Tuesday, 16 November 2010
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010
Consideration in Detail
Briefly and firstly, on the matter of procedural fairness and binding rules of conduct the minister says these rules would only be binding for a year. That is an age in the commercial world, particularly in the telecommunications sector. The section that we are seeking to remove from 152BD(6) is that which provides that the commission is not required to observe any requirements of procedural fairness. All that the requirements of procedural fairness meant was that they had to give the party against whom the order was being made—almost certainly Telstra—advance notice. What the minister wants to be able to do is to put in place rules with a lifetime of 12 months on an entirely ex-parte basis. That is a remarkable measure.
As far as the merits reviews are concerned, I explained earlier why we believe they are appropriate given the change to the more prescriptive way in which access determinations are being made. But just in terms of delay, I again point the House to the time limits in the amendments and also to proposed subsection (5) of our proposed 152BCY, which states:
… the Tribunal may have regard only—
for the purposes of review—
(a) any information given, documents produced or evidence given to the Commission in connection with the making of the access determination; …
It is like a review on the papers from the commission. So there is not the opportunity to introduce a raft of new evidence or new issues. It is very circumscribed. It is going to be done in a timely fashion. It is fine for the minister to say that people exercising their right to review a statutory body’s decision or to have the benefit of procedural fairness is just clogging things up with bureaucratic red tape—and, of course, he described accountability to parliament as just playing politics. This is the classic voice, the unfiltered voice, of the all-powerful executive—hardly a new paradigm. We are a democracy. Governments should be accountable to parliaments. Statutory bodies, particularly agencies like the ACCC, are enormously powerful and it is important to have the ability to review their decisions. These proposals that we have made strike a fair balance between an elaborate system of lengthy reviews, without time limits and with a scope to introduce new material, and something that is circumscribed, tailored, trimmed both in terms of scope and time that will enable the decisions of the ACCC in this regard to be accountable, just as we seek to have the decisions of the government accountable in this House.