Tuesday, 16 November 2010
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010
Consideration in Detail
You wished you had the Telstra account—okay. As I was saying, there has been a great deal of criticism over the years of Telstra using lawyers to challenge access decisions made by the ACCC. The mechanism that was used has been summarised as being ‘negotiate, arbitrate’. That has been replaced now with a more prescriptive approach known as ‘set and forget’. We support those changes. However, it is important not to completely loose sight of issues of justice and fairness and to remember that it is one thing to say that a corporation is using lawyers to gain decisions, that is fine to use that description; but, if to remedy that, you take away that corporation’s rights—in other words, if you literally throw the fairness, natural justice baby out with the bathwater—you end up with an extraordinary situation where the ACCC becomes literally beyond review.
So this is a question of getting the balance right, and we believe the government has gone too far in eliminating procedural fairness and in not allowing a merits review of access determinations by the tribunal. 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 hitherto.
One of the criticisms that have been made is that a review could delay things. Often people dislike litigants using appeal rights. It is a bit like the minister talking about debate in this chamber getting in the way of the orderly business of government. That is part of what we pay for in democracy and the rule of law. But I would draw honourable members’ attention to the provisions of the new sections that we are proposing on pages 6 and 7 of the amendment. You can see that there are very strict time frames put in place. The application must be made within 21 days after the commission makes the determination. The tribunal has to make a decision promptly and the action date in relation to a review means 90 days after the tribunal receives the application for review. So it can set a later date naturally, but there is a clear statutory direction there for this to be dealt with promptly. So the argument that this is going to hold things up or frustrate the objects of the act is simply not correct. This will get the balance right. We do not want to have lengthy proceedings that delay access determinations; but on the other hand we cannot throw procedural fairness and natural justice out. And, of course, this recognises that just occasionally the ACCC might make a mistake, and it is important for there to be an ability to review it.