Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

A couple of weeks ago, what the Big Australian is now calling its new best friend, Treasurer Peter Costello, did not bother to make a decision, which seems rather out of character. In a week when he was basking in the afterglow of a big-spending and big-noting budget which also put real long-term tax reform on the backburner, I might say, and sitting in the big chair as acting Prime Minister while the Prime Minister was away, he made no decision in an area crying out for leadership. The Treasurer did not make an announcement about the National Competition Council’s declaration with respect to access to BHP Billiton’s railway line in the Pilbara.

Many newspaper reports referred to the Treasurer’s rejection of the application. That is putting it much too strongly. All the Treasurer did was let the application sit on his desk for 60 days until it lapsed. This might have got the Treasurer out of a sticky situation, where he might have had to make a decision and then provide reasons for that decision. The Treasurer obviously did not want to do that. He did not want to put in writing why he failed to give access to a much smaller competitor and allowed a much larger multinational to keep its monopoly railway line all to itself. Such a decision makes smaller mining companies the targets for takeovers, as happened when the other big mining company, Rio Tinto, took over North after North had battled competition issues for many months.

There are several problems with the Treasurer’s lack of decision making in this instance. Firstly, I believe that it runs contrary to the spirit and the obligations of the Trade Practices Act. Recent amendments to the Trade Practices Act put in strict time limits for the making of decisions by the ACCC, the National Competition Council and the Australian Competition Tribunal. These amendments were brought about because the ACCC recognised that delays in these matters were often to the detriment of smaller competitors without deep pockets and that a swift decision was more just and equitable than a delayed decision. In every one of these cases there are significant economic interests which are time sensitive under review.

Let me put my views on the record. I do not agree with infrastructure monopolies in private hands. I do agree with persons holding infrastructure getting a full and proper commercial return on their investment. I do agree that the new entrant should fund or help fund additions to the original infrastructure if that is required. That rail line in the Pilbara was built because the public let it be built, through taxpayer provided easements, facilitation and concessions. It was built in the public interest, not the private interest; it was built with parliamentary support and it should be shared in the public interest.

I have previously questioned the role of the Treasurer in this whole approvals system. This particular failure to make a decision simply confirms my belief that, in the interests of accountability, transparency and openness, if the Treasurer is to have a place in regulating matters of competition he must be required to make decisions and to detail them in writing. If the parliament is to give the Treasurer that role, he must exercise that role. Submissions to him too should be detailed, whether verbal or written. Otherwise, who knows what blandishments or improper pressures might be assumed to be there or might even be privately applied. My own opinion is that, as a politician, the Treasurer is put in an invidious situation in these circumstances and therefore should be removed from such processes and that these processes should be left entirely in the hands of the regulator, the law and the courts.

The National Competition Council was required to give its reasons for making the declaration in November of last year. They are set out for everyone to see, as they should be in a court. It was my understanding, prior to the Treasurer choosing the ‘do nothing’ option, that the minister was required to apply certain criteria, come to a decision for or against and make the reasons for that particular decision known. How wrong I was. I assume the Treasurer was lobbied extensively about this matter. He needed to provide reasons for his decision so that all parties—and I include the Australian Competition Tribunal as one of the parties—interested in the reasons for the decision would have a clear idea of how to respond and proceed.

The manner in which the Treasurer has acted in this matter makes a mockery of the role of the regulator. It is a waste of taxpayers’ money and I think it subordinates the intent of the original legislative power that was given to him. Worse, it represents regulatory stasis and an unjustified holding up of a Western Australian economic project on apparently subjective grounds. At the moment, large transnational companies know that if they do not like a declaration from the regulator then they can go to the Treasurer and, with the various carrots and sticks available to them, try and get him to change it. Either you have faith in your regulator, your courts, the law and the frameworks you are setting in place by legislation or you need to work harder to get the legislative drafting and the structure and architecture right.

For most people in Canberra, the Pilbara is a long way away. But all those living in the big cities should remember that the Trade Practices Act does not only apply to mining in these circumstances and that pipelines and national infrastructure are not things that are singular to the mining industry. It is no good just saying this is also affected by another jurisdiction, the Western Australian jurisdiction, because that is so for every state. Infrastructure is something that is common to a number of industries. Take telecommunications—telecommunications infrastructure is an important debate that we are having in this country. As James Packer, the chairman of PBL, pointed out recently:

... Australia’s position in this area is embarrassing. We need faster broadband to stay competitive with the rest of the world.

He went on to say that the government should provide:

... policy and regulatory certainty to encourage the provision of fast broadband.

I agree with Mr Packer and I am sure many others do too.

What does that have to do with trains in the Pilbara? The answer is: a lot. Who owns the most telecommunications infrastructure in Australia and who is expanding their share of that market? Telstra, the largest of all. If Telstra spends all that money on infrastructure, why should it open up its railway lines of optic fibre to its smaller competitors to use, especially if the precedent on rail lines supports it taking that view? The competition train is not just in the Pilbara; it is in everybody’s backyard. To make an analogy, in the not too distant future there is every chance that a big telco player will be trying to stop the smaller ones from using their train lines to get their product to the consumer portals.

If you are a small telco then this particular play by the Treasurer just might give you pause. It might stop you from spending that money on R&D, new products and a whole range of services, because this government, for all that Senator Coonan says, appears to be the friend of the bigger player incumbent, and there might not be any room for the smaller non-incumbent competitors on the railway line to, hopefully, telco riches.

On the other hand, will the Treasurer treat telecommunications infrastructure differently from the way he treats rail infrastructure? Once a matter has been through the ACCC and the NCC, will the Treasurer make a decision—that is the first point—and then will he make a decision in favour of the smaller players? And, if he does, how can any consistency in trade practices regulation be created when previous decisions were made in favour of the monopolist bigger players?

The role of the Treasurer in competition policy is a bad idea if his non decision in the BHP Billiton rail line matter is proof that he favours incumbents without even giving reasons. I do not know what is in his mind. I do not know what submissions he received, nor does anyone in this chamber or anybody listening. The submissions to him and the decisions made are not available to the public. This sort of practice is bad for business because it decreases certainty; it is bad for the economy because it delays projects and puts up barriers which are unhelpful and unnecessary; it is bad for competition because it distorts the business playing field; it is bad for the regulator because they look foolish when their decisions are simply ignored rather than dealt with in an open and accountable way; and it is bad for the taxpayer, who wants value for money, certainty in investment and in the future. As far as I am concerned, this decision—or non decision—is bad for Western Australia.