Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010 and the amendment R(18) on sheet 7019 moved by Senator Ludlam. The question is that the amendment be agreed to.

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

I think other parties in the chamber last night stated their position on this amendment. The opposition opposes this amendment. We think that, in attempting to further define the definition of equivalence, as the Greens are seeking to do, they will end up potentially limiting the definition of equivalence. We think the definition as stated in the bill is an appropriate definition and we will not be supporting this amendment.

Question put.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move amendment (16) on sheet 7005 revised:

(16)  Schedule 1, item 31, page 59 (after line 7), at the end of clause 74, add:                            

           (ca)    the principle that Telstra’s wholesale/network business unit should have discrete branding and identity to that of its retail business units;

           (cb)    the principle that Telstra’s management and personnel should be strictly separated between:

                   (i)    its wholesale/network business unit; and

                  (ii)    its retail business units;

                      and that remuneration should be tied to business unit performance, not group performance;

           (cc)    the principle that Telstra should maintain strict information barriers between:

                   (i)    its wholesale/network business unit; and

                  (ii)    its retail business units;

                      and that Telstra’s retail business units and its wholesale customers should interact with Telstra’s wholesale/network business units using the same information systems;

           (ce)    the principle that Telstra should maintain separate financial accounting between:

                   (i)    its wholesale/network business unit; and

                  (ii)    its retail business units;

        (2)    In determining the principle of equivalence covered by paragraph (1)(a), regard must be had to whether:

             (a)    the terms and conditions relating to price or a method of ascertaining price; and

             (b)    other terms and conditions;

on which Telstra supplies regulated services to its wholesale customers are no less favourable than the terms and conditions on which Telstra supplies those services to its retail business units.

        (3)    Subclause (2) does not limit the matters to which regard may be had.

        (4)    Disregard subclause (2) for the purposes of subsections 577A(2) and (3).

This amendment relates to the functional separation principles. It requires that there be separate branding and identity between Telstra’s wholesale network business and its retail business unit. This amendment further specifies that there be strict separation between their information sharing, financial accounting and personnel. This is to ensure that there is a distinct and identifiable difference between the two entities. This amendment also provides that, in determining the principles of equivalence, which we discussed earlier today and last night, regard must be had to the terms and conditions and methods of ascertaining prices to ensure that what Telstra wholesale supplies to its wholesale customers is no less favourable than the terms and conditions applied to the Telstra retail unit. I emphasise that this amendment relates to the issue of functional separation. I said previously that functional separation would be a poor second cousin to structural separation, but it enhances those principles in terms of equivalence, pricing, accountability and ensuring that the separation is as strict as possible if it is a functional separation. I know that the government is likely to support some but not all of this amendment. I will wait to hear the government’s position in relation to this amendment—and, of course, the positions of my colleagues in the opposition and on the crossbench.

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

The government is broadly supportive of this amendment but we do not support paragraphs (ca) to (ce). If functional separation is required by Telstra then these are the types of matters that will be addressed in the minister’s functional separation requirements determined under clause 75 in the bill. Such an instrument will be able to be drafted in a way which avoids technical problems which we believe Senator Xenophon’s amendment brings about. I seek leave to move government amendments (1) and (2) to Senator Xenophon’s amendment (16) on sheet 7005 revised.

Leave granted.

I move:

(1)

Omit paragraphs (ca) to (ce).

(2)

Omit clause (4), substitute the following:“(4) To avoid doubt, this clause does not affect the meaning of anything in Part 33”.

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

The opposition will not be supporting Senator Xenophon’s amendments. We do not believe they add to the bill’s workability or to how it will function. There is also the fact that the government is seeking to excise a large swathe from the amendment and simply again leave behind parts, similar to those we have discussed previously, that may add to the process undertaken but do not add to the strength of conditions upon the minister or the government. Therefore we do not see that it is worthwhile supporting this amendment; it will not give a meaningful enhancement to the bill. And, as mentioned, the government itself is choosing to excise a large part of what Senator Xenophon is proposing.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the government amendments (1) and (2) to Senator Xenophon’s amendment (16) on revised sheet 7005 be agreed to.

Question agreed to.

The Temporary Chairman:

The question is that Senator Xenophon’s amendment (16) on revised sheet 7005, as amended, be agreed to.

Question agreed to.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move amendment (18) on revised sheet 7005 standing in my name:

(18)  Schedule 1, item 31, page 59 (after line 21), after subclause 75(4), insert:

     (4A)    Before making or varying a functional separation requirements determination, the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the determination or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the determination or variation within 14 days after the notice is published; and

             (b)    give the ACCC a copy of the notice; and

             (c)    consider any submissions received within the 14-day period mentioned in paragraph (a); and

             (d)    ask the ACCC to give advice to the Minister, within 28 days after the publication of the notice, about the determination or variation; and

             (e)    have regard to any advice given by the ACCC.

      (4B)    Subclause (4A) does not, by implication, prevent the Minister from asking the ACCC to give the Minister additional advice about a matter arising under this clause.

I have withdrawn amendment (17), but I am persisting with amendment (18). This amendment requires that, before the minister makes the functional separation requirements determination, the minister must publish the draft determination on the department’s website and call for submissions to be made within 14 days. Again, it is similar to other amendments—it is about greater transparency; it is about the process of allowing for input to the determination.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will be supporting Senator Xenophon’s amendment (18). It is quite consistent with a number of the amendments that we have moved and carried, providing these windows for transparency part of the way through the process that I think will provide other participants in the market, and indeed the general public, with an important idea of how the process is rolling out. So we will be supporting Senator Xenophon’s amendment (18).

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

The government is supporting Senator Xenophon’s amendment (18). This amendment requires the minister, before making or varying a functional separation requirements determination, to publish the determination or variation and to undertake a public consultation process about the determination or variation for a period of 14 days. The minister is also required to ask the ACCC to give advice within 28 days after the publication of the determination or variation. This amendment addresses concerns raised by the Competitive Carriers’ Coalition and Macquarie Telecom in their submissions to the inquiry into the bill by the Senate Standing Committee on Environment and Communications.

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

The opposition will not oppose Senator Xenophon’s amendment. We accept the arguments that Senator Xenophon has put and look forward to seeing the information that his amendment will ensure is tabled and to some level of consultation or discussion arising from it.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank members for their indications of support. I just want to make it clear that, following this process of consultation, the minister must consider any submissions received and request the ACCC to give advice. These amendments also allow for the minister to ask the ACCC for additional guidance as needed and they are designed to ensure full transparency in the process. I think the process will be a useful one and, like Senator Birmingham, I look forward to this adding a layer of scrutiny to the process.

Question agreed to.

I move amendment (19) on sheet 7005 standing in my name:

(19)  Schedule 1, item 31, page 70 (after line 17), at the end of Part 9, add:

        (1)    If:

             (a)    a final functional separation undertaking is in force; and

             (b)    the ACCC considers that Telstra has breached the undertaking;

the ACCC must apply to the Federal Court for an order under subsection (2).

        (2)    If the Federal Court is satisfied that Telstra has breached the undertaking, the court may make any or all of the following orders:

             (a)    an order directing Telstra to comply with the undertaking;

             (b)    an order directing the disposal of network units, shares or other assets;

             (c)    an order restraining the exercise of any rights attached to shares;

             (d)    an order prohibiting or deferring the payment of any sums due to a person in respect of shares held by Telstra;

             (e)    an order that any exercise of rights attached to shares be disregarded;

              (f)    an order directing Telstra to pay to the Commonwealth an amount up to the amount of any financial benefit that Telstra has obtained directly or indirectly and that is reasonably attributable to the breach;

             (g)    any order that the Court considers appropriate directing Telstra to compensate any other person who has suffered loss or damage as a result of the breach;

             (h)    any other order that the Court considers appropriate.

        (3)    In addition to the Federal Court’s powers under subsection (2), the court:

             (a)    has power, for the purpose of securing compliance with any other order made under this section, to make an order directing any person to do or refrain from doing a specified act; and

             (b)    has power to make an order containing such ancillary or consequential provisions as the court thinks just.

        (4)    The Federal Court may, before making an order under this section, direct that notice of the application be given to such persons as it thinks fit or be published in such manner as it thinks fit, or both.

        (5)    The Federal Court may, by order, rescind, vary or discharge an order made by it under this section or suspend the operation of such an order.

This relates to the enforcement of functional separation undertakings. This amendment inserts an enforcement of undertakings provision into the functional separation undertakings. If the ACCC determines not to take any breaches of the undertaking to court, it must publish its reasons. That is the basis of it. I think it is important that, if there will not be an enforcement for an apparent breach, we need to know why.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will just indicate briefly that the Australian Greens, after careful consideration, will not be supporting Senator Xenophon’s amendment (19). It appears as drafted to introduce an obligation upon the ACCC to take action in the Federal Court if Telstra breaches functional separation undertakings or principles. It goes a step further than the way the system would function with regard to structural separation, where the ACCC may take action. My reading—unless Senator Xenophon wants to correct me—is that this amendment would actually compel the ACCC to go after Telstra in court, even in the event of a fairly minor or accidental breach of the undertaking. We would prefer that that power remain discretionary. We hope—as I think everybody said in here last night and has said over the last couple of days—that we do not wind up going down the functional separation path, but we think it is probably a bit tough and perhaps a bit heavy-handed to compel the ACCC to give Telstra a belting even in the event of a fairly minor or accidental breach.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I need to apologise and to clarify this amendment, with this swathe of amendments. In terms of functional separation, in the event that an undertaking has not been enforced then the requirement is to go to the Federal Court rather than a publication of reasons. The issue of publication of reasons was another matter. Here it is quite clear from the wording that the court needs to consider it. I note that the government is not likely to support this, but I think it is important to flag this amendment and to raise it. Could the government explain on what basis it considers that it will be satisfied if there is not enforcement—what mechanisms are there to ensure that if there is an apparent breach some action is taken?

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

I indicate that the opposition strongly opposes this amendment. Senator Ludlam, who is often a wise and astute commentator in this place, even though we may disagree from time to time, indicated that this is a very heavy-handed amendment. The reality is that the amendment reads very clearly that under certain conditions the ACCC must apply to the Federal Court for an order under proposed subsection (2). We think that this is extremely heavy-handed, that it ties the ACCC’s hands and that it does not provide for the type of responsiveness that we would expect from an agency such as the ACCC. There are of course other means by which the ACCC can seek enforcement, and we do not think that the chamber needs to be this prescriptive in this legislation on this occasion.

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

I indicate that the government opposes this amendment. The objective of this amendment is already addressed in the bill, in the government’s view. Under the bill, an ‘in force’ functional separation undertaking is a condition of carrier licence—I refer you to clause 82 on page 70—with a range of remedies for a breach available, including for minor breaches, where court proceedings may be excessive. This amendment undermines those enforcement options by requiring the ACCC to seek an order in the Federal Court. Transparency is also provided by the reporting requirement in clause 51 on page 79 of the bill.

Question negatived.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

As we have dealt with amendment (20), I move amendment (21) on sheet 7005 standing in my name:

(21)  Schedule 1, page 84 (after line 3), after Part 1, insert:

Part 1A—Allocation of spectrum licences

Radiocommunications Act 1992

67A  After subsection 60(1)

Insert:

     (1A)    Procedures determined under subsection (1) must provide for limits on the allocation of spectrum licences under this Subdivision, so that:

             (a)    in relation to metropolitan areas, other than in the market area covering the Australian Capital Territory—no more than 25 per cent of the available spectrum may be used by any one person; and

             (b)    in relation to the market area covering the Australian Capital Territory—no more than 33 per cent of the available spectrum may be used by any one person; and

             (c)    in relation to regional areas—no more than 50 per cent of the available spectrum may be used by any one person.

This relates to the whole issue of spectrum licences for the 4G network, which is the next big thing because it is much faster than 3G. This amendment provides limits in the allocation of spectrum whereby in metropolitan areas, not including the ACT, not more than 25 per cent of the available spectrum can be used by any one person or any one entity, and in the ACT not more than 33 per cent can be used by any one entity. In regional areas no more than 50 per cent may be used by any one entity. This is in line with the competition limits set in 2001 for the allocation of the 3G spectrum. I understand the government will not be supporting this but I look forward to an undertaking from the government that we are not going to end up with some near monopoly or monopolistic behaviour in the context of the 4G spectrum.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens will not be supporting this amendment although we are supportive of the position of ensuring that competition principles apply right through the sector, including to the allocation of 4G spectrum. My understanding, unfortunately, is that it is more for reasons of technology than competition policy that it is very difficult to carve up spectrum in this way, given the number of players who are likely to be active in each of the different markets. I also call on the minister, if he is able, to provide us with a fairly detailed explanation of how the government proposes to avoid the kinds of anticompetitive outcomes that I think this amendment is designed to address. We have similar concerns. I am not certain that technologically it is possible to cut up spectrum in the way that Senator Xenophon is proposing.

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

The government does oppose this amendment. We are very conscious of the concerns that Senator Xenophon has raised. Competition limits regarding the allocation of spectrum need to be considered on a case-by-case basis taking into account the purposes for which the spectrum can be used, the quantity of spectrum to be made available, how it is best packaged and the level of competition in the market.

Furthermore, under the current Radiocommunications Act there are procedures for placing competition limits on spectrum that require consultation with the ACCC. It is not clear whether the caps imposed on available spectrum under this provision apply to all available spectrum in a particular area or to a spectrum available under a particular spectrum allocation process being run by the Australian Communications and Media Authority. That said, I recognise Senator Xenophon’s legitimate interest in this area and I have therefore given a commitment that prior to giving any written direction to the ACMA under section 60(10) of the Radiocommunications Act relating to general competition limits to apply to the allocation of the specified bands of spectrum identified in this bill, I will be consulting with him.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I would like to follow that up. Can you indicate that competition principles will be applied to it—that we are not going to have one operator? I am not concerned so much about consultation with me; I am concerned about consultation at large to ensure that there will not be one operator that will dominate the market. Are we likely to have something similar to 3G or approximating that, so that we will not have market domination by any one player and that there will not be any special deal for any one operator?

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

From my discussions with ACMA they are working very much on a competitive model. There are no special deals being envisaged at all. As I mentioned, competition limits regarding the allocation of spectrum need to be considered on a case-by-case basis. Those laws will be applying. I appreciate that you are very concerned about this. I would be equally concerned if we had a perverse outcome like that. While we are certainly seeking to maximise the outcome for taxpayers, the ultimate outcome for taxpayers would be significantly reduced if there was some of the domination that you are concerned about, Senator Xenophon. I will certainly be consulting on that issue and I will certainly have that uppermost in my mind. I believe those competition rules will be part of this consideration.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to the minister for his answer. So does that mean that it is a transparent process? Presumably, the spectrum will be auctioned—is that what the minister is considering—so therefore there is that transparency by virtue of an auction process?

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

Senator Xenophon, we have been consulting with ACMA over the last six months about the process of the auction. A range of auction methods have been used around the world. Some have been widely criticised; some have been less effective. ACMA may have been doing extensive research on this. If you are genuinely interested, I would be happy to talk to ACMA. They have not finalised their position, but they could certainly give you a flavour of the complexities involved and the types of processes. I know that, deep down, you are a bit of a geek, Senator Xenophon, so I would be happy to see whether I could facilitate some information for you on that process. That auction process is absolutely designed to maximise the outcome for taxpayers of a very valuable resource.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I will take the minister up on that offer. I am more of a masochist than a geek. I will get bombarded from the authority with information and, again, as long as I do not have to sign any confidentiality agreement—

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

Only for 12 years!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am sure the minister is joking.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The minister, as one of the Senate’s geeks, would probably appreciate something similar. But can the minister tell us whether, during the process that ACMA is going through around organising how these auctions are to take place, there will be any written indication of how competition principles will be applied? Will there be anything put into the public domain that will guide the discretion of ACMA so that we do not see one single player taking up all the available spectrum in a particular market?

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

Apologies, Senator Ludlam. Could you repeat your question.

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

The minister was doing something on his iPhone.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

Essentially, just to follow up on Senator Xenophon’s question: will your office be putting anything into the public domain during that process of working out how the auctions are going to function to guide the discretion of ACMA so that we do not, for example, wind up with one player controlling all the spectrum in an available market? Consultation is one thing, but will there be written guidelines or anything put into the public domain?

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

Firstly, it would not be possible, in my view, for there to be an outcome where one company could end up with all the spectrum. I make that very clear. That would be a very adverse outcome for the Australian public. In terms of where ACMA are up to in the process, there is a complex trade-off that they are considering, between the auction method—and there are three or four; if you are interested, I am happy to facilitate a briefing with ACMA—and what size of blocks, if I can use that phrase, industry want. We are talking about, say, 120, so 340 sounds fairly straightforward. But what the industry sector has said to us over the last 12 months is that, despite that being the thinking behind the process, say, 12 months or two years ago, different technologies are now being used. Industry’s preference would be for the blocks to be sold off in smaller bits. So there is a trade-off between what technology industry want to use—upload and download is the wrong way to describe it, and I am not an engineer—and the auction process. It is very complex and fascinating, and I will happily organise that briefing if ACMA are in a position to do so.

Secondly, in terms of the public process, if I can I will get back to you before the end of the debate to let you know. If I cannot, I will talk to you later about what the public process part of the overall process is. But the discussion about this matter with ACMA has been fascinating, and I am sure you will enjoy it.

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

I am not sure whether I will put myself closer to Senator Xenophon or Senator Ludlam in the debate around geekiness or otherwise. I do not think I can compete with Senator Ludlam. Senator Xenophon, I am sorry but you are all alone on this amendment. While consistency is not always a standard adhered to in this place, the opposition has been very critical from day one about the government’s approach of using spectrum triggers in this legislation and mixing up issues around spectrum allocation with the division and structural separation of a fixed line service. Is the minister showing off his Financial Review article? We all have it; fear not. We think that it was wrong—

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

The article?

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

The article is a total fabrication. The only accurate thing about the article is the tangled mess you appear to be in, in the pictures. We think that the issues around spectrum allocation are not issues that should be dealt with in this bill. We think it was wrong for the government to try to use them as a gun at the head of Telstra. We obviously have had that debate already. We attempted to remove that and sadly were unsuccessful. I know that Senator Xenophon comes to these amendments with good intentions, and I think the discussion that we have just had in the chamber will at least add to some of the process. We hope the government adopts a transparent, engaged and consultative process with industry, consumer representatives and others to ensure that this spectrum allocation is done in a way that maximises competition. We note we have had strong representations from the mobile telecommunications industry. Now the minister even has the clerks reading his puff piece. He is very proud. Have you got it framed already, Stephen?

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

Clerks are independent.

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

The clerks would give an objective analysis, absolutely. I am pleased the minister is proud of it; it is a lovely piece. We have had strong representations from the AMDA and other sectors who believe this is the wrong way to go; that, whilst Senator Xenophon’s intentions are well meaning, trying to specify in this legislation in this way would be the wrong outcome and would potentially stifle the type of competitive outcomes you would hope to see from the allocation of this spectrum. So we hope that the minister’s good words thus far in response to Senator Xenophon and Senator Ludlam will transfer into good deeds and that we will see a decent process for the allocation of this spectrum and something that provides a good competitive outcome.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendment (21) on sheet 7005 moved by Senator Xenophon be agreed to.

Question negatived.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Madam Temporary Chairman, I seek leave to recommit the vote on Senator Ludlam’s amendment R18 on sheet 7019.

Leave granted.

Senator Ronaldson was the absent senator who did not make up the numbers which would have tied the vote, which would then have negatived the vote. Senator Ronaldson, along with a number of other senators, very wisely seek leave in advance for the last Friday of the last week of sittings. Leave was recalled from all senators when the Senate extended its sittings, and there has been a communication error with Senator Ronaldson’s office and the understanding of the leave withdrawal was not completely comprehended. On that basis Senator Ronaldson is absent from the parliament, so I seek leave to recommit the vote. The upside for the government is that they now have an additional pair.

Question put:

That the amendment (Senator Ludlam’s) be agreed to.

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

by leave—I move opposition amendments (58), (59), (61) and (62) on sheet 7004 together:

(58)  Schedule 1, item 152, page 108 (lines 10 and 11), omit the item, substitute:

152  Subsection 152AV(1)

Omit “152AT or”.

152A  Subsection 152AW(1)

Omit “152AT or”.

152B  Paragraph 152AW(1)(b)

Omit “paragraph 152AT(3)(a) or”.

152C  Paragraph 152AW(1)(c)

Repeal the paragraph.

152D  Paragraph 152AW(1)(e)

Omit “152AT or”.

152E  Paragraph 152AW(1)(f)

Omit “152AT or”.

152F  Paragraph 152AW(1)(g)

Omit “152AT or”.

152G  Paragraph 152AW(1)(h)

Omit “152AT or”.

152H  Paragraph 152AW(5)(a)

Omit “152AT or”.

152J  Paragraph 152AW(5)(c)

Omit “paragraph 152AT(3)(a) or”.

152K  Paragraph 152AW(5)(d)

Omit “paragraph 152AT(3)(a) or”.

152L  Paragraph 152AW(5)(e)

Repeal the paragraph.

152M  Paragraph 152AW(5)(g)

Omit “152AT or”.

152N  Paragraph 152AW(5)(h)

Omit “152AT or”.

152P  Paragraph 152AW(5)(i)

Omit “152AT or”.

152Q  Paragraph 152AW(5)(j)

Omit “152AT or”.

152R  Paragraph 152AW(5)(k)

Omit “152AT or”.

152S  Section 152AX

Omit “152AT or”.

(59)  Schedule 1, item 160, page 131 (after line 2), at the end of Division 4, add:

        (1)    A person whose interests are affected by an access determination may apply in writing to the Tribunal for review of the determination.

        (2)    The application must be made within 21 days after the Commission makes the determination.

        (3)    The Tribunal must review the determination in accordance with section 152BCY.

Orders

        (1)    On a review of an access determination, the Tribunal may order that the determination be affirmed, varied or revoked.

        (2)    If the Tribunal makes an order that the determination be varied or revoked, the Commission is taken to have varied or revoked the determination accordingly (other than for section 152BCX or this section).

        (3)    For the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

Conduct of review

        (4)    For the purposes of the review, the presiding member of the Tribunal may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

        (5)    For the purposes of the review, the Tribunal may have regard only to:

             (a)    any information given, documents produced or evidence given to the Commission in connection with the making of the access determination; and

             (b)    any other information that was referred to in the Commission’s report mentioned in subsection 152BCH(1) or in any reasons for making the access determination that the Commission published.

Time period for review

        (6)    The Tribunal must use its best endeavours to make an order under subsection (1) on or before the action date for the review.

        (7)    If the Tribunal is unable to make an order by the current action date, the Tribunal must, by notice in writing, set a later date as the action date.

        (8)    The Tribunal must:

             (a)    give a copy of the notice to each party to the review; and

             (b)    publish the notice on its website and in a newspaper circulating generally throughout Australia.

        (9)    In this section:

action date, in relation to a review, means:

             (a)    the day 90 days after the Tribunal receives the application for review; or

             (b)    a later date set under this section.

(61)  Schedule 1, item 160, page 140 (after line 4), at the end of Division 4A, add:

        (1)    A person whose interests are affected by binding rules of conduct may apply in writing to the Tribunal for review of the rules.

        (2)    The application must be made within 21 days after the Commission makes the rules.

        (3)    The Tribunal must review the decision in accordance with section 152BDP.

Orders

        (1)    On a review of binding rules of conduct, the Tribunal may order that the rules be affirmed, varied or revoked.

        (2)    If the Tribunal makes an order that the rules be varied or revoked, the Commission is taken to have varied or revoked the rules accordingly (other than for section 152BDO or this section).

        (3)    For the purposes of the review, the Tribunal may perform all the functions and exercise all the powers of the Commission.

Conduct of review

        (4)    For the purposes of the review, the presiding member of the Tribunal may require the Commission to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies.

        (5)    For the purposes of the review, the Tribunal may have regard only to any information given, documents produced or evidence given to the Commission in connection with the making of the rules.

Time period for review

        (6)    The Tribunal must use its best endeavours to make an order under subsection (1) on or before the action date for the review.

        (7)    If the Tribunal is unable to make an order by the current action date, the Tribunal must, by notice in writing, set a later date as the action date.

        (8)    The Tribunal must:

             (a)    give a copy of the notice to each party to the review; and

             (b)    publish the notice on its website and in a newspaper circulating generally throughout Australia.

        (9)    In this section:

action date, in relation to a review is:

             (a)    the day 90 days after the Tribunal receives the application for review; or

             (b)    a later date set under this section.

(62)  Schedule 1, item 177, page 152 (lines 25 and 26), omit the item, substitute:

177  Subsection 152CE(1)

Omit “152BU(2), 152BY(3),”.

177A  Subsection 152CF(1)

Omit “152BU(2), 152BY(3),”.

177B  Paragraph 152CF(1)(b)

Omit “152BU(2) or”.

177C  Paragraph 152CF(1)(c)

Omit “152BU(2) or”.

177D  Paragraph 152CF(1)(d)

Omit “152BY(3) or”.

177E  Paragraph 152CF(1)(e)

Omit “152BY(3) or”.

177F  Paragraph 152CF(5)(a)

Omit “152BU(2), 152BY(3),”.

177G  Section 152CG

Omit “152BU(2), 152BY(3),”.

These amendments relate to merits review provisions within the legislation. The opposition think it is important that these decisions of the ACCC are subject to some level of merits review process, and we think that our amendments will enhance the legislation by implementing such a process.

There has been a great deal of criticism of Telstra over the years and the way they have in many ways gamed the system, using lawyers to challenge access decisions made by the ACCC. That mechanism was previously known as ‘negotiate and arbitrate’ in the terms that were used and it has now been replaced with a more prescriptive approach, locally known as ‘set and forget’. We support those changes.

However, while supporting those changes to a more prescriptive approach that eliminates that potential for gaming of the system, we think that it is important to not completely lose sight of issues of justice and fairness in the way that these matters are dealt with. It is one thing to say that a corporation is using lawyers to game decisions. It is fine to use that description. But to remedy that by totally taking away the rights—in other words, taking away the natural fairness provisions and natural justice provisions entirely—you will end up with a situation which is quite extraordinary, where the ACCC become totally beyond review. We do not think it is appropriate for the ACCC to be able to operate totally beyond review. We have of course—and I have in this debate—placed great faith in and set great store by the capacity of the ACCC in their decision-making processes. Indeed, we wish that the minister would allow the ACCC to do the job that they do in so many other instances without the need for him to limit the scope of their considerations in other aspects of this legislation.

However, in this regard we think that issues of procedural fairness should ensure that there is some review process and review mechanism. This is fundamentally an issue about getting the balance right in this legislation. We think the government has gone too far in one direction in totally eliminating these review processes and we think that allowing a merits review of access determinations by the tribunal is a fair and reasonable step to take. It is important that there be a merits review of these access determinations because they will be conducted in a prescriptive way as opposed to the much criticised approach taken in the legislation prior to this time.

I urge those senators on the crossbenches to understand that this is a relatively simple step. It is a commonplace step. I know that in other areas they have strong regard for the importance of merits review processes and I would hope that, if the government is unwilling to accept these amendments, those on the crossbench will accept that these processes of merits review should occur in determinations by the ACCC in this regard, just as they argue that merits review processes should exist in a range of other ways.

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

The coalition is proposing to restore merits review for anticipatory individual exemptions and special access undertakings. When this bill was first introduced to parliament, the removal of merits review from anticipatory individual exemptions and special access undertakings was widely supported in the industry. The removal of merits review was supported by industry because experience has demonstrated that any accountability benefits provided by merits reviews are strongly outweighed by the delays, the regulatory uncertainty and the outright gaming that have occurred.

The coalition is also proposing to make new provisions for merits review, access determinations and binding rules of conduct. Before making an access determination, the ACCC will have to hold a public inquiry. In the course of this public inquiry the ACCC is likely to receive dozens of submissions from access providers, access seekers, other industry participants and telecommunications users. Submissions will canvass complex pricing and technical issues. The Administrative Review Council, which is the body established to provide advice to the Attorney-General about administrative law, has published guidelines about what kinds of administrative decisions are suitable for merits review, and—this is important for the Senate in considering this opposition amendment—paragraph 4.53 of the guidelines states that decisions which involve extensive public inquiries or consultations are not suitable for merits review. Access determinations fall into this category.

In 2002, the government of the day—I think that those opposite may have been involved in that!—abolished merits review for ACCC arbitration determinations because merits review was hindering the development of competition.

Barnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | Link to this | Hansard source

Senator Joyce interjecting—

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

That is the most fundamental point, Senator Joyce, and I know you have concerns in this area. But let me be clear: your previous government very specifically went down this path for good reason.

Barnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | Link to this | Hansard source

That was for the sale of Telstra.

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

Well, Senator Joyce, perhaps you should not have voted for it. But then, if you had not, we would not be here today. The opposition now wants to reintroduce merits review—again, a move which would cause uncertainty and unnecessary delays for the industry.

In relation to binding rules of conduct, the bill provides that they will have a maximum duration of 12 months. Furthermore, the ACCC will have to commence a public inquiry to vary the access determination or to make a new access determination within 30 days of making binding rules of conduct. In other words, before any merits review or binding rules of conduct could be considered, let alone take effect, the ACCC would have to have already started the public inquiry process to make changes to the relevant access determination.

The effect of the coalition’s amendment will be to waste the resources of the Australian Competition Tribunal, the ACCC and the telco industry on a meaningless exercise in red tape.

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

Senator Conroy sought to base a large part of his argument on the time frames for the merits review and the impact that they would have. We highlight to those on the crossbenches that we do have very specific time lines set out in these amendments and that, yes, merits review processes were previously abolished. However, we are looking at a different approach now and a different system being put in place. It is a system that is, as I said, far more prescriptive in terms of the outcomes. We think that, in terms of a balanced approach, if you have a prescriptive decision-making process at one end, it is quite reasonable to have a merits review process at the other end.

The time lines proposed in these amendments, No 59 and particularly the proposed sections 152BCX and 152BCY, do set out some very tight time lines that will not only limit but effectively prevent the type of gaming that we have seen previously while providing some reasonable level of fairness. So we think that those time lines are a good balance. It is always up for debate but, in terms of what the minister has said, arguing emphatically against a merits review approach is unreasonable. We think that having something in here is better than nothing in this regard. We believe we have got the balance right by putting in place a merits review provision but ensuring that it is one that has some clear, set time periods that ensure that there is not the type of gaming and the type of delaying tactics that we have seen previously. I would ask the crossbenchers to look closely at those time lines to see that we actually do have a process in place that we believe gets that balance right.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I indicate that the Australian Greens will not be supporting this batch of opposition amendments. I might speak to the next batch as well because I know they are related and the intent is certainly related. Merits review is appealing in the abstract but in the context of these agreements we believe it is actually undesirable. Merits review of ACCC access decisions was removed by the coalition as long ago as 2002 because it was simply a mechanism for Telstra to tie up access seekers in endless and very expensive proceedings, and created disincentive for other access seekers to challenge Telstra’s decisions on questions of access to its network.

As I indicated, I will speak as well on the next batch of opposition amendments, which are related to procedural fairness. In the context of the binding rules of conduct issued by the ACCC, these are actually out of place, as binding rules of conduct are urgent interim measures intended to manage a situation until it can be properly addressed via an access determination. This will be produced or varied through a process of public consultation with all stakeholders and I think it would be a waste of public resources, quite frankly, to review an interim decision to see whether it is a proper response to a situation while the ACCC is essentially busy conducting a process to determine the proper response to that same situation. Senator Birmingham has moved the first batch but I indicate in advance that the Australian Greens will not be supporting either of these batches of amendments for those reasons.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that for similar reasons to Senator Ludlam’s I will not be supporting these amendments. There is a question to Senator Birmingham in relation to this. I understand the intent of what he is trying to do and I will not say it is well-meaning or well-intentioned because that is what Senator Birmingham accuses me of and I take that as—is it a backhanded insult? It is not a backhanded compliment—damning with faint praise I think is better. The concern I have is that, given the policy objective here of structural separation of Telstra, if we insert what Senator Birmingham is seeking to do on behalf of the coalition you would actually put a spanner in the works, because that is what I see as the public policy imperative: to structurally separate Telstra so that we do not have this vertically integrated monopoly of telecommunications services in this country. That was a mistake and I think there are some coalition senators, as I have said, who in their heart of hearts would acknowledge that the way this was done, particularly in the last sale, by having the wholesale and retail arms meshed together, has been bad for competition. It has been bad for services. I do not think it has been good for the bush.

Barnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | Link to this | Hansard source

Senator Joyce interjecting—

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Senator Joyce—

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

He used to believe in looking after the bush.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Senator Conroy, I have to defend Senator Joyce. Senator Joyce still believes in looking after the bush, so I think we will agree to disagree there, Senator Conroy.

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

He’s too generous a soul!

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am too generous a soul! Maybe I have to make up for some of the other souls in this place, Senator Conroy. I think Senator Joyce’s interjection was helpful. He said that openly in terms of the whole issue of having the wholesale and retail arms together. Senator Joyce understands that better than most, I think, and he is to be commended for that. I know about his concerns for telecommunications in the bush.

I cannot support this amendment. I am concerned that it would stymie the process. It could make it unworkable. We need to consider that Telstra shareholders need to approve this by June. That is a key date in relation to this, although I would have thought that what the government is offering is a significant sweetener. I understand the policy dilemmas that Senator Conroy had in relation to this. He has to unscramble the egg. When it comes to unscrambling this legislative egg, if he pulls this off it will be a Master Chef feat. That is what the dilemma is and, therefore, for those reasons I cannot support this amendment. If Senator Birmingham has any further thoughts in relation to that I would be grateful to hear from him.

Barnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | Link to this | Hansard source

The National Party has always had concerns about structural separation. The issue here of course is that this legislation ties up with another very substantive issue, NBN, which is—we do not know. It is $35.7 billion if you cost it one way and probably in excess of $50 billion if you choose to cost it in other ways, but somewhere in between, most likely. Because of its close association with that major reason for Australia to go further into debt, we need to be very diligent about exactly what we are doing here. We can have our concerns, as we do, in the National Party about needing structural separation. Actually, I believe those concerns are held all around the chamber. But just because you believe in something does not mean you believe in any possible way to get to it, because any possible way, as in the way the Labor Party are doing it, has all sorts of hairs all over it. The biggest concern is the debt that you end up landing us in and the fact that you are unable to prove to us that you can actually pay that debt back or that there is an actual benefit from that debt. That is the crux of it.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

With all these things there are always two sides to the debate. I fully understand the claims and the way it was with the merits review as it currently stands—the gaming issue and the endless delays that that caused. And so the immediate response could go to the reverse and just take it out—get rid of it completely.

The coalition has put forward a reasonable argument. Maybe we should try putting some time frames around it. It will mean the ACCC is probably going to be fairly hectic in this regard. But there is something in me that says I am reluctant to just throw out the merits review completely at this stage, so I will be supporting the opposition on the merits review issue. It is basically a very final issue in a determination, and there is something in me that says there should be at least some way of having a merits review with some time constraints on it. A lot of the amendments that the opposition have put forward could be classified as maybe a little mischievous. I think this one is a genuine attempt to look at the issue and not go from the one extreme of open slather to the other of having no merits review at all. That is my case. I will be supporting the opposition.

Question put:

That the amendments (Senator Birmingham’s) be agreed to.

Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Link to 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.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | Link to 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.

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

I need to respond to some of the comments of Senator Conroy. This is certainly not politics for politics’ sake, as he said at the end of his remarks. We acknowledged, and I acknowledged in my comments on the previous amendment and these amendments, that we do not think the previous system worked effectively. We do have concerns about the way the system was gamed. We do think there are problems that need to be fixed. We acknowledge and support the more prescriptive approach that is being put in place that will ensure that the setting of determinations is done by far quicker and more effective means. We acknowledge that we believe there should be some form of merits review; that matter has been decided.

In relation to these binding rules of conduct and Senator Conroy’s arguments that these need to be applied without procedural fairness because of their urgency, we do not believe there is an undue delay in providing a reasonable level of normal procedural fairness. By having procedural fairness you are not imposing forms of appeal; you are not opposing anything that will actually allow the parties to delay the process in any meaningful way. You are simply ensuring that there is some notice given, that there is potentially some opportunity for comment. That is basically as far as decent procedural fairness provisions are likely to go.

In terms of the urgency, if you were talking in terms of a court system and you sought an ex parte injunction along the way, you would not have such an injunction usually stand for a 12-month period. It could, Senator Xenophon, but it would not be usual for such things to stand for that period of time without the other party having the opportunity to make their case to get the matter effectively resolved. In this instance we acknowledge there is a need for the government to have provisions for urgent action. That is fine. These amendments will not prevent that urgent action. They will simply require the ACCC to act in a procedurally fair way to the parties involved. It is a simple case; it should not be the matter of such argument in this place.

I am surprised that Senator Conroy thinks that of all our constructive amendments, and the constructive approach the opposition may have taken notwithstanding our differences on this matter, this is one that is said to be not constructive. We think this is a straightforward amendment. We do not think it comes with enormous ramifications for the operation of the system. We think, however, that it simply strengthens the system and ensures that the ACCC’s actions and decisions engage the parties that they affect in a fair and responsible manner.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that I cannot support these amendments. If the public policy imperative is to structurally separate Telstra, with all the consequences that has and potential benefits it has for consumers and businesses, then this process potentially could get it off the rails. If you look at amendment (61), ‘Application for review’, it says:

A person whose interests are affected by binding rules of conduct may apply in writing to the Tribunal for review of the rules.

That triggers off a whole process. The review must be in accordance with the way that the tribunal operates, in accordance with section—

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

Mr Temporary Chairman, on a point of order: amendment (61) was defeated in the last division.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Just to clarify, Senator Xenophon, we are debating amendments (60) and (63) on sheet 7004.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I apologise, but in terms of a review of access determinations the principles are the same: the tribunal may order that the determination be ‘affirmed, varied or revoked’; the tribunal  ‘makes an order’ for the determination to be ‘varied or revoked’; the tribunal ‘may perform all the functions and exercise all the powers of the commission’. If there is injunctive relief sought, Senator Birmingham is right: you would not expect it to go for 12 months. But potentially it could and it could go for several months. That has huge implications in relation to this.

So long as there is transparency in the process in the way determinations are made and the consultation that has been embedded in this legislation now, I would have thought that would provide adequate scope and adequate protections. The risk with this is that—and I do not say it in a pejorative sense at all; I do not question Senator Birmingham’s intentions other than being good ones from the perspective of the coalition—if you go down this path you will throw a spanner in the works when it comes to the structural separation of Telstra, and that is my primary concern.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

This is another one of those tricky issues. The issue about whether a decision is procedurally fair is not really the primary focus. The issue is whether it is the right decision. I tend to think that we need to get the balance right. I will not be supporting these proposals. You can make the right decision, even though procedurally it may not be the right view, but I think the urgency of passing this legislation is important. I believe merits review should be still there. Procedural fairness is a very interesting issue. Many times, for the sake of getting things done in the interests of the broader community, merits reviews need to be done and that decision could be well held by the ACCC itself.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that section 152BD96) of division 4A in item 160, and item 212, stand as printed.

Question agreed to.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I move amendment (22) on sheet 7005 revised:

(22)  Schedule 1, item 160, page 143 (after line 25), after section 152BEA, insert:

        (1)    The Commission is to maintain a register, to be known as the Register of Access Agreements, in which the Commission must include all access agreements given to the Commission under section 152BEA.

        (2)    The Register is to be maintained by electronic means.

        (3)    The Register is to be made available for inspection on the Commission’s website.

        (4)    The Register is not a legislative instrument.

        (5)    If the Commission is satisfied that:

             (a)    publication of a particular provision of an access agreement could reasonably be expected to prejudice substantially the commercial interests of a person; and

             (b)    the prejudice outweighs the public interest in the publication of the provision;

the Commission may remove the provision from the version of the agreement that is included in the Register.

        (6)    If the Commission does so, the Commission must include in the Register an annotation to that effect.

This amendment relates to a register of access agreements. This requires the ACCC to have available on its website the access agreements between access seekers, carriers and carriage service providers given to the commission. It also includes a provision whereby the ACCC will have regard to commercial interests and will remove that portion annotated to that effect. I understand issues of commercial-in-confidence, but I think it is important that access agreements be up there on the website, that they be transparent and that people are able to compare apples with apples, in a sense, in access agreements. If there is preferential treatment in access agreements, it is there for all to see. An independent analysis can take the place of that. That is what this amendment is about. I may be alone on this amendment, as I have been with others, but I still think the principle is an important one and it ought to be pursued.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I will speak briefly. I thought we might hear from the Minister for Broadband, Communications and the Digital Economy or Senator Birmingham, but I indicate briefly that the Australian Greens will not be supporting this amendment—although it is line ball. Senator Xenophon has outlined that it requires the publication of a register of access agreements once commercially sensitive information has been redacted. We understand—but perhaps the minister can tell us from his own mouth—that the government will be opposing it in that it would reduce room for flexible negotiations by Telstra with access seekers. We just were not sure why, in a world of access determinations, we would need to have all access agreements published in this way. The ACCC will be laying down the rules of the game. It is not necessary, we do not believe, to create this register. If Senator Xenophon or Senator Birmingham have some compelling arguments for it, then we would consider it. We will not be supporting this amendment.

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

Can I apologise for being a little slow, Senator Ludlam. The government, as you have foreshadowed, is opposing this amendment. There are legitimate commercial reasons for the parties to keep confidential the fact that they have entered into access agreements, and this amendment may discourage the industry from using access agreements. For example, a provider may be willing to negotiate inferior commercial terms on one aspect of access in exchange for better terms on another aspect. Disclosure of this information would be likely to reveal critical information about the provider’s future retail strategy.

All access agreements must be lodged in full with the ACCC, which will be able to take action under part 11B if any access arrangements reveal the presence of anti-competitive behaviour. It is highly likely that parties to the majority of access agreements will claim confidentiality. This would create a high administrative burden for the ACCC, which would ultimately impact on the industry through the cost recovery process. A publication requirement will inhibit development of new services to meet the needs of niche markets.

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

The opposition equally will not be supporting this amendment. We concur in some ways with the comments of others in the chamber. We believe that there is potential for this amendment to go one of two ways. One way could be for so much commercially sensitive information within those agreements published as to render them fairly well ineffective in terms of being published. The other way is that you will end up with a lowest common denominator approach, or potentially a highest common denominator approach, where we do not get the competitive, innovative, thoughtful solutions and approaches to these access agreements that do spark competition, that do drive different carriers to take different approaches that can lead to better outcomes for customers. In this case we need to have some faith in the work that the commission does and have confidence that they will, under all of the new powers that either the minister has or that they have, in different respects ensure that they get good competitive outcomes. We think that this could be an amendment that either backfires or potentially ends up as a meaningless amendment. Either way, we think it is better not being in the bill as it proceeds.

Question negatived.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (R19) on sheet 7020:

(R19)       Schedule 1, item 160, page 144 (after line 12), at the end of Division 4B, add:

        (1)    This section applies if an access agreement is inconsistent with any:

             (a)    access determination; or

             (b)    binding rule of conduct; or

             (c)    special access undertaking;

which comes into force on a date after the access agreement was made.

        (2)    Either party to the access agreement may notify the other party that it wishes to cancel the access agreement.

        (3)    The access agreement ceases to apply at the time a notification under subsection (2) is given.

Our amendment (R19) creates a form of no-disadvantage test to apply in the long transition period between the passage of the bill and the full migration of all of Telstra’s traffic across to NBN Co. Senators would be aware that this amendment is quite different to the original one. As a result of discussions over the past couple of days, we have revised it. We have circulated a revision on sheet 7020, which effectively balances things a little bit. We recognise that in the short term access seekers may need to secure access agreements in the absence of a special access undertaking, a binding rule of conduct or on an access determination which could place them at a disadvantage. And if such instruments come into force at a later time, we believe that access seekers should be able to effectively roll back to the safety net of such a determination.

It does no more really than acknowledge that there is a significant asymmetry in market power between Telstra and access seekers and that providing this kind of safety net is an appropriate safeguard to provide. We were persuaded that the early form of the Australian Greens amendment effectively would have allowed the access seekers to cherry pick the best bits out of the contracts that they had signed, and therefore we have balanced this up a little bit. Now it reads so that either party to the access agreement can notify the other that it wishes to cancel the agreement. Having this clause in there will probably guide the discretion of parties to these agreements when they are being signed in the first place. That right would not just apply to the access seeker; it could just as easily apply to Telstra. We feel that some of the critique of the first version of the amendment was probably justified and I hope that the government will at least support this one, where we have effectively made the playing field level for all parties to these agreements.

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

I indicate that this has probably been the toughest of the amendments for us to consider. It has many things in it that are very, very attractive to the government. I understand the sentiment and I understand why the Greens are moving this, and I have spoken to many of the people who have encouraged them to, but, on balance, after much consideration—and I know this will disappoint some people in the industry—we will be opposing this amendment.

As has been said, the amendment proposes that either party to an access agreement may cancel that access agreement where it is inconsistent with the terms of an access determination, binding rules of conduct or a special access undertaking which comes into force after the access agreement is made. The amendment is based on concerns raised by the Competitive Carriers Coalition that Telstra could compel access seekers into accepting an unfavourable access agreement in order to guarantee supply of a declared service. However, the revised part at 11C will not operate in this way. Access seekers will not be forced to agree to unfair access agreements. Instead, they will be able to require Telstra to provide them with access to its network on the terms and conditions set out in the relevant access determination. This is clearly set out in the revised terms of proposed section 152AY. In other words, once a final access determination is made, access seekers will only sign agreements with Telstra where it is in their commercial interests to do so. This amendment would have the effect of removing any incentive for Telstra or any other access provider to make commercial agreements with access seekers, as they would know that access seekers could simply walk away from the access agreement when it suited them.

The amendment does not recognise that parties may incur costs and obtain benefits at different stages of an agreement. For example, an access agreement may require the access provider to make investments to upgrade its network capacity or infrastructure. In return, the access seeker would commit to obtaining supply of a service on particular terms, such as a price that reflected the investment or for a fixed term or a guaranteed minimum capacity. It is precisely these types of mutually beneficial arrangements that the access agreement provisions seek to allow and that this amendment would stifle.

The amendment also carries an unacceptable risk in the case of agreements in force before the bill commenced that it would involve an acquisition of property other than on just terms, for which compensation would be payable by the government. However, to address a transitional issue the bill already provides that access seekers can lodge a dispute in relation to access agreements until such time as the first final access determination is made for that service. But I do acknowledge the very legitimate concerns in industry, and I will be keeping a very close eye on how this plays out in reality. I am sure that other senators will also be watching that.

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

I will be very brief. The opposition will be opposing amendment (R19) of the Australian Greens providing primacy of access agreements. We think that this is unnecessary. We think that it comes with a number of risks, a number of which have just been outlined by the minister. We think there are effective transitional provisions already within the bill that allow for the ACCC to be able to make decisions which prevail over access agreements if need be. As a result, we do not think this is a wise path for the bill to be taking.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that I will be supporting Australian Greens amendment (R19) moved by Senator Ludlam. In terms of the primacy of access agreements, I think what this amendment is intending to do is desirable in the scheme of things. I think it enhances what is being proposed by the bill. It is interesting that Senator Conroy said that it was a tough call in relation to this amendment. I appreciate his frankness in relation to that.

It seems inevitable that this amendment will be defeated but can the government indicate how it will deal, on an ongoing basis, with some of the concerns raised about this. Will there be some formal monitoring? Will there be a process of review in relation to this whole issue of primacy of access agreements? I appreciate the minister’s candour in indicating that it was a tough call and that it is complex, but given the substantial merits of this amendment moved by Senator Ludlam I wonder how those concerns can be facilitated in some constructive way and with some due process.

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

As I said, this has really been the toughest call in this debate. I am very conscious of the argument of Senator Ludlam, and more importantly the arguments that have convinced Senator Ludlam to move down this path. As I said in my earlier contribution, we will be watching this closely. We will be having conversations with the ACCC and we will be continuing to maintain a close dialogue with those in the industry. While some of these issues are commercially sensitive and cannot be revealed publicly I have always been able to have frank private conversations with the players in the industry on these types of issues.

I probably will not have a formalised process because it is hard to have discussions in a formal public way about issues that are commercial. I will welcome the ongoing scrutiny by the ACCC and I will be liaising with the ACCC. I am sure, Senator Xenophon, you will also be maintaining a weather eye on this so that you can keep me well informed. I have, as I said, many people in the industry keeping me continually updated on these sorts of matters and I will be monitoring this closely.

Question put:

That the amendment (Senator Ludlam’s) be agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move:

(20)  Schedule 1, page 155 (after line 15), after item 195, insert:

195A  After section 152EO

Insert:

        (1)    Before 30 June 2014, the Minister must cause to be conducted a review of the operation of:

             (a)    this Part; and

             (b)    the remaining provisions of this Act so far as they relate to this Part.

        (2)    A review under subsection (1) must make provision for public consultation.

        (3)    The Minister must cause to be prepared a report of a review under subsection (1).

        (4)    The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the report.

We are proposing a review of amendments to the Trade Practices Act after a period of three years. We propose that before 30 June 2014 the minister reviews the operation of this part of the act that we are amending and the remaining provisions of the act.

I think it dovetails quite nicely with some of the provisions that Senator Xenophon had inserted about rolling reviews, but this one would be conducted by the minister and so we would get a view of whether the restructure of the market is actually working, whether people are getting burnt and whether competition principles are being preserved and so on.

A couple of years after it has been signed it will effectively examine whether the access regime is functioning appropriately, principally because the bill grants such wide discretion to the ACCC—I think that is an argument that everybody has made in here over the last couple of days—to the degree that even rights to procedural fairness and merits review by the Competition Tribunal have been removed.

We acknowledge the reasoning behind those amendments but remain concerned that in solving one problem—that is, removing the ability of the incumbent to mire access determinations in endless procedural delays—we will in fact have removed two avenues of redress which the industry may well later regret. A formal review will allow the government to assess whether the new access regime is functioning as intended, and we propose that it be undertaken before 30 June 2014 and then be provided directly to parliament within 15 days of its receipt by the minister.

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

My understanding is that this amendment is not being opposed by the government, but I will let Senator Conroy indicate that. In regard to Senator Ludlam’s contribution, whilst nobody wishes to see a rolling series of reviews, the opposition does accept that a good, thorough review of the operation of this component of the act is reasonable, and 3½ years in which to ensure such review is undertaken is appropriate and acceptable, and we will support this amendment.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I support the amendment.

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

The government supports the amendment.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

I move Australian Greens amendment (21) on sheet 7006:

(21)  Schedule 1, page 168 (after line 15), after item 216, insert:

216A  Subparagraph 6(1)(b)(i)

Omit “has a hearing impairment”, substitute “is deaf or has a hearing and/or speech impairment”.

216B  Subparagraph 6(1)(b)(ii)

Omit “teletypewriter”, substitute “device that enables text-based communication”.

This amendment is also relatively simple; it comes in two parts and broadens the definition of a standard telephone service beyond teletypewriters, senators will be pleased to know. We have also broadened the definition of hearing impairment, for fairly obvious reasons. At present it is by no means clear that the equivalent to voice telephony includes services that came into being subsequent to the publication of the original act, such as VOIP, video over IP and text over IP. The current reference to text telephony is a legacy of outdated analog technology. We thought this was an appropriate time to bring this definition up to date. I commend the amendment to the chamber.

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

The opposition supports these amendments. We do think that they are reasonable; we do think that they update definitions appropriately and certainly I think probably all members in the chamber stand as one in wanting to ensure that those with hearing impairment, speech impairment or otherwise are appropriately catered for in the telecommunications sector.

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

I have a long explanation of why we are supporting this amendment but I am sure the chamber would rather just hear that we are supporting it.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (22) and (23) on sheet 7006:

(22)  Schedule 1, page 181 (after line 20), after Part 4, insert:

Part 4A—Consumer protection

Telecommunications (Consumer Protection and Service Standards) Act 1999

226A  Paragraph 115(1)(f)

Omit “.”, substitute “; and”.

226B  At the end of subsection 115(1)

Add:

             (g)    the advertising of products and informing customers about the prices, terms and conditions of products on offer; and

             (h)    the fairness of consumer contract terms including having regard to the intelligibility and accessibility of contract terms; and

              (i)    the provision of billing information and billing services to customers; and

              (j)    the credit assessment of customers, the provision of security and credit control tools, and a requirement to have a financial hardship policy to assist customers experiencing financial difficulties; and

             (k)    the complaint handling procedures for information provision to customers and recording of their complaints.

(23)  Schedule 1, page 182 (after line 1), after the heading to Part 5, insert:

Telecommunications Act 1997

227A  At the end of paragraph 105(3)(d)

Add:

          and (iii)    performance standards made, and performance benchmarks set, under Part 6;

The first amendment adds five additional clauses to part 4A section 115 of the Telecommunications (Consumer Protection and Service Standards)Act 1999, relating particularly to performance standards. I suspect the government still does not like them but I am going to put the case nonetheless.

Currently ACMA may make performance standards to be complied with by carriage service providers in relation to six different matters, ranging from the time it takes to hook people up to a service to response time to customer complaints and so on. We are seeking to widen the range of matters for which ACMA may develop performance benchmarks which it can then enforce. This will go some way towards winding back the high rates of complaints and customer dissatisfaction which have plagued the industry and which the minister himself has acknowledged on many occasions.

The range of matters that we seek to include cover issues such as standards in advertising, fairness, intelligibility of contracts, provision of billing information and complaint handling procedures. I am aware that the government has concerns that some of these issues are diffuse and it will be difficult to provide accurate metrics against which to judge carriage providers. We believe that ACMA does have the ability and the wit to develop such benchmarks even if they have commonsense and plain English standards to give service providers a better defined idea of what the government expects, or it could simply be metrics along the lines of the number of complaints received during a defined period of time. I hope that we can give ACMA the benefit of the doubt and let them define these benchmarks rather than assuming that it cannot be done.

Amendment (23) simply adds the provisions that we seek to insert here into ACMA’s reporting obligations. I strongly commend these amendments to the chamber.

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

The government would like to indicate that we are opposing these amendments, and because we are opposing them I think Senator Ludlam deserves an explanation, so I will go through the reasoning behind that position. On the Greens amendment to provide for customer service guarantee performance standards to apply to the matters currently dealt with by the industry self-regulatory Telecommunications Consumer Protections Code made under part 6 of the Telecommunications Act, the government agrees with the Greens that more needs to be done to encourage telephone companies to comply with the existing industry self-regulatory Telecommunications Consumer Protections Code. However, the CSG is not a suitable mechanism to apply to the matters in the Telecommunications Consumer Protection Code. There would be significant difficulties in attempting to apply performance standards or quantitative performance benchmarks to matters such as advertising of products, the fairness of contracts, the intelligibility and accessibility of contract terms, the provision of billing information, credit assessment of customers, financial hardship policies and complaints-handling procedures as proposed by the Greens.

Part 9 of the government’s bill will amend the Telecommunications Act to allow the minister to direct the Australian Telecommunications and Media Authority to determine an industry standard where industry codes do not adequately deal with consumer issues. The power is a more appropriate and broader mechanism than the amendments of the CSG as proposed by the Greens. If the matters in the Telecommunications Consumer Protections Code are made an industry standard under part 6 of the Telecommunications Act, providers will be required to comply or face civil penalties. Noncompliance could also be subject to the new ACMA infringement notice scheme. I understand that informal discussions with the Australian Consumers Communications Action Network indicate that ACCAN considers the government’s proposal would satisfactorily meet the concerns of consumers in this matter.

It is expected that the power proposed under part 9 of the bill will be used in instances where the minister considers that an existing industry code fails to adequately address the interests of consumers or where there is an immediate concern that the development of an industry code would result in an unreasonable delay in providing protections for consumers. Some examples of where a standard may be appropriate include that on 1 July 2009 a new industry code came into force relating to mobile premium services. This power may have been utilised to address the issues around mobile phone premium services if industry had not put in place a robust code. Work is currently being undertaken by two separate bodies on consumer protection and customer service issues within the telco industry. The Communications Alliance, an industry peak body, is currently undertaking a review of the Telecommunications Consumer Protection Code and ACMA is currently undertaking an inquiry into customer service and complaints handling. If the current Communications Alliance code review fails to adequately address the interests of consumers and the government were to judge the revised code as deficient in the protections it afforded to consumers in the area of complaint handling, or the ACMA review were to result in recommendations about minimum standards for customer service, the government may direct the ACMA to develop a standard dealing with such issues.

Therefore, while the government absolutely agrees with the sentiments of the amendments proposed by the Greens, the government considers the powers contained in part 9 of the bill are a more appropriate way to deal with concerns about compliance with the existing Telecommunications Consumer Protection Code.

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

I shall be brief. For many of the reasons outlined by Senator Conroy, the opposition does not support the Greens amendments in this regard.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

It is a great shame that our brief honeymoon with the coalition on these amendments appears to have come to an end all too soon. We are offering to give the ACMA and thereby the minister some teeth in some pretty important areas of consumer protection. These are issues that the minister himself has been extremely outspoken on in preceding years and so I find it curious in the extreme that the minister is not seeking to effectively grant one of his own agencies the powers to deal with these matters directly. I wonder whether the minister would like to spell out for us where exactly consumers will go for the matters that we have raised in parts G through to K that we have sought to insert, how exactly those matters will be addressed and why exactly it is that the government believes that it is not possible to provide metrics, for example, on financial hardship policies, now in the water space, electricity space and so on. A lot of work has been done in recent years about financial hardship policy for essential services, to pick that example out as one. Why should we not apply such policies to the telecommunications space and give ACMA the benefit of the doubt that if so directed they could indeed create standards that would be able to be benchmarked against to give industry participants a very clear idea of what exactly they need to come up with? If we can do it in other utilities, why not in telecommunications?

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

As you know, all of the issues you raise, Senator Ludlam, I am very sympathetic to. We are going through a new process that I believe deserves a chance before we need to move to where you have arrived at. I would invite your participation in all of those reviews that you have been talking about. I know that whether or not I invited you I would be going to get it! So I think that we should see how these new processes work before we jump to where you are. I look forward to my ongoing work with the ACCAN group—and I know you work closely with them as well—to see if we can improve these processes that we are going through which will allow us to incorporate many of the issues that you have raised. I think it is a little unfair to suggest that we are not addressing those through this process. I look forward to your ongoing participation and cooperation in those processes.

Question negatived.

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

by leave—I move opposition amendments (1) and (2) on sheet 7012 concurrently:

(1)    Clause 2, page 3 (after table item 12), insert:

(2)    Schedule 1, page 204 (after line 3), at the end of the Schedule, add:

Part 10—Productivity Commission to prepare cost-benefit analysis on NBN

Productivity Commission Act 1998

1  After Division 1 of Part 3

Insert:

        (1)    The Commission must prepare a cost-benefit analysis of the NBN proposal and publish it by 31 May 2011.

        (2)    The cost-benefit analysis must include the following matters:

             (a)    an analysis of the availability of broadband services across Australia, identifying those suburbs and regions where current service is of a lesser standard or higher price than the best services available in the capital cities;

             (b)    a consideration of the different options by which broadband services of particular speeds could be made available to all Australians (particularly those in regional and remote areas and those in underserved metropolitan areas) with an estimate of the likely timeframe and cost of each option;

             (c)    a consideration of the economy-wide benefits likely to flow from enhanced broadband services around Australia, the applications likely to be used on such services, and in particular a consideration of the different scale of such benefits depending on the broadband speed available;

             (d)    a full and transparent costing of the proposed NBN project, including any financial and economic projections, models, assumption and sensitivity calculations underpinning the estimates;

             (e)    an examination of the likely pricing structure of NBN services;

              (f)    an examination of reasonable commercial rates of return and cash flows for NBN Co, taking into account NBN Co’s costs of equity and debt and the risk profile of both NBN Co and the market in which it operates;

             (g)    a consideration of what the likely realisable value of NBN Co would be if it were to be privatised after five years, as currently contemplated in the legislation;

             (h)    an examination of the design, construction and operating arrangements of the proposed NBN project, so that direct and indirect outcomes from its construction and operation can be identified and evaluated;

              (i)    an examination of the likely environmental and health impacts of the construction of the NBN;

              (j)    an analysis of the effects of the proposed NBN on competition in the Australian fixed-line broadband market, including its effects on the scope for competition among different technologies for fixed-line and wireless broadband provision;

             (k)    an analysis of the impact of any impact of any exemption from the Trade Practices Act 1974 / Competition and Consumer Act 2010 in connection to the NBN;

              (l)    benchmarking of the NBN against comparable broadband services available in overseas markets;

            (m)    consideration of potential technological advances and the likely impact on the NBN, including whether future technologies may be superior;

             (n)    consideration of the likely take-up rate for NBN services, having particular regard to international experience;

             (o)    consideration of the national building social and community-specific benefits flowing from the NBN, having particular regard to rural and regional communities.

It is with pleasure that I have moved those amendments. These are the last amendments in the debate on this piece of legislation. Most of the time in the committee stage has been spent on debating amendments related to the structural separation and/or the functional separation of Telstra. Those are reasonable things. It is appropriate that we have looked at those as one of the key objectives of this piece of legislation. Whilst we may disagree with some of the means by which the government is seeking to achieve this key objective, the opposition does support the ultimate aim of that separation and the competitive benefits that it will provide to the telecommunications sector into the future. However, integrated into this bill is fundamentally a structure to support the development of the government’s National Broadband Network. Whether this is a $35.7 billion network, a $43 billion network or a $50 billion network—and we can have those debates—it is a very large amount of money. It is a phenomenally huge amount of money that the government is committing to its NBN and it is committing it with no knowledge whatsoever as to whether it is the best way to deliver fast and affordable broadband services to all Australians at the lowest cost to taxpayers in a manner that promotes competition in the Australian telecommunications sector.

The main amendment seeks to at least test the government’s assumptions. That is the fundamental basis of this amendment and it is, of course, something that the opposition has been calling for from day one of the conception of this NBN by the government. When Senator Conroy found that his NBN mark 1, his fibre-to-the-node $4.7 billion proposal, did not stack up and crafted on the back of an aircraft napkin, in the RAAF VIP with then Prime Minister Rudd, the proposal for his $43 billion fibre-to-the-home National Broadband Network, we heard about this idea and we said that what the government needs to do is undertake a full, decent, robust cost-benefit analysis of this gargantuan proposal to ensure that it is the best way to get fast, affordable broadband for all Australians. It has been a long time in the debate since Senator Conroy first announced that $43 billion proposal. However, we still have not seen anything that vaguely resembles a cost-benefit analysis of the government’s proposal. This amendment seeks to achieve that.

This amendment will require the Productivity Commission to undertake a thorough cost-benefit analysis of the NBN proposal, examining that proposal thoroughly and considering whether there may be alternatives that could deliver, for Australia and for all Australians, fast affordable broadband at a lower cost. That should be the aim of everyone in this place—to achieve fast affordable broadband at the lowest possible cost.

I do not know what the government are afraid of in having this cost-benefit analysis, aside from the fear that it just may prove them wrong, that it just may prove the ‘NBN bro’—who is much lauded today, although he seems to be all tangled up in wires in his fabulous Financial Review Magazine feature—wrong. It just may prove the NBN bro wrong if we have this decent Productivity Commission analysis. The government do seem to be afraid that it may prove them wrong, because that can be their only real fear in this.

Let us be under absolutely no misapprehension, and let the crossbenches in particular be under no misapprehension: passing this amendment will have absolutely no impact on the passage of this legislation. To Senator Xenophon, to Senator Fielding and to the Greens: I emphasise that this government, having gone this far—if you require a Productivity Commission assessment to be undertaken—is not about to delay its own legislation any further. It will have to accept this legislation, it will have to accept this PC inquiry and it will do so having accepted all of the other undertakings that you have variously obtained from the government. But you will actually then see a thorough, robust cost-benefit analysis undertaken.

Let us also be under no misapprehension here: it will not delay the structural separation of Telstra; it will not delay the construction of the NBN. It will simply ensure that, by 31 May next year, we have a thorough cost-benefit analysis, one that has been comprehensively undertaken, and that we have, for all Australians to see, some analysis of whether this enormous multibillion project is value for money.

Mark Furner (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

But what will you do with the report? What will Senator Joyce do with the report?

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

You want to know what we will do with the report? That is the question here. What will people do with the report? They will be a damned sight better informed than they are. They will be a hell of a lot better informed than they are now, because there will be an independent, expert, robust analysis of whether you guys are heading down the right track or whether you are just taking billions of dollars of Australian taxpayers’ money and throwing it up against the wall, when there could be far more affordable, effective means to deliver this outcome that you have not examined—options you have not looked at. Why have you not looked at these options? What are you afraid of?

In the end, a PC inquiry will produce a report, and do you know what? If that report is utterly damning of your National Broadband Network, do you know what you can do? You can ignore it. That is right; you can ignore it, because there is nothing binding about a PC report. Your government, and governments before it, have ignored PC reports before. It has been done many times before. So you could ignore its findings. But what we would do, what I would hope Senator Xenophon would do, what I would hope Senator Fielding would do, what I would hope the Australian Greens would do and what I would hope the entire Australian public with an interest in this topic would do is analyse the report and make a fair assessment of whether we are on the right track or whether this government, a government that has delivered failure after failure in so many policy areas to date, is simply now embarking on the greatest policy failure of all—the most expensive policy failure in its three years to date. That is the real risk. That is the risk that Australians have to bear.

We know, from the shabby 36-page business plan summary you released, that the taxpayer is up for $27.1 billion, $27.1 billion that it has to tip in for the building of this National Broadband Network—more than you originally said. So the taxpayer is up, already, for at least a billion dollars more than the figure stated in the implementation study and more than the figure stated by Senator Conroy when he first announced this proposal. At that stage, I remember that proposal as being a fifty-fifty split, where you had 50 per cent government equity and the other 50 per cent was going to come from private investors.

Whatever happened to the private investors, Senator Conroy, in your National Broadband Network? Because now we learn that anything required above that $27.1 billion is going to come from debt raising. So, from day one, the 100 per cent government owned NBN entity will no longer have private investors; it will go out into the marketplace and raise all of its debt. So every single dollar of the billions of dollars that will be spent building this network will come from debt, either from the government’s massive debt or NBN Co.’s debt, all of which comes back to the Australian taxpayer. That is why the opposition believes that we need a fair dinkum, robust analysis of the costs and benefits of this proposal and a fair dinkum, robust analysis of whether there is a better way to get the NBN built. We think the government is being utterly reckless in continuing to pursue this policy without any knowledge as to whether it is in fact the best policy to be pursued at all.

I note that Senator Xenophon uttered words previously in support of a Productivity Commission inquiry. He said that he believes there is real merit in the Productivity Commission being involved in the process. In considering this amendment I appeal to you, Senator Xenophon, and to all of the crossbenchers: you know this is the right thing to do; you know that there is no harm in the PC undertaking an inquiry. No harm whatsoever can come of this amendment. All it will do is better inform the debate by 31 May next year. It will not block or delay this bill, it will not block or delay the NBN and it will not even force the government to change track. All it will do is ensure that, if they are on the wrong track, pressure will come to bear on them to change their track. That is all it will do. It will better inform your decision making, it will better inform our decision making and, hopefully, it will better inform the government’s decision making.

I beg you to please consider this amendment as something that will not do any harm but provide a real good—a real good in terms of a thorough analysis of how we will get fast and affordable broadband services for the future. What you need to consider is whether the deals you have made with the government are actually worth compromising your positions on this PC inquiry. To Senator Xenophon in particular, I note the agreement you have struck with the government for the setting up of a joint standing committee. Regrettably, that joint standing committee does not take effect until 1 July next year. The PC’s involvement there is, regrettably, only to provide some advice and to inform that joint standing committee. That will not provide the type of analysis of whether or not this is the best way forward. It will not provide what we require for Australia to get the best outcome.

I am sure that, deep down, you know that, Senator Xenophon. You have managed to negotiate, from your perspective, reasonable outcomes with the government on all the other matters of concern. That is perfectly fair and reasonable, but on this matter you have not negotiated a reasonable outcome. The proposed joint standing committee will still end up being largely dominated by the government. It will not even start its work until 1 July next year. I note that my colleague Senator Fisher—with the cooperation of others, I trust—will be moving an amendment to the motion to adopt the committee’s report to ensure that at least the Senate Environment and Communications References Committee can get on with some work. But none of those things are substitutes for the Productivity Commission inquiry and for real robust work. On many other occasions, Senator Xenophon, you have paid great heed to the workings of the Productivity Commission and you have recognised the ability of Gary Banks and his team to provide fair, impartial and rational advice to governments, to the parliament and to the Australian community. That is all we are asking for them to do on this occasion.

To the Greens, to Senator Fielding, I make the same pitch: you really should consider whether, in voting against this amendment, you are simply voting against something that could further enhance what Australia gets at the end of the day. Voting for this amendment would not put you on side with the opposition in opposing the NBN; it would simply put you on side with the opposition in saying that we want to get the best outcome for Australia. And, if the best outcome is the government’s NBN, if that is what the Productivity Commission says, we will wear it. We will wear what the Productivity Commission says and, of course, we will wear the words that we have spoken arguing against the NBN to date.

But, if the Productivity Commission comes back with an alternative, you will wear it. You will wear it if the Productivity Commission comes back saying that there is a lower cost way. Senator Conroy believes there is absolutely no possible lower cost way that this can be done. Senator Conroy, you are the one who flipped from thinking, just a year or so ago, that 12 megabits per second was effective to thinking, now, that we need 100 megabits per second. You did that without any decent cost-benefit analysis, and, in the process, you have put billions of extra taxpayer dollars on the line.

So my plea to the chamber is: accept this amendment as a sensible way to provide a real analysis of where this government is going. This government is spending billions of dollars of taxpayer money. It is empowering a 100 per cent government owned entity to borrow billions of dollars of taxpayer money to roll a network up and down every street of Australia, including those that already have very fast broadband services. If we want to get value for money for Australians and we want fast, universal access to broadband, we should have the right policy approach, and we should test it. This amendment will allow the Australian community to test the government’s policy. (Time expired)

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

Due to the processes that the Senate has committed to, this may be my last chance to make a contribution in this debate before we put the bills, at 12 o’clock. I indicate that, while it would be possible to believe that the opposition were motivated by sound public policy, their track record indicates otherwise. Their $10 billion water package was apparently done on the back of an envelope. It had no cost-benefit analysis. It is a little hard to take seriously people who were involved in that process suddenly being the champions of a cost-benefit analysis by the Productivity Commission. I do not remember Senator Birmingham jumping up and down and demanding a cost-benefit analysis on that white elephant the Adelaide to Darwin railway. So it is a little hard to take the opposition seriously on those things. It is a little hard to take your cries on this issue seriously. The amendment is poorly drafted in many ways. I do not know how you define the ‘NBN proposal’. What is the ‘NBN project’? Is it different from the NBN proposal? This is a cheap political stunt at the end of a long discussion, and I do not believe the chamber will fall for it.

More importantly, as I said, this will probably be my last chance to talk in this debate, so I want to say a few things in summing up. This legislation will deliver historic reforms to the telecommunications sector. It will deliver cheaper prices and more choice and it will drive innovative services for Australians. Australia has, to its shame, the fifth most expensive broadband charges in the OECD. This bill will help to bring prices down by allowing greater competition in the sector.

The competition and consumer safeguards bill is a fundamental and historic microeconomic reform and is in Australia’s long-term national interest. This legislation paves the way for a more efficient rollout of the National Broadband Network. It delivers key reforms that allow for the structural separation of Telstra, which means the agreement between Telstra and the NBN Co. can be finalised. This bill does create a framework to deliver this important reform, but the bill also does much more than that. During the NBN rollout, the existing telecommunications regulatory regime will remain important for delivering better and more affordable services in the interests of Australian consumers and businesses. The reforms are designed to reshape regulation in the telecommunications sector in the interests of consumers. Also, small businesses and the economy will benefit enormously from the reforms we are voting on today. Specifically, the proposed reforms establish a framework for Telstra to progress its decision to structurally separate, including providing it with greater clarity around the undertaking process which will allow Telstra to seek approval from its shareholders on a firm proposal to migrate its fixed line customers to the National Broadband Network. They will streamline the competition regime to provide more certain and quicker outcomes for telecommunications companies, and they will strengthen the consumer safeguards to ensure service standards are maintained at a high level. Importantly, they are supported by the overwhelming majority of the industry. The delivery of the government’s reforms, in parallel with the rollout of the NBN across Australia, will finally deliver the affordable broadband services Australians need now and, importantly, into the future.

I want to thank a number of people who have participated in this debate—particularly Senator Ludlam and the Greens, Senator Fielding and Senator Xenophon—for their support in delivering this crucial bill, this crucial economic reform. It is disappointing. One of the proudest mantras of the opposition during the period of the Hawke-Keating government, and then when they became the Howard government, was that they were able to say, ‘You could never have made those economic reforms without us,’ because you supported them. The opposition put Australia’s national interest ahead of short-term political gains. But those opposite today are turning their backs on economic reforms that they know this country needs and will benefit from. Short-term politics has been put ahead of national economic reform, and it is a disappointing day. You had a proud record through the period of the Hawke-Keating government of supporting economic reforms that were in the national interest, and you know this bill is in the national interest. You know this bill is about improved outcomes for every single Australian and you have torched the record and the mantle of economic reformers by how you are going to vote on this bill—and you should be ashamed of yourselves. You cannot claim the mantle of economic reformers anymore, because of your opposition to this bill.

I particularly want to thank the Greens, Senator Fielding and Senator Xenophon for accepting and agreeing that this country needed to shake up telecommunications in this area. It is a bill that is in the interests of Australian consumers, and every day of delay in the 12 months we have had to put up with has been another day of higher prices, less choice and less innovation for consumers. The task of undertaking such difficult but necessary reform in an industry that is fundamental to Australia’s long-term national interests is one which this government embraces wholeheartedly and encourages the parliament to embrace.

But there have been many more people that have been involved behind the scenes that deserve recognition. I want to thank my department: Peter Harris, the head; Pip Spence; Daryl Quinlivan; and all of those who have been working on this and those who are here with me in the chamber today. They have spent many, many hours, night and day, to deliver this. I want to thank the ACCC, who have contributed enormously: Graeme Samuel, Ed Willett, Michael Cosgrave and their team. I want to thank the staff of Senator Ludlam, Senator Xenophon and Senator Fielding, who I know have worked many, many hours to make this bill a reality. I want to thank the organisations who have supported this cause for many, many years: ATUG, ACCAN and the Communications Alliance. I want to thank the staff at NBN and the NBN board, Harrison Young’s and Mike Quigley’s team, who have been fantastic in providing information and support and now have an enormous challenge.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern and Remote Australia) Share this | Link to this | Hansard source

And Mike Kaiser.

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

Yes, and Mike Kaiser. They have an enormous challenge before them now: to finalise the negotiations with Telstra and go forward.

I thank my colleagues Kevin Rudd and Julia Gillard, two prime ministers who backed me all the way in this venture. I thank Lindsay Tanner, who always believed, and Senator Penny Wong, who has taken on that mantle, and all of their staff who have worked on this bill over the years. I thank my close friend Wayne Swan, who has supported me at all times; the head of Treasury, Ken Henry, a believer who has always championed economic reform in this country; the head of Finance, David Tune; and the head of Prime Minister and Cabinet, Terry Moran. All have worked on this for endless hours. Finally and importantly, I thank my current and former staff, who have been absolute troopers in persevering in the face of enormous pressure—publicly and privately—to help deliver this reform today.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I know the clock is running. I know that Senator Ludlam wants to make a contribution on this, so I will have to be briefer than I would like to be to give respect to Senator Birmingham’s motion on this issue. I cannot support this amendment. I do believe the Productivity Commission has a role to play in this. The agreement reached with the Prime Minister allows for the Productivity Commission to give continual advice over an eight-year period to this committee about its implementation. Senator Birmingham, I think we will have to revisit this. This is a very tough amendment for me. I believe that, on balance, that is the best way to go forward. I think the government will confirm, if not in the next three minutes, issues of members being able to participate.

It is important to acknowledge that the Productivity Commission will have a valuable role in this whole process and one of monitoring. If the Productivity Commission merely provides a report, the risk is that it can be ignored, as Labor and Liberal governments have both ignored reports of the Productivity Commission. This is about implementation. This is about ensuring some ongoing accountability. The government knows and the opposition knows that, when the NBN bills come up in February and March, I have absolutely reserved my position on them. That is where I am at. We do need to split Telstra. We do need to have a structural separation, but the question of the NBN and that legislation is still up for grabs.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

In the remaining couple of minutes, I indicate that we will not be opposing this coalition amendment. In fact, the longer Senator Birmingham spoke about the need for the Productivity Commission to do a cost-benefit analysis the less I liked the proposal. We have no issue at all with the expertise of the Productivity Commission or what it would bring to the debate. It is the instrument itself of a cost-benefit analysis in the instance of a project such as the National Broadband Network that I think could be quite mischievously misused. There is nothing really wrong with the terms of reference that were proposed; it is what the opposition proposes to do with it. Professor Henry Ergas has done a cost-benefit analysis. The numbers are in. The benefits are $17 billion. That is the magic number they have come up with. So I am not surely exactly what it is that you would be pursuing.

I thank in particular Adam Stone, who has ridden shotgun with me on this bill over a very long time. This is an exceptionally important reform. The Australian Greens would be supporting these reforms to the telecommunications industry. The former government did not have the guts to stand up to the structural asymmetries that they had built in as a result of the privatisation of Telstra. I congratulate this Minister for Broadband, Communications and the Digital Economy, Senator Conroy, for at least stepping up and attempting to do what has been long overdue and has been in the workings probably for nearly two decades now. We also reserve our position on the substantive NBN bills that will be brought into this chamber post the review by the Senate committee and we very much look forward to having that debate.

At least this government is attempting to do something. There was not a word from the coalition all the way through this proposal as to exactly what its broadband policy is. The spectacle of the coalition, and the National Party in particular, opposing a broadband rollout into regional areas I still find utterly incomprehensible. So we look forward to this debate proceeding. Again, I would like to thank my staff and the folk who have looked after us through the long hours of this debate and I very much look forward to the passage of this bill.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Today is an historic day, and history will show the Liberal and National parties were on the wrong side of this debate.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Order! The time allotted for consideration of the committee stage of this bill has expired.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I seek leave to move a motion that would enable the consideration of the committee stage of the debate to be extended until 4 pm today.

Leave not granted.

I move:

That so much of standing orders be suspended as would prevent me from moving that debate on the consideration of the committee stage of the bill be extended until 4 pm today.

This is, as the opposition has maintained throughout this debate, the most important decision in relation to infrastructure, in relation to the expenditure of public money, that this parliament has ever considered. Let me say that again: the commitment of $42 billion of taxpayers’ money, at a minimum, at the lowest estimate of that expenditure, by this parliament is not something that should be rushed. And yet here, on the last sitting day of the year, the government is trying to guillotine consideration of the matter through the parliament.

Let me remind honourable senators what has happened in the course of this debate. Yesterday morning the opposition spent two hours trying to extend the time available for this debate, beyond the end of today and for all day Saturday. Had we succeeded in doing so—

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Sterle interjecting—

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Order! Senator Sterle, you are not in your seat! You will remain silent.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Thank you, Mr Chairman. Had we succeeded in doing so, had we not been frustrated by a government that hides from public scrutiny and parliamentary review, then the time for this debate would have been extended by another 10 hours and the consideration of the committee stage of the debate would have been able to proceed, and proper and due consideration by this chamber of this legislation would have been allowed to happen.

But instead, what did we see? We saw a stunt in the course of which the government first of all tried to get rid of question time. Then, shamed out of that, they put forward a revised motion which reinstated question time but nevertheless constrained the consideration by the parliament, by the Senate, of this legislation. The Senate has now embarked on the consideration of the last of the amendments, which from the point of view of the opposition is the most important of the amendments—that is, the reference of this project to the Productivity Commission. So far we have heard from one opposition senator on this motion: the shadow spokesman, Senator Birmingham. How can anyone maintain that there has been proper scrutiny by this chamber of this legislation if the principal opposition amendment has not even had the opportunity to be discussed? And yet, as a result of the government moving this guillotine, unless the motion which I have sought leave to move were to be passed, there will be no significant discussion in this chamber of our proposal to refer to the Productivity Commission the expenditure of $43 billion of public money.

Now I know to those opposite the expenditure of public money does not matter at all. They are, after all, the party which in government drove Australia into the greatest level of peacetime debt we have ever suffered in our history. They are a government which fecklessly and flippantly proposes to commit at least $43 billion of public money to an untested, untried scheme; has serially sought to conceal from the parliament the business case that underlies the NBN Co.; has sought to conceal from the parliament the review of the business case insisted on by the minister for finance, Senator Wong; has sought to conceal from the parliament scrutiny of the rollout of the NBN Co. by withdrawing it from the supervision and jurisdiction of the parliamentary Public Works Committee; and has sought to close down debate in this very parliament so that the attempt by the opposition to have a cost-benefit analysis made by the Productivity Commission cannot happen.

Why on earth would anyone think that the expenditure of an unexampled amount of money by an Australian government should not have the benefit of a cost-benefit analysis? How could anybody seriously maintain that, before the parliament is asked to approve this expenditure, as we would be doing by voting on this bill now, the taxpayer is not entitled to be satisfied from a technical point of view and from that point of view of parliamentary scrutiny that there had been a full discussion? But, if the motion, which I sought leave to move, is frustrated, as I expect it will be by this government, the Australian people will know that they were committed to a generation of debt by this Labor government and the parliament was denied the opportunity of properly discussing the matter.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

What we have heard today is another process device by the opposition to frustrate debate that has occurred on this bill. The opposition denied the ability for the committee stage to sit on Wednesday night for a number of hours. They did not want to sit on Wednesday night. Why? Maybe you could ask the opposition why. Maybe they had other engagements.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Marshall interjecting—

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Order! Senator Marshall, your colleague is trying to make a point. There is no point in shouting across the chamber. I remind senators on my left as well that there should be no shouting across the chamber.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There was ample opportunity, as I indicated, on Wednesday night to deal with the substantive matters in committee. The opposition refused point-blank to engage in it. In addition to that, not only did they refuse point-blank to deal with it; they then used every procedural device they could think of—and, quite frankly, that was not all of them but every one that they could think of—to ensure that they could not get to the substantive element of the debate, that is, the committee stage. They think that they have not had an opportunity. They had an opportunity on Wednesday. They did not want it. They wanted to spend all their time on procedures. On Thursday, when they had another opportunity to start again and deal with the committee stage of the bill, they did not want to do that. They wanted to spend all their time on process, on procedural devices to ensure that they did not have the ability to engage in the debate. They did not want to engage in the debate. They wanted to ensure that they did not get an opportunity to get into the committee stage. Why? Because they wanted to deal with procedural matters, the process. This is an opposition that is stuck in process.

In addition to that, they then had an opportunity to continue in committee, which they did not want to adopt. What we now have, as I have indicated, is another procedural device—just another one. If they had ensured that they used their time effectively during the committee stage of the debate, they would have had more than three hours; they would have had up to five hours of additional debate in committee. But, no—they spent 2½ to three hours on not wanting to debate the bill in committee. It is up to the opposition to come up with a reason for why they did not want to debate in committee. Now they cry crocodile tears that they did not get to speak. They had not only Wednesday night; they had two hours of procedural matters, when they could have said, ‘No, thank you. We understand the debate,’ as has been done in this parliament before, when you can collapse a procedural debate to ensure that there is sufficient time to deal with these things. But, no, they wanted to continue to do that.

We say we need to get on with this bill. The device, the management, was put in place yesterday. It was agreed to by a majority of the Senate. What we now have is an opposition that does not want to abide by the majority will of the Senate. They want to continue to wreck not only the Senate’s procedures but also this bill. This government is pursuing this bill. It is a bill that is vital for this government to pass this week, and we intend to do so. I move:

That the question be now put.

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

On a point of order, Mr Chairman: the minister cannot put the question.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

A minister is allowed to speak to the motion and then to move that the motion be put. The question is that the motion moved by Senator Ludwig be agreed to.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The question now is that the motion moved by Senator Brandis be agreed to.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The time allotted for consideration of the committee stage of this bill has expired. The question now is that the amendments on sheet 7012 circulated by the opposition be agreed to.

Question put.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

It being past 12 noon on Friday, 26 November 2010, the time for the consideration of the remaining stages of the bill has expired.

Bill reported with amendments.