Thursday, 25 November 2010
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010
Under the Legislative Instruments Act 2003 there are three key requirements that apply to legislative instruments: they are subject to parliamentary disallowance, they are published on the Federal Register of Legislative Instruments to ensure their availability to the public and industry and they are subject to sunsetting after 10 years. Sunsetting is not of relevance here as each of the instruments in question will cease to have effect before the 10-year period provided for. For most of the instruments in question, there is a requirement for publication on the department’s website, meaning publication on the register is not necessary. In each case, there are sound reasons for not making these instruments subject to parliamentary disallowance.
The government’s strong view is that these instruments should not be disallowable, as the risk of disallowance would cause uncertainty for Telstra to progress its decision to structurally separate. For example, in amendment 18 and under proposed section 577A (9) Telstra is not entitled to give a structural separation undertaking to the ACCC unless an instrument under proposed section 577A (7) is in force. If this instrument was subject to parliamentary disallowance and as a consequence the instrument was disallowed by the parliament, Telstra would not be permitted to lodge a structural separation undertaking. This has the effect that under the arrangements set out in the bill Telstra would be required to implement functional separation even though Telstra may wish to proceed with structural separation, which is clearly a preferable outcome.