Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Trade Practices Amendment (Access Declarations) Bill 2008 amends part XIC of the Trade Practices Act 1974 to make it clear that access declarations and notices intended to extend the period of access declarations are not legislative instruments for the purpose of the Legislative Instruments Act 2003. The bill also has retrospective effect. This bill only impacts on part XIC of the Trade Practices Act relating to telecommunications access. It does not affect part IIIA and access regimes, such as those which impact on rail access.

The objective of the bill is stated as being ‘to provide certainty to the telecommunications sector’ by providing that access declarations and extensions of periods of access are not legislative instruments. Necessarily, the bill has retrospective effect—it provides that declarations and extensions of periods of access dating from before the commencement of the bill should also be deemed not to have been legislative instruments. Although the Australian Democrats as a rule do not support retrospectivity in the application of legislation, in this case the Trade Practices Amendment (Access Declarations) Bill 2008 restores and clarifies the law to reflect its original intention. This bill is necessary to give certainty to the large and volatile telecommunications sector, particularly given the importance of telecommunications to the Australian economy, productivity and infrastructure.

The necessity for this legislation has arisen from a decision of the Federal Court in relation to a weight loss drug called Xenical. Roche Products Pty Ltd, the manufacturer of the drug, challenged a decision of the National Drugs and Poisons Schedule Committee withdrawing the committee’s consent for direct advertising to consumers of the drug. As a preliminary matter the Federal Court considered whether the decision of the National Drugs and Poisons Schedule Committee was legislative or administrative in character.

In their decision brought down in late 2007 the court found that the decision of the National Drugs and Poisons Schedule Committee was legislative in character rather than administrative. This was justified by looking at what the decision does rather than what it is called. The decision of the court impacts only on part XIC of the Trade Practices Act and that part of the Trade Practices Act sets out an access regime for the telecommunications industry. The regime provides for the declaration of carriage services and related services by the Australian Competition and Consumer Commission after a public inquiry in accordance with section 505 of the Telecommunications Act 1997.

There are a number of access declarations in force at the moment including the high-frequency unconditioned local loop service and the domestic digital mobile terminating access service. The ACCC has declared these services on the basis that they are not legislative instruments and therefore are not required to be registered.

Following the Roche Products case, there was concern that access declarations which were made by the ACCC under part XIC of the Trade Practices Act were legislative in character and so fell within the definition of a legislative instrument in the Legislative Instruments Act. If that was so, then the failure to record access declarations on the register may have had the unintended consequence that they would be or are unenforceable. Thus any legal action to, say, impose access obligations on carriers or providers on the basis of an existing part XIC declaration could potentially be blocked or overturned by a court. If that were to occur the existing telecommunications access regime would be rendered inoperative.

As soon as the Roche court case ruling came through, Telstra was apparently setting up to challenge all the ACCC access declarations. This bill does not prevent Telstra challenging ACCC access decisions; it just prevents Telstra from challenging access rulings on these particular technical grounds. Without this bill, Telstra could challenge each of those access service declarations and say that they are invalid because they are not on the register, so causing significant delays and uncertainty while the matter was concluded in the courts. In my view that would have an anticompetitive effect.

A decision in Telstra’s favour would have the impact of effectively dismantling the current competitive telecommunications industry structure in Australia. It would also ensure that Australia then would continue to trail the world in high-speed broadband while the mess was sorted out. As the Australian Democrats made clear at the last election, a failure to invest in broadband and to advance the broadband policy of the government will put Australia’s social capacity, economic growth, e-commerce growth and future competitiveness at risk.

We think this bill makes a small contribution to advancing the cause of a better broadband and telecommunications network, and therefore the Australian Democrats support the bill.