House debates
Thursday, 24 June 2010
Trade Practices Amendment (Infrastructure Access) Bill 2009
Consideration of Senate Message
Bill returned from the Senate with amendments.
Ordered that the amendments be considered immediately.
Senate’s amendments—
(1) Schedule 1, item 7, page 6 (line 20) to page 7 (line 11), omit the item.
(2) Schedule 1, item 11, page 7 (line 29), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(3) Schedule 1, item 13, page 8 (line 23), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(4) Schedule 1, item 34, page 15 (line 5), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(5) Schedule 1, item 42, page 18 (line 18), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(6) Schedule 1, item 44, page 18 (lines 24 to 26), omit the item.
(7) Schedule 1, item 46, page 19 (line 14), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(8) Schedule 1, item 51, page 22 (line 12), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(9) Schedule 1, item 53, page 22 (lines 15 to 17), omit the item.
(10) Schedule 1, item 55, page 23 (line 3), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(11) Schedule 1, item 66, page 27 (line 17), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(12) Schedule 1, item 68, page 27 (lines 24 and 25), omit “the power to request information under subsection 44ZZBCA(1) and”.
(13) Schedule 1, item 70, page 28 (line 12) to page 30 (line 29), omit section 44ZZOAA, substitute:
44ZZOAAA Information to be given to Tribunal
Tribunal to notify decision maker
(1) If an application for review of a decision (however described) is made under this Part, the Tribunal must notify the decision maker of the application.
(2) If the application is made under section 44K, 44L, 44LJ, 44LK or 44O, the Tribunal must also notify the Council of the application.
Decision maker to give material to Tribunal
(3) The decision maker must give the following information to the Tribunal within the period specified by the Tribunal:
(a) if the decision is taken to have been made because of the operation of subsection 44H(9), 44J(7), 44LG(6), 44LI(7), 44N(4) or 44NB(3A)—all of the information that the Council took into account in connection with making the recommendation to which the decision under review relates;
(b) if the decision is taken to have been made because of the operation of subsection 44PD(6), 44XA(6) or 44ZZBC(6)—any information or documents given to the Commission in connection with the decision to which the review relates, other than information or documents in relation to which the Commission could not have regard because of subparagraph 44PE(6)(c)(iii) or 44ZZBD(6)(c)(iii);
(c) otherwise—all of the information that the decision maker took into account in connection with the making of the decision to which the review relates.
Tribunal may request further information
(4) The Tribunal may request such information that the Tribunal considers reasonable and appropriate for the purposes of making its decision on a review under this Part.
(5) A request under subsection (4) must be made by written notice given to a person specifying the information requested and the period within which the information must be given to the Tribunal.
(6) The Tribunal must:
(a) give a copy of the notice to:
(i) the person who applied for review; and
(ii) if the application is made under section 44K, 44L, 44LJ, 44LK or 44O—the Council; and
(iii) if the application is made under section 44PG, 44PH, 44ZP, 44ZX or 44ZZBF—the Commission; and
(iv) any other person who has been made a party to the proceedings for review by the Tribunal; and
(b) publish, by electronic or other means, the notice.
(7) Without limiting the information that may be given in accordance with the notice, information may include information that could not have reasonably been made available to the decision maker at the time the decision under review was made.
Certain material before the Tribunal not to be disclosed
(8) The Tribunal may, on the application of a person, prohibit or restrict the disclosure of the contents of a document or other information given to the Tribunal under this section if the Tribunal is satisfied that it is desirable to do so because of the confidential nature of the document or other information, or for any other reason.
(9) In this section:
decision maker, in relation to an application for review under this Part, means:
(a) if the application was made under section 44K, 44L, 44LJ or 44LK—the designated Minister; or
(b) if the application was made under section 44O—the Commonwealth Minister; or
(c) if the application was made under section 44PG, 44PH, 44ZP, 44ZX, or 44ZZBF—the Commission.
44ZZOAA Tribunal only to consider particular material
For the purposes of a review under this Part, the Tribunal:
(a) subject to paragraph (b), must have regard to:
(i) information that was given to the Tribunal under subsection 44ZZOAAA(3); and
(ii) any information given to the Tribunal in accordance with a notice given under subsection 44ZZOAAA(5); and
(iii) any thing done as mentioned in subsection 44K(6), 44L(5), 44LJ(5), 44LK(5), 44O(5), 44PG(5), 44PH(5), 44ZP(5), 44ZX(5) or 44ZZBF(5); and
(iv) any information or report given to the Tribunal in relation to the review under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) within the specified period; and
(b) may disregard:
(i) any information given to the Tribunal in response to a notice given under subsection 44ZZOAAA(5) after the period specified in the notice has ended; and
(ii) any information or report of the kind specified in a notice under subsection 44K(6A), 44L(5A), 44LJ(6), 44LK(6), 44O(5A), 44PG(5A), 44PH(5A), 44ZP(5A), 44ZX(5A) or 44ZZBF(5A) that is given to the Tribunal after the specified period has ended.
(14) Schedule 1, item 71, page 31 (table item 2), omit “44ZZOAA(4)”, substitute “44ZZOAAA(5)”.
(15) Schedule 1, item 72, page 34 (lines 6 to 8), omit the item.
(16) Schedule 1, item 72, page 34 (line 13), omit “44,”.
(17) Schedule 1, item 72, page 34 (line 13), omit “53,”.
(18) Schedule 2, item 7, page 47 (lines 16 and 17), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
(19) Schedule 2, item 7, page 49 (lines 2 and 3), omit “subsection 44ZZOAA(7)”, substitute “section 44ZZOAA”.
1:58 pm
Richard Marles (Corio, Australian Labor Party, Parliamentary Secretary for Innovation and Industry) Share this | Link to this | Hansard source
I move:
That the amendments be agreed to.
There are amendments here in relation to limited merits review. These amendments vary the scope of the limited merits review arrangements that the Trade Practices Amendment (Infrastructure Access) Bill 2009 is to introduce. The bill provides that, when reviewing decisions made under the National Access Regime, the Australian Competition Tribunal would have regard only to the information that was before the original decision maker as well as any further information the tribunal sought to clarify the original information. These amendments would expand the information available to the tribunal during merits review to include any information the tribunal considers reasonable and appropriate for the purposes of making its decision. Importantly, this may include information that could not reasonably have been made available to parties or to the original decision maker at the time of the original decision. This exception is consistent with the Council of Australian Governments’ 2006 Competition and Infrastructure Reform Agreement.
The amendments retain the notice mechanism previously contained in the bill whereby the tribunal would issue a notice to parties when seeking additional information. This is necessary because the notice acts as a clock-stopper to ensure that seeking the information does not unduly encroach on the time available to the tribunal to make its decision. However, nothing in the bill or the amendments seeks to alter the standard procedures of the tribunal. Typically the tribunal holds preliminary hearings with all parties present to consider the issues before it. It is envisaged the parties would be free to draw to the tribunal’s attention any additional information that the tribunal may wish to seek by issuing a written notice. These amendments are designed to ensure that the tribunal has sufficient information before it to assist in making accurate and timely decisions.
As for the amendment in relation to deemed decisions, this amendment is to remove the measure in the bill relating to deemed decisions. Previously the bill would have provided that, should the designated minister not make a decision in a declaration matter within the prescribed 60-day period, he or she should would be deemed to have decided to accept the recommendation of the National Competition Council.
2:00 pm
Bruce Billson (Dunkley, Liberal Party, Shadow Minister for Small Business, Deregulation, Competition Policy and Sustainable Cities) Share this | Link to this | Hansard source
Just quickly on this important day, I add, on the two points about the notification process and constraints on the tribunal, that we accept the government’s assurance that they will keep an eye on those factors and that we support the amended bill.
Question agreed to.