Helen Coonan (NSW, Liberal Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I rise to make a few comments about the Trade Practices Amendment (Access Declarations) Bill 2008. The opposition are supporting the bill; it is a very effective and important bill which will clarify that access declarations and extension notices which extend the period of access declarations are not legislative instruments for the purposes of the Legislative Instruments Act 2003. It is a very technical amendment with some very practical implications for the industry. I have to say—seeing as it is an amendment to the Trade Practices Act—that enabling a competitive market structure has of course been a key focus of the coalition over the years. As part of that, of course, we introduced telecommunications specific sections into the Trade Practices Act and underpinned the introduction of the open access regime by opening up exchanges and the customer access network to full competition. I note that a couple of days ago the High Court in fact said that it was a legal and effective regime.

Consumers have been the real beneficiaries of competition through falling prices, with fixed line prices falling by almost 19 per cent and mobile service prices falling by a whopping 36 per cent. I do not think anyone would seriously argue how important competition is. It is a market, however, of continuous evolution, and services innovate at an exponential rate. With technology evolving so quickly there are always new challenges being faced by government. As I have said before, communications policy is never a ‘set and forget’ exercise. That is why we introduced a comprehensive broadband plan that would provide fast internet to 100 per cent of the population using a mix of technologies to be available by mid-2009.

This is in contrast to the Labor government’s muddled approach to broadband, with the extraordinary displays of incompetence by the current Minister for Broadband, Communications and the Digital Economy, Senator Conroy. Having made much of Labor’s so-called broadband revolution, the rollout of the new fibre network was supposed to be a new direction for the industry and for the country. Senator Conroy had grandly promised voters that within just six months of gaining office work would begin on the hook-up of 98 per cent of Australians to high-speed broadband. It is diverting, to say the least, that commentators have not failed to notice that this commitment has slipped and it is already a broken election promise. As Malcolm Farr observed in the Sunday Telegraph recently:

... this race to the digital future has had a sluggish start more suited to the steam age.

It is obvious for all to see that steam age Senator Conroy—steam age Steve—is hopelessly out of his depth in understanding the myriad complex issues that he must face in this new network build. To begin with, Labor’s plan is mired in uncertainty as to what type of rollout it will be—fibre to the node or fibre to the home—who will build it, how access will be provided, how the access price will be determined, how long the build will take and how far it will reach. Added to these uncomprehended questions by the minister, the important point is that no-one yet knows how the government will use the $4.7 billion of taxpayers’ money slated for investment. It is true that $4.7 billion might get Senator Conroy’s network to Wollongong but not much past 75 per cent of the population. How regional Australia is to get some share of any benefit of this vast taxpayer spend is a quandary, and Senator Conroy seems unable to address it.

Typically, Labor has reached out to an expert task force to provide some answers. When it comes to a new network build I do not criticise the place of an expert task force to examine all the barriers to the build and to provide recommendations to government. Indeed, I did it myself. What I do criticise, however, is that Labor inherited a perfectly well formed expert task force that had been set up under the Howard government to oversee a new fibre network build. In his bumbling, stumbling way Senator Conroy disbanded this expert task force but retained a similar membership with essentially the same task, wasting months in the process. This is clearly a minister who is dithering and wasting time while the rest of the world is moving on to a digital future. It is not an auspicious beginning to the handling of a complex portfolio, and we can only hope in the interests of our own digital futures that someone in the Rudd government, perhaps Mr Lindsay Tanner, who, it seems, is taking some supervisory role over Senator Conroy, will come to the rescue of this increasingly desperate looking and nervous sounding minister.

Andrew Murray (WA, Australian Democrats) Share this | Link to 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.

Ursula Stephens (NSW, Australian Labor Party, Parliamentary Secretary Assisting the Prime Minister for Social Inclusion) Share this | Link to this | Hansard source

In summing up the debate today, I appreciate Senator Murray’s very concise summation of the intent of the Trade Practices Amendment (Access Declarations) Bill 2008, because from Senator Coonan’s contribution we were not too sure just what it was all about.

Two points that are important in Senator Murray’s contribution were the issue about retrospectivity, restoring the original intent of the legislation, and that we are debating this trade practices amendment bill after having just finished with the Therapeutic Goods Amendment (Poisons Standard) Bill 2008 which was also affected by the same Federal Court decision of Roche Products Pty Ltd v the National Drugs and Poisons Schedule Committee, and indicates the broader impact on a range of competitive markets that a Federal Court decision can make. On the basis of the generous support for this non-controversial legislation I commend the bill to the Senate.

Question agreed to.

Bill read a second time.