Friday, 26 November 2010
Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010
I move Australian Greens amendment (R19) on sheet 7020:
(R19) Schedule 1, item 160, page 144 (after line 12), at the end of Division 4B, add:
(1) This section applies if an access agreement is inconsistent with any:
(a) access determination; or
(b) binding rule of conduct; or
(c) special access undertaking;
which comes into force on a date after the access agreement was made.
(2) Either party to the access agreement may notify the other party that it wishes to cancel the access agreement.
(3) The access agreement ceases to apply at the time a notification under subsection (2) is given.
Our amendment (R19) creates a form of no-disadvantage test to apply in the long transition period between the passage of the bill and the full migration of all of Telstra’s traffic across to NBN Co. Senators would be aware that this amendment is quite different to the original one. As a result of discussions over the past couple of days, we have revised it. We have circulated a revision on sheet 7020, which effectively balances things a little bit. We recognise that in the short term access seekers may need to secure access agreements in the absence of a special access undertaking, a binding rule of conduct or on an access determination which could place them at a disadvantage. And if such instruments come into force at a later time, we believe that access seekers should be able to effectively roll back to the safety net of such a determination.
It does no more really than acknowledge that there is a significant asymmetry in market power between Telstra and access seekers and that providing this kind of safety net is an appropriate safeguard to provide. We were persuaded that the early form of the Australian Greens amendment effectively would have allowed the access seekers to cherry pick the best bits out of the contracts that they had signed, and therefore we have balanced this up a little bit. Now it reads so that either party to the access agreement can notify the other that it wishes to cancel the agreement. Having this clause in there will probably guide the discretion of parties to these agreements when they are being signed in the first place. That right would not just apply to the access seeker; it could just as easily apply to Telstra. We feel that some of the critique of the first version of the amendment was probably justified and I hope that the government will at least support this one, where we have effectively made the playing field level for all parties to these agreements.