Tuesday, 16 November 2010
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010
Consideration in Detail
The government will be opposing these amendments, the latest series of amendments in the wrecking strategy of the opposition to the National Broadband Network. There are two lots of amendments here. The first is a proposition from the coalition to 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 would severely compromise the effectiveness of those binding rules of conduct. 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 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 process.
The previous amendments moved by the member for Wentworth were all about giving the ACCC more power and influence; now this lot of amendments is about undermining the ability of the ACCC. It is an extraordinary position taken by those opposite. It is inconsistent. It is only, in fact, consistent with their approach to wreck the National Broadband Network.
The second lot of amendments is about merits review of ACCC decisions under part 11C of the act. 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 review are strongly outweighed by the delays, the regulatory uncertainty and the outright gaming that has occurred. The coalition is also proposing to make new provisions for merits review for access determination 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, other industry participants and consumers. 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. Paragraph 4.53 of the guidelines states that decisions which involve extensive public inquiries or consultations are not suitable for merits review.
Access determinations clearly fall into this category. In 2002 the then government abolished merits review for ACCC arbitration determinations because merits review was hindering the development of competition. So you have in 2002 the Howard government abolishing merits review, on the sound basis that it was hindering the development of competition, and yet the opposition now wants to reintroduce merits review, a move which would again 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 an access determination or make a new access determination within 30 days of making binding rules of conduct. (Extension of time granted) In other words, before any merits review of binding rules of conduct could be considered, let alone take effect, the ACCC would have already started the public inquiry process to make changes to the relevant access determination.
The effect of the coalition’s amendments would be to waste the resources of the Australian Competition Tribunal, the ACCC and the telecommunications industry on a meaningless exercise in red tape. The fact is that these amendments should be rejected and the legislation should be carried by this House unamended, which would be a major reform to deliver the National Broadband Network. Structural separation has been spoken about for a long time. We are actually delivering it through this legislation. The amendments put forward by the opposition do not merit the support of this House, which is why they should be rejected.