David Bushby (Tasmania, Liberal Party) Share this | Link to this | Hansard source

On behalf of Senator Coonan, I present the 12th  report of 2009 of the Senate Standing Committee for the Scrutiny of Bills. I also lay on the table Scrutiny of Bills Alert Digest No.13 of 2009, dated 28 October 2009.

Ordered that the report be printed.

I move:

That the Senate take note of the report

I seek leave to incorporate Senator Coonan’s tabling statement in Hansard.

Leave granted.

The statement read as follows—

In tabling the Committee’s Alert Digest No. 13 of 2009 and Twelfth Report of 2009, I draw the Senate’s attention to several provisions in the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2009.

Part 2 of Schedule 1 of the bill contains provisions amending Part XIC of the Trade Practices Act 1974. Part XIC of the Trade Practices Act provides for the telecommunications access regime, with Division 3 of Part XIC containing standard access obligations for carriers and carriage service providers. Existing section 152AS and subsection 152ASA(12) are repealed by Schedule 1, meaning that ordinary class exemptions from standard access obligations made by legislative instrument will no longer be available. Proposed new subsection 152ASA(12), provides specifically that a determination under subsection 152ASA(1) (to exempt from standard access obligations) is not a legislative instrument.

The explanatory memorandum states that disallowance by the Parliament ‘would not be appropriate for instruments made under Part XIC’ and that, where the Australian Consumer and Competition Commission uses a number of inter-related instruments to deal with a matter, ‘disallowance of one instrument could result in inconsistent and undesirable regulatory outcomes’. However, the explanatory memorandum does note that the bill provides for consultation and termination of the instruments.

The Committee is of the view that, if the Parliament were to continue to have the capacity to consider the disallowance of determinations made under subsection 152ASA(1), the Australian Consumer and Competition Commission could draw to its attention, or provide advice upon, any ‘inconsistent’ or ‘undesirable’ regulatory outcomes. The Committee has sought the Minister’s advice on whether this type of approach might be considered, as opposed to the absolute removal of legislative scrutiny of determinations made under the proposed new system of exemptions.

Proposed new section 152BCG, to be inserted by item 116 of Schedule 1, provides for interim access determinations. The circumstances in which the ACCC is required to make an interim access determination are set out in proposed new subsection 152BCG(1). Proposed new subsection 152BCG(4) provides that the ACCC ‘is not required to observe any requirements of procedural fairness in relation to the making of an interim access determination’.

The Committee prefers that legislation provides for the requirements of procedural fairness to be followed, and expects clear and convincing justification for a variation from this standard. The explanatory memorandum to the bill simply states that procedural fairness does not apply in this case because of the ‘urgent and temporary nature’ of interim access determinations.

However, the Committee has noted that interim access determinations can be issued when it will be at least six months until a final determination is issued, and they are issued in circumstances where a service is being declared for the first time. The Committee is concerned that issuing interim access determinations without regard to procedural fairness may mean that consultations to determine whether a substantive access determination should be issued may commence with a ‘lack of trust’ on the part of those carriers, carriage service providers and others who are involved in the process. Accordingly, the Committee is seeking the Minister’s comments on this issue and whether any alternatives to the approach taken in the bill were, or might be, considered.

Item 116 of Schedule 1 also inserts a new Division 4A into the Trade Practices Act for binding rules of conduct. Proposed new section 152BD relates to binding rules of conduct for access to a declared service. When making any rules, the ACCC is not required to observe any requirements of procedural fairness and does not have a duty to consider whether to consider making any rules (whether at the request of a person or in any other circumstances). Further, the rules ‘may provide for the [ACCC] to perform functions, and exercise powers, under the rules’.

The rules are not a legislative instrument so they would not be subject to tabling and disallowance. The ACCC is also not obliged to observe any requirements of procedural fairness in relation to the making of binding rules of conduct. The explanatory memorandum states that the rules are necessary to give the ACCC ‘flexibility in how it will deal with technical, complex and changing matters’. The Committee notes that the provisions will result in the ACCC having an extremely broad discretion and has sought the Minister’s advice on how this discretion will be monitored.

I commend the Committee’s Alert Digest No. 13 of 2009 and Twelfth Report of 2009 to the Senate.

Question agreed to.