Friday, 26 November 2010
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010
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 reviews are strongly outweighed by the delays, the regulatory uncertainty and the outright gaming that have occurred.
The coalition is also proposing to make new provisions for merits review, access determinations 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, access seekers, other industry participants and telecommunications users. 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, and—this is important for the Senate in considering this opposition amendment—paragraph 4.53 of the guidelines states that decisions which involve extensive public inquiries or consultations are not suitable for merits review. Access determinations fall into this category.
In 2002, the government of the day—I think that those opposite may have been involved in that!—abolished merits review for ACCC arbitration determinations because merits review was hindering the development of competition.