention to the competition rule. That's called division 2. There are two types of competition notices, part A and B notices, that differ with regard to the particulars of the contravening conduct that the ACCC must include. The issuing of a competition notice requires a carrier or CSP to cease engaging in the identified anticompetitive conduct subject to high potential fines. Division 3 also allows for a person to apply to the ACCC for an order exempting specified conduct for the scope of the anticompetitive conduct provisions in division 2. Overall, by providing for the issuing of competition notices, division 3 enables the ACCC to respond quickly to anticompetitive conduct in the sector.

It is interesting to note also tonight, that Telstra is the only body that is calling for the removal of the ACCC's current intervention powers. We believe they should be retained because not only is the industry firmly of the view that they have worked and they are very confident in them but they give the ACCC the capacity to intervene early in the piece should they see potential misuse of market power. Further, given the rapidly-developing and asymmetrical nature of the telecommunications industry, the retention of the existing provisions is prudent.

I will finish by saying that I hope the Senate can support this amendment. I understand the government will be supporting our amendment tonight, and I thank them for this. I understand that Senator Xenophon will be supporting the amendment. I'm not sure about the other crossbenchers and I'm not sure of Labor's position. I'm guessing they won't be supporting this because this is an effects test—an effects test that seems to work and has the industry engaged and out there lobbying for it to be retained. I thank the government for their flexibility on this. We were working very closely with the telecommunications industry. This was a sticking point for them and for some senators in the Greens, and we thank them for keeping this in place. It's a very powerful symbol that an industry, like the telecommunications industry, believes that an effects test is effective, hence the logic for us transferring this more generally to section 46 for other industries' potential misuse of market power. It's what the ACCC have been asking for.