Senate debates

Thursday, 25 November 2010

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010

In Committee

Consideration resumed.

7:41 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

Madam Chair, I am going to do something quite radical: I am going to talk for less than two minutes and I will be speaking directly to the opposition’s amendment. I do not support the opposition’s amendment. I believe there are sufficient safeguards in the government’s legislation to allow any decision made by the minister to be a disallowable instrument. It is important that you have a series of penalties, a combination of carrots and sticks if you like. The carrot is the $11 billion or so that Telstra will receive if it structurally separates, but you need to have some sticks there to ensure compliance and to give the minister that discretion. The fact that it is a disallowable instrument has a requisite level of accountability for this parliament to scrutinise any decision made by the minister. It is an improvement on the earlier version of the bill. Therefore, I will continue to support the government’s position on this, not the opposition’s—and I have done it in less than two minutes.

Photo of Sue BoyceSue Boyce (Queensland, Liberal Party) Share this | | Hansard source

The question is that the various amendments in schedule 1—being opposition amendments (1), (5), (6), (8), (9), (11), (12), (14), (15), (17), (24), (34), (36)-(40), (45)-(57), (64) and (65)—on sheet 7004 be agreed to.

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

The question now is that the following items in schedule 1 stand as printed: items 1 to 6, items 11 to 15, item 18, item 21, item 24, item 25, items 28 and 29, divisions 3, 4 and 6 in item 30, and part 10 in item 31.

Question put.

7:54 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I seek leave in relation to schedule 1, item 30, and after item 64, that I move amendments (1) to (3) standing in my name.

Leave granted.

I move amendments (1) to (3) on sheet 7005 revised standing in my name:

(1)    Schedule 1, item 30, page 10 (line 20), omit the heading to subsection 577A(2), substitute:

Transparency and equivalence

(2)    Schedule 1, item 30, page 10 (line 21), after “relating to”, insert “transparency and”.

(3)    Schedule 1, item 30, page 10 (line 32), after “provides for”, insert “transparency and”.

These amendments insert the term ‘transparency’ into the ACCC’s consideration of whether or not to accept a structural separation undertaking. This is essentially about the concept of equivalence, and in terms of wholesalers having access to the services. Essentially, by inserting the concept of transparency it will allow for a more forensic examination of issues in relation to the concept of equivalence. It will allow for a greater level of scrutiny, which I believe would be relevant in terms of giving protection to consumers. The three amendments are related to that.

It is important to have this additional level of scrutiny, in a sense, by incorporating the concept of transparency. That is why I urge my colleagues to support this amendment. These amendments are practical and sensible. They are amendments that would work and I believe would not cause difficulty to the ACCC in the sense that they would fit in well with the current statutory scheme.

I also want to say that I am grateful for the advice I have been receiving from Associate Professor Frank Zumbo from the University of New South Wales, who is a long-time champion of competition issues. I figure he cannot be too bad, because he seems to annoy whoever is in government, whether it is a Liberal or Labor government. So he must be doing something right. I am grateful for his advice on these and other issues. This would advance the bill in terms of strengthening provisions that I think would assist consumers when it comes to determining a structural separation undertaking.

7:57 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

I thank Senator Xenophon for moving these amendments. The opposition’s position is fairly clear in this space. We have further amendments listed on the running sheet and we look forward to their being debated. Those amendments go very much to maintaining the current integrity of the ACCC in their current processes and to ensuring that the Competition and Consumer Act processes, as they exist, are upheld in relation to this deal.

However, we recognise that, as a consequence of certain arrangements and agreements that have been made in this chamber between different members, it is unlikely that our amendments will succeed. We will put them vigorously when the time comes but we are pragmatists and we think that Senator Xenophon’s amendments, which have been moved with some variation following discussions with the opposition, are a useful improvement on what the government had originally provided. As a consequence of that the coalition will be supporting Senator Xenophon’s amendments as he has moved in the different groupings he has indicated.

We believe it is important that there be decent ACCC analysis of the deal with Telstra. We think that is important and we think that the government is being negligent in the approach they have taken in that regard. Senator Xenophon’s amendments will at least ensure that there is some level of transparency to the type of analysis that could be undertaken. We welcome that, and we think that that will be a positive step forward. We will be supporting his amendments, and we hope that in the meantime he will reconsider his position on our amendments, which would uphold the entire processes of the Competition and Consumer Act with regard to ACCC inquiry.

8:00 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The government supports these amendments. Amendments (1) to (3) make it clear that the structural separation undertaking must provide for transparency in the equivalence arrangements that are to apply during the period that Telstra is engaging in the process of structural separation. It is entirely appropriate that stronger equivalence and transparency arrangements apply during this period.

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I speak in support of Senator Xenophon’s amendments (1) through (3). They go some way towards making some of the improvements the Australian Greens have sought to make to this bill, where we thought it could be improved. I do not need to speak at great length about Senator Xenophon’s amendments; they seem entirely sensible to us, and they will probably improve the processes of transparency as these processes move forward, so we will be supporting the amendments.

8:01 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I have some questions about the TPA. Does the minister agree with the assessment of the Parliamentary Library that ‘the bill allows the ACCC to accept such an undertaking, which is currently likely to be in contravention of the TPA’?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We believe that it allows the ACCC to consider all of the competition aspects.

8:02 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Therefore, obviously the Parliamentary Library has this wrong. Is that what you are saying?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We stand by our statement that the ACCC can consider all of the competition aspects when they are considering the undertaking.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I seek leave to table the advice from the Parliamentary Library. In fact, I will have to correct the record—the document is from the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010. It must be from the explanatory memorandum.

Leave not granted.

Photo of Sue BoyceSue Boyce (Queensland, Liberal Party) Share this | | Hansard source

The government is not giving you leave to table the document, Senator Joyce.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

They are not giving me leave to table something from the explanatory memorandum of their own bill?

The Temporary Chairman:

That is correct, Senator Joyce.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

They have a problem with the explanatory memorandum of their own bill?

The Temporary Chairman:

As I understand it, Senator Joyce, it has already been tabled.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I rephrase the question: does the minister agree with the explanatory memorandum of his own bill? It says that the bill ‘allows the ACCC to accept such an undertaking, which is currently likely to be in contravention of the TPA’.

8:04 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We seek some further information from you, Senator Joyce: which page are you referring to?

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Isn’t it great when they know their work? Every day is a delight with Senator Conroy! I just love debating Senator Conroy! Senator Conroy, it is on page 15 of your explanatory memorandum.

8:05 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Perhaps Senator Joyce is reading two different parts together and drawing a conclusion. Just so that we are absolutely clear, Senator Joyce, the section you are referring to says:

Section 51 of the CCA provides that, in determining whether a person has contravened Part IV of the CCA, certain matters must be disregarded, including anything specified in, and specifically authorised by, an Act. Proposed section 577BA specifies and specifically authorises certain conduct for the purposes of section 51 of the CCA. The result of this is that the conduct specifically authorised under proposed section 577BA must be disregarded when considering whether a person who has engaged in that conduct has contravened Part IV of the CCA.

8:06 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

What I have here is the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill, so the document I am referring to must be from the Bills Digest.

8:07 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I want to ensure that we are on the same page, Senator Joyce. The bill includes provisions in proposed section 577A for the ACCC to scrutinise and approve the competitive impacts of the agreement between Telstra and the NBN Co. Specifically, the ACCC will consider the competitive impacts of the Telstra and NBN Co. arrangements as part of its scrutiny of Telstra’s structural separation undertaking. If the ACCC accepts the undertaking, then the bill authorises the entering into the agreement and associated conduct for the purposes of the trade practices law as set out in section 51 of the Trade Practices Act. This is entirely appropriate and it removes any need for a separate authorisation inquiry while still ensuring appropriate scrutiny of the arrangements between Telstra and the NBN Co. by the ACCC.

8:08 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I refer you to page 15 of the Bills Digest for the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Bill 2010:

The Bill facilitates at least two significant outcomes. First, the threat of a spectrum determination preventing Telstra from acquiring bands of spectrum for advanced wireless broadband services should it not provide an undertaking, that is accepted by the ACCC, to structurally separate and divest its HFC cable network and its interests in Foxtel. Secondly, it allows the ACCC to accept such an undertaking which is currently likely to be in contravention of the TPA.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Was that a question? Or were you just making a point?

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I was making a point. I will follow it up with a question: if the deal between Telstra and the NBN Co. is in breach of the TPA, is the ACCC obliged to reject Telstra’s structural separation undertaking? If so, please point to the part of this bill which imposes that obligation on the ACCC.

8:09 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Thanks, Senator Joyce, and I apologise for being repetitive. The bill includes provisions in proposed section 577A for the ACCC to scrutinise and approve the competitive impacts of the agreement between Telstra and the NBN Co. Specifically, the ACCC will consider the competitive impacts of the Telstra and NBN Co. arrangements as part of its scrutiny of Telstra’s structural separation undertaking. I am not sure I can add much more to that.

8:10 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Can the ACCC reject any subsequent variation of the deal between NBN Co and Telstra?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The bill allows for a variation to be lodged and for the ACCC to take into consideration the competitive impact in making its decision.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Obviously they can consider, but considering is not the issue. I can consider what the weather is like outside. Are they obligated to reject?

8:11 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The ACCC would consider it on its merits, Senator Joyce.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Do they have the power to reject? If it is in clear contravention, are they obligated to reject?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

They have a range of matters that they consider. They have the power to reject and they have the power to consider the impacts on structural reform, so they make a balanced judgment.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

You say they have the power to reject. Are they obligated, if it is in contravention, to reject? The question involves obligation—my stress is on the word ‘obligated’. If it is in contravention, are they obligated to reject?

8:12 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I am advised no, Senator Joyce.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

They are not obligated to reject—thank you very much. What is the meaning of ‘in force’ in proposed section 577BA(9)(a)?

8:13 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I am advised that ‘in force’ means after the undertaking has been accepted.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Does ‘in force’ refer to an agreement that has been authorised by the ACCC in Telstra’s structural separation undertakings?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

To add to my previous answer, Senator Joyce, in this particular case, if it is the subject of a vote of Telstra shareholders later, it does not come into effect until after the shareholders vote. It has no force until the transactional point where the Telstra shareholders say yes or no. Would you repeat your last question?

8:14 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

So ‘in force’ involves a post hoc position dependent upon a shareholders’ vote?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Yes.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Does ‘in force’ mean an agreement that has been authorised by the ACCC in Telstra’s structural separation undertaking? Does it have the imprimatur of the ACCC?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Yes.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Can the minister point in this bill to any protections against uncompetitive behaviour that is as broad and comprehensive as the safeguards in section 51(1) of the Trade Practices Act?

8:15 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I am advised that the authorisation will set out the conduct that is authorised.

8:16 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

So the authorisation sets out the conduct that is authorised. Does that mean that particular to this bill there is no specific section that promotes the safeguards of 51(1) of the Trade Practices Act? But I will move on from that. Does the exemption given to Telstra and NBN Co. cover all aspects of their relations? What are the limits of the exemption in terms of Telstra and NBN Co.’s relations and Telstra and NBN Co.’s relations with third parties?

8:17 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Without trying to sound circular, the ACCC considers those things in deciding about the undertaking. There is not actually an undertaking at the moment, so there is nothing that we can discuss concretely to try to facilitate the discussion, which I am sure is what you are trying to do.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

It is a serious question. I am not trying to—

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I know.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

So you are saying that the authorisation sits in proxy for 51(1). So the obvious question is: is the assessment and criteria or that authorisation of an equivalent nature to 51(1)?

8:18 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I understand the criteria are in 577A(6). It considers what it thinks to be relevant.

8:19 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

It considers what it thinks to be relevant? In considering what it thinks to be relevant, is it considering the same issues that would have otherwise been considered by the ACCC under 51(1)?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Perhaps I can just describe it, Senator Joyce. There is also an important piece of information to add. I quote:

In deciding whether to accept an undertaking under this section, the ACCC must have regard to:

(a) the matters set out in an instrument in force under subsection (7); and

(b) such other matters (if any) as the ACCC considers relevant.

But there is a Senator Xenophon amendment to come on this specific area which may be of interest.

8:20 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I am quite happy for you to say it will be discussed with Senator Xenophon’s amendment, but can you disclose what the minister will set out in section 577A(7)?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

While the officials are looking for that, I will just indicate the criteria I mentioned before. These criteria are the national interest in structural reform of the telecommunications industry and the impact of that structural reform on consumers and competition in the telecommunications market. They are a couple of things that I think Senator Xenophon is moving. I will see if we have any more information on the other question.

One key example is that the ACCC should have regard to the conduct that would be authorised under section 577BA as a consequence of the acceptance of the undertaking. Another example is that the minister will set out guidance on improved equivalence and transparency matters that should be implemented by Telstra during the period it is migrating its customer services to the NBN. This will provide for the better treatment of Telstra’s wholesale customers during the industry’s transition to the NBN.

8:21 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

You will probably rule this one out, Madam Temporary Chair. Is the government inclined towards Senator Xenophon’s amendment?

8:22 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We have indicated that we are supporting Senator Xenophon’s amendment.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

This is my last question on this section. It is a central element of trade practices law that exemptions should only be granted following an authorisation process which clearly demonstrates the public interest of that authorisation. Can the minister point to a part of this bill which requires an investigation of the public benefits of a deal between Telstra and NBN Co.?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

As I mentioned, Senator Xenophon is moving some amendments specifically on the national interest and structural reform of the telecommunications industry which we have indicated we will be supporting.

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

The question before the chair is that amendments (1), (2) and (3) on sheet 7005 revised be agreed to.

Question agreed to.

8:23 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I will not proceed with amendment (4) on an independent telecommunications adjudicator. Do I simply withdraw that or could I give reasons before withdrawing that?

The Temporary Chairman:

You could speak to it, not speak to it or just not move it. Let’s move on.

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I will do a bit of both. I will not proceed with amendment (4) on the basis of advice that there is scope for an independent telecommunications adjudicator within the framework of the act. From my point of view, it would be preferable to have it in there. I am being pragmatic. Discussions I have had with the opposition on this indicate that a robust structure can still exist without it, so I will not be moving that amendment.

by leave—I move amendments (5) to (8) on sheet 7005 revised:

(5)    Schedule 1, item 30, page 11 (before line 26), before paragraph 577A(6)(b), insert:

           (aa)    the national interest in structural reform of the telecommunications industry; and

           (ab)    the impact of that structural reform on:

                   (i)    consumers; and

                  (ii)    competition in telecommunications markets; and

(6)    Schedule 1, item 30, page 11 (after line 28), after subsection 577A(7), insert:

     (7A)    Before making or varying an instrument under subsection (7), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the draft instrument or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and

             (b)    consider any submissions received within the 14-day period mentioned in paragraph (a).

(7)    Schedule 1, item 30, page 14 (after line 10), after the definition of fixed-line carriage service, insert:

telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010.

(8)    Schedule 1, item 30, page 18 (after line 10), after subsection 577B(5), insert:

     (5A)    Before making or varying an instrument under subsection (5), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the draft instrument or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and

             (b)    consider any submissions received within the 14-day period mentioned in paragraph (a).

Amendment (5) relates to an undertaking on structural separation. Further to the discussion between Senator Joyce and the minister, which the minister alluded to, this amendment requires that, in deciding whether to accept a structural separation undertaking, the ACCC must also have regard to the national interest in structural reform in the telecommunications industry and the impact of that structural reform on consumers and on competition in the telecommunications market. This effectively ensures that the ACCC, in deciding whether to accept the undertaking, considers the broader consumer and competition impacts of the structural reform. I think that is an important consumer protection. It is something that I have discussed at length with the government. Senator Conroy and I will not disagree about the ‘at length’ discussions with his office. I am grateful to his officers. My office and his office have been tormenting each other for the last few days in relation to these amendments. I am grateful for the discussions that I have had with the coalition—in particular with the member for Wentworth, Mr Turnbull—on this series of amendments.

I will speak briefly to amendment (7). This amendment inserts into the bill the definition of ‘telecommunications market’ as it currently exists in the Competition and Consumer Act 2010. It ties it together so that there is no ambiguity.

Amendments (6) and (8) go to undertakings on structural separation. These amendments provide that, before making or varying an instrument on matters of structural reform, the minister must publish the draft instrument or variation. The minister must also invite submissions to be made within 14 days to which the minister must have regard. In a sense, this provides accountability to the provisional transparency provision. It allows for feedback. It is not intended to unduly delay the process but provides for a period of 14 days for interested parties to have an opportunity to participate. It gives an extra layer of transparency and scrutiny, and I think that would strengthen the ACCC’s role in the entire process. It also includes an important transparency mechanism for the minister in a way that does not unduly delay determinations but provides for necessary input from interested stakeholders.

I commend these amendments to my colleagues.

8:28 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

Briefly, because these flow on from amendments (1) to (3) that Senator Xenophon moved, I restate the opposition’s general position that we would prefer our amendments, which would ensure the normal operation of the Competition and Consumer Act, to be accepted by the chamber. Notwithstanding that and our belief that we should have the normal testing process, we think that, should our amendments be unsuccessful, Senator Xenophon’s amendments would be of benefit to the operation of the act and would ensure that there is a greater level of test. In particular, Senator Xenophon’s amendment (5) focuses on a national interest test of some description. We have highlighted, time and time again—in relation to the overall basis of the National Broadband Network, which has led to the policies that have driven the government to this legislation around the structural separation of Telstra—that there has been a chronic lack of testing the national interest and whether this is the best way to proceed. We know this test will not achieve all that we had hoped for in that regard. However, we acknowledge that, if our amendments are unsuccessful, it would be some improvement in giving the ACCC the capacity to operate under normal provisions. With that, we support Senator Xenophon’s amendments (5) to (8).

8:29 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

The Australian Greens will be supporting this batch. As Senator Birmingham noted, amendment (5) is a particularly valuable one. We have sought, as Senator Xenophon has done and I suppose as the coalition has done as well, to insert at every important juncture a reminder to regulators that what we are considering here is not just competition—which is important but it is only a subset of what the telecommunications sector should be providing—but the national interest, the impact of structural reform on consumers and competition in telecommunications markets.

I also foreshadow that two of Senator Xenophon’s amendments, (6) and (8), are identical to two Australian Greens amendments. When we get to the second page of the running sheet, we will not be moving ahead with Australian Greens amendments (3) and (6) on sheet 7006. So we will start moving things along a little bit quicker.

8:31 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Under the Trade Practices Act there are three public benefit tests of equivalence. The onus is on the applicant to prove that the authorisation is required. Under this bill, is the onus on NBN Co. and Telstra to prove that the authorisation is required?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Telstra will lodge the structural separation undertaking and, as we have been discussing, the ACCC will consider all the facts. I think we are now about to accept Senator Xenophon’s amendments, and I indicate that the government also supports Senator Xenophon’s amendments.

8:32 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I am not quite sure what the answer is there, whether the onus of proof is on NBN Co. and Telstra to prove the authorisation. I am going to presume that the answer to that was yes, unless you want to disagree with me. If that is the case, will the ACCC be conducting a cost-benefit analysis to determine whether NBN Co. and Telstra agreement—

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Senator Conroy interjecting

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

It’s no?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I didn’t say anything. I sighed heavily.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Will the ACCC be conducting a cost-benefit analysis to determine whether the NBN Co.-Telstra agreement is in the national interest? If not, how else are you going to assess whether it is in the national interest?

8:33 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The ACCC is qualified to make its own judgments about these things, Senator Joyce. It is about to get some new criteria to include in its considerations, and the ACCC are well qualified to make these judgment calls.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

The question, I suppose, is: who is the onus on? In any other form of the TPA it is on the applicant. One would presume that the onus for the authorisation must be with NBN Co. and Telstra to prove that. Is that the case? Do Telstra and NBN Co. have to prove that they warrant the authorisation?

8:34 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The bill includes provisions in proposed 577A for the ACCC to scrutinise and approve the competitive impacts of the agreement between Telstra and NBN Co. Specifically the ACCC will consider the competitive impacts of the Telstra and NBN Co. arrangements as part of its scrutiny of Telstra’s structural separation undertaking. If the ACCC accepts the undertaking then the bill authorises the entering into the agreement and associated conduct for the purposes of trade practices law as set out in section 51 of the Trade Practices Act. As I think I have said, this is entirely appropriate because it removes any need for a separate authorisation inquiry.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

It seems we are just about to the point where you are saying that NBN Co. and Telstra have to prove that the authorisation is warranted. Is that what you are saying? Or was that not the case?

8:35 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

It is up to Telstra to lodge the structural separation undertaking, and then the ACCC will consider it with the criteria already in the bill and with the amended criteria if the Senate does ultimately pass Senator Xenophon’s amendments. I am not trying to obfuscate, I am just trying to be very clear in explaining the position, Senator Joyce. Perhaps I am just a bit slow tonight. It has been a busy few days. Perhaps I am misunderstanding or the officials are misunderstanding what you are seeking.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

What I am seeking is: are NBN and Telstra on an easier ride because, within this bill, there is a process set out so that they can obtain an authorisation which, if they were out in the market and it was anybody else, they might not have to obtain? Then they would have to actually prove that they warranted the authorisation, and they have been given leniency by things that are written in this bill. That is basically what I am saying.

8:36 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I am advised—and I think I have already made this point, so I apologise if it sounds circular, Senator Joyce—but the ACCC makes its decisions on authorisations on their merits. The ACCC makes its own decision based on individual circumstances.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

It is a balance of probabilities test. Okay. Is there an onus on either party, is there a default position, in proving the authorisation?

8:37 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Clearly, the ACCC have to judge it on its merits, and they take into account all of the things we have been talking about, including the criteria that Senator Xenophon is moving—provided, as I expect, it will be passed by the chamber.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

There are three different tests under the TPA, as I mentioned before, and they are of equivalence. Are the tests that are applied under this act similar to the tests of public benefit currently under the act? Has the ACCC made any comments with regard to the tests?

8:38 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The ACCC considers the application on its merits. It has the capacity to accept the undertaking or reject the undertaking, but it considers it on its merits. You asked if the ACCC had made any comments, Senator Joyce—on?

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Has the ACCC made any comments on the public benefit test as applied in the act—in the NBN Co.-Telstra act?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We are not aware if the ACCC have made any comments in this area.

8:39 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

The Trade Practices Act 1974 says the onus is on the applicant to satisfy the commission or tribunal that the public benefit test is satisfied. It also says the applicant must demonstrate that there is a nexus between the proposed conduct and the claimed public benefit. So, quite evidently, in the act the onus is on the applicant to satisfy the commission. The onus, therefore, if this is equivalent, is obviously on Telstra and NBN Co. to prove to the ACCC the public benefit test so as to get the authorisation.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I think you have scrolled down the page too far. You have jumped a section.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

It is from the ACCC, so it is not before you. It reflects on exactly what we are talking about here, because we are trying to prove whether the NBN Co. and Telstra are sneaking around the process of authorisation and the public benefit test because you have put things in the act there to allow the minister to have oversight so as to get them round what otherwise would not be able to be proved by other players in the market, especially players that have to compete against this organisation.

8:40 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Hopefully this may clarify it for you, Senator Joyce. There is no default in favour of acceptance of the undertaking. I hope that assists.

Photo of Trish CrossinTrish Crossin (NT, Australian Labor Party) Share this | | Hansard source

The question is that amendments (5) to (8) inclusive on sheet 7005 revised, moved by Senator Xenophon, be agreed to.

Question agreed to.

The Temporary Chairman:

Senator Xenophon, do you want to move your amendment (20) now?

8:41 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I was going to withdraw a number of amendments that are on the sheet.

The Temporary Chairman:

I am just wondering if you want to deal with (20) and then we can dispense with the first page on the amendments schedule.

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

My colleague Senator Ludlam will be moving another amendment similar to mine. I am happy to do (20) now.

The Temporary Chairman:

That will clear it up a little, because if we do (20) then the first page on the schedule is dealt with.

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I move amendment (20) standing in my name:

(20)  Schedule 1, page 83 (after line 8), after item 64, insert:

64A  Section 104

After:

  • The ACMA may be directed by the Minister to monitor, and report on, specified matters relating to the performance of carriers and carriage service providers.

insert:

  • The ACCC is to monitor, and report each financial year to the Minister on, breaches by Telstra of an undertaking about structural separation.

64B  At the end of Part 5

Add:

105C  Monitoring of breaches by Telstra of an undertaking about structural separation

Monitoring

        (1)    The ACCC must monitor, and report each financial year to the Minister on, breaches by Telstra of an undertaking in force under section 577A.

Report

        (2)    The ACCC must give a report under subsection (1) to the Minister as soon as practicable after the end of the financial year concerned.

        (3)    The Minister must cause a copy of a report under subsection (1) to be tabled in each House of the Parliament within 15 sitting days of that House after receiving the report.

This amendment requires the ACCC to provide an annual report to the minister on the progress of the structural separation undertaking. Again, it is one of providing more transparency in the process. It is in relation to a monitoring of compliance by the ACCC on structural separation undertakings. I commend this amendment to have the ACCC monitor and report each financial year to the minister. It also allows for the ACCC to monitor and report each financial year to the minister on breaches by Telstra of an undertaking about structural separation. Again, it puts a greater onus, I believe, in relation to allowing for a greater degree of transparency. If there is a concern about breaches then the ACCC is to monitor and report each year in the context of the undertakings as to structural separation. I think this is a good thing for consumers, it is a good thing for businesses and it is a good thing for those other wholesalers that Telstra will be providing services to in this transitional period before the final build of the NBN in the context of this legislative framework.

8:43 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

Being all for transparency and accountability, as the opposition are, we are happy to support Senator Xenophon’s amendment (20) that will cause an annual report on the progress of the structural separation and, in particular, breaches of undertakings made by Telstra to be presented to the minister and, most importantly, to be tabled in this place. Notwithstanding my comments previously that we think it would be far preferable to accept the opposition’s amendments to maintain the ACCC’s existing powers, we accept this. I would flag that I think it is an amendment that at some stage will warrant repealing from provisions; that in perpetuity such an annual report is probably not warranted. However, noting that this chamber, Senator Xenophon and the certainly the opposition are not privy—I assume Senator Xenophon is not privy—to the time line of any deal with Telstra or the arrangement that exists with Telstra and how long that will take, it is a little difficult to put a sunset clause in such an amendment. I would take it that the ACCC will, hopefully, one day present a report that simply says that the structural separation is complete and successful and such further reports are no longer warranted, but we will be supporting amendment (20).

Question agreed to.

The Temporary Chairman:

Senator Xenophon, I might just deviate for a moment and go to you. You wanted to withdraw some amendments. Do you think we should do that now so that we have got a tidy process?

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

Yes. I am not sure whether Hansard was able to record that the minister indicated his support for the last amendment. It might be useful to have it on the record that it was supported by the government. I think Senator Conroy is nodding in the affirmative.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I am just coming to that point.

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

That is right. I think it is good to know that. Can I indicate that I will be—

The Temporary Chairman:

We might just tidy up this sheet. Can you tell us what you are going to withdraw—

The Temporary Chairman:

Or ‘not move’—that is the technical term!

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I indicate that I will not be moving at this stage amendments (9), (10), (11), (12), (13), (14) and (15). I will still be moving amendment (16) standing in my name. I propose to withdraw amendment (17). Madam Chair, do you want to keep going through the ones I will be withdrawing?

The Temporary Chairman:

Yes, the ones you will not be moving.

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

And amendment (18)?

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I will be proceeding with amendment (18).

The Temporary Chairman:

Will you still be moving amendment (19)?

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I will move it but I will not spend too much time on it. I will be moving amendments (21) and (22).

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Can I seek clarity there. I have also amendments (12) and (13) revised in your name. I did not quite catch what you said there. I think you indicated you would not be moving (10) and (11).

The Temporary Chairman:

We have (12) and (13) revised and (14) and (15) not to be moved.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

And (12) and (13) were—

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

Yes, because I think there are similar amendments by—

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Thank you. I missed that when you were going through them.

8:48 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

by leave—I move amendments (18), (19), (22), (25), (26), (27), (28), (29), (31), (32), (41) and (42) on sheet 7004:

(18)  Schedule 1, item 30, page 11 (line 27), omit “writing”, substitute “legislative instrument”.

(19)  Schedule 1, item 30, page 12 (line 4), omit “written”, substitute “legislative”.

(22)  Schedule 1, item 30, page 13 (lines 28 to 32), subsections 577A(22) and (23) TO BE OPPOSED.

(25)  Schedule 1, item 30, page 15 (line 7), omit “writing”, substitute “legislative instrument”.

(26)  Schedule 1, item 30, page 15 (line 13), omit “writing”, substitute “legislative instrument”.

(27)  Schedule 1, item 30, page 16 (lines 7 to 12), subsections 577AA(9) and (10) TO BE OPPOSED.

(28)  Schedule 1, item 30, page 18 (line 9), omit “writing”, substitute “legislative instrument”.

(29)  Schedule 1, item 30, page 18 (lines 14 to 16), subsections 577B(8) and (9) TO BE OPPOSED.

(31)  Schedule 1, item 30, page 25 (line 8), omit “writing”, substitute “legislative instrument”.

(32)  Schedule 1, item 30, page 25 (lines 22 to 27), subsections 577BB(3) and (4) TO BE OPPOSED.

(41)  Schedule 1, item 31, page 59 (line 9), omit “make a written”, substitute “, by legislative instrument, make a”.

(42)  Schedule 1, item 31, page 63 (line 18), subsection 75(6) TO BE OPPOSED.

These amendments relate very much to some of the topics we were traversing before. They relate to the accountability of the government in this process, the transparency of this process and ultimately the role of the parliament as an arbiter in this process. Unfortunately, much of that normal transparency, accountability and the role of the parliament has been stripped from this process by the government’s proposals to put in place very special arrangements for the Telstra deal which would exclude it very much from the normal operations of the Competition and Consumer Act. Notwithstanding the changes that we have just made courtesy of Senator Xenophon’s amendments, there are still significant exclusions.

These amendments work in particular to ensure that any ministerial direction given to the ACCC regarding the criteria for acceptance of a functional separation or a structural separation would be a disallowable instrument and therefore subject to the scrutiny of this place and of course the other place. They are fairly straightforward amendments; they simply propose to replace the words ‘in writing’ in a number of places with ‘in a legislative instrument’ and in other places they strike out the words that specify in particular that a direction of the minister is not a legislative instrument. We believe that that level of transparency and accountability is valid for an arrangement of this significance, that it is appropriate that it should be brought to this place and the other place and that members and senators should at the very least have a chance to see whether a ministerial direction is a reasonable direction, that it does provide for the types of protections that Senator Joyce and others have raised and that it does ensure we get a competitive outcome, not a sweetheart deal.

8:51 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

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.

8:53 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I will just provide the coalition with an indication that the Greens will not be supporting this batch of amendments, although we gave it very careful consideration. As Senator Birmingham has already outlined, the amendments that the Greens have put forward in this regard and the amendments that the coalition has put forward come at the problem with the same intent but probably with a difference in emphasis. So we have stopped short of creating any new disallowable instruments at key junctures in the bill, effectively because we are very aware that this is the kind of industry and certainly the kind of process where these instruments would be open to abuse. Regrettably, the opposition’s form on procedural motions and procedural tactics on this issue left us with serious doubt as to whether these instruments would be used in good faith. As a general rule, senators in here well know that the Australian Greens are in favour of more parliamentary involvement rather than less. This is probably the first time I will have voted against the proposal to insert a disallowable instrument to an important piece of legislation. But in the present case more parliamentary engagement means greater scope for the opposition to exercise its professed policy of demolishing the NBN, with little thought for the specific merit of each particular initiative that it seeks to obstruct.

Under these circumstances, I think the amendments that Senator Xenophon is moving, that we are moving and that the coalition has supported to create public greater scrutiny, greater consultation and more windows of transparency into the process are a better compromise than opening up the door to parliamentary levers that would be very open to abuse. Unfortunately, the history of the passage of this particular legislation shows that these fears are probably well founded. So while we support the intent, we do not support the methods that the coalition is putting forward.

8:55 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

For similar reasons I cannot support this amendment but do acknowledge and am grateful for the support of the coalition in other amendments that I moved that would strengthen transparency and strengthen accountability of this process. The imperative is to structurally separate Telstra. The risk, if you have a legislative instrument which can be disallowed at any time within—

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Senator Joyce interjecting

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I am grateful to Senator Joyce for that very helpful lesson in procedure. If you have a legislative instrument which can be disallowed at any time within 15 sitting days that could be over a period of several months, depending on when the break was. Each time that happens it will put a spanner in the works in terms of allowing the structural separation of Telstra to progress. That is a real risk. That is a public policy imperative. As I said earlier, I think there are some coalition senators who, in their heart of hearts, acknowledge that the current vertical integration of Telstra as a telecommunications quasi-monopoly has been bad for consumers and bad for the development of telecommunications in this country. If we have this mechanism in place, however well intentioned it may be, it will end up slowing down the process significantly—to the extent that it could well become unworkable. For those reasons, I feel that I cannot support this series of amendments.

8:56 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

In his response, the Minister for Broadband, Communications and the Digital Economy, Senator Conroy, highlighted a particular lodgement of an undertaking by Telstra. The minister did not deal with the fact that these amendments—and I am happy for senators to consider them separately, by any means, if that would influence their thinking—would also, most importantly, require the minister’s directions to the ACCC to be tabled and be a disallowable instrument.

The minister and the government have structured this legislation so that when the ACCC is asked to take into account certain matters they are limited to what is specified by the minister in writing. We are simply proposing that those written instructions of the minister be a disallowable instrument. Not only would you get the transparency of it being made public—and the minister talked about publishing on the website—but also you would get the opportunity to debate the merits of the minister’s determination and the manner in which he decides to limit that ACCC consideration. That is the real heart of the issue here.

I acknowledge the comments of Senator Ludlam and Senator Xenophon. Sadly, they are taking a narrow view on this. They are viewing it through one area of debate that has taken place in the chamber over a period of time, rather than recognising that if you want to hold to principles of such matters being disallowable you should stick to those principles. You should stick to those principles regardless of who is in government and regardless of what you think the opposition tactics of the day will be. If you are looking at it in terms of the short term you should note that the composition this place is set to change quite markedly in just six to seven months time. However, I would ask the minister to respond to the matter of why his instructions to the ACCC should not be subject to disallowance.

8:59 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Under the registered instruments act, ministerial directions to any entity are overwhelmingly not disallowable.

9:00 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

Why should these ones be not disallowable?

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

As I said, the overwhelming majority fall into that category, and we are consistent with the overwhelming majority.

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

Very briefly, ‘because the overwhelming majority are’ is not a good reason as to why they should not be in this case. This is a matter of particular significance. It is of course distorting the usual operations of the ACCC. It is the minister intervening in an extraordinary way in what would normally be a decision-making process of the ACCC. We think those extraordinary arrangements do warrant—although it may be an unusual process, or not the norm—some oversight by this parliament as a disallowable instrument. The minister has not been able to give a reason—other than, ‘This is what happens in the majority of other similar circumstances’—why in this case he should not be subject to that scrutiny.

9:01 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

It is not appropriate for these instruments to be legislative instruments because Telstra will require clarity and certainty on the matters set out in the instruments before it proceeds with structural separation. You have a balance between wanting to guarantee that certainty and wanting another level of oversight. The level of oversight would genuinely not allow the process to proceed in an appropriate time frame and with the certainty, and that would be a self-defeating exercise.

Question put:

That the amendments (Senator Birmingham’s) be agreed to.

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

I now put the question that sections 577A(22) and (23), 577AA(9) and (10), 577B(8) and (9), 577BB(3) and (4) in item 30, and section 75(6) in item 31, stand as printed.

Question agreed to.

9:09 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

To clean up the running sheet, as Senator Xenophon has done, I would just indicate that the Australian Greens will not be moving amendments (3) and (6) on sheet 7006, which were to be the next items moved on the running sheet. While I have the floor, I will also indicate that we will not be proceeding with amendments (16) and (17) on page 3 of the running sheet, which means the ball is back in the opposition’s court.

9:10 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

by leave—I move opposition amendments (20), (21), (23), (30) and (44) of sheet 7004 together:

(20)  Schedule 1, item 30, page 13 (lines 17 and 18), omit “the associated provisions”, substitute “subsection 577BC(2)”.

(21)  Schedule 1, item 30, page 13 (line 24), omit “the associated provisions”, substitute “subsection 577BC(2)”.

(23)  Schedule 1, item 30, page 14 (lines 3 to 5), omit the definition of associated provision.

(30)  Schedule 1, item 30, page 18 (line 17) to page 25 (line 5), section 577BA TO BE OPPOSED.

(44)  Schedule 1, item 33, page 75 (line 34) to page 76 (line 5), item TO BE OPPOSED.

As we see it, this is probably one of the most important parts of the amendments to be proposed to this legislation. I have referred to it already with regard to Senator Xenophon’s previous amendments. These relate very much to ensuring that we maintain the normal operation of the Competition and Consumer Act and that the ACCC—the protectors of competition, fair trade and fair practice in this country—get a decent opportunity to have proper oversight of the deal between NBN Co. and Telstra. We want to make sure that this arrangement does protect the interests of consumers, does promote competition, is a fair and good one, and is one that is in the national interest. As we have flagged before, we are not against structural separation—we are not against this proceeding—but we want to make sure that it proceeds in a proper way. We want to make sure that it is a good arrangement for everyone concerned—consumers and the nation—and that it is one that will promote proper competition into the future and not at all inhibit proper competition.

Unfortunately, the government, through the way they have structured this legislation, seek to have extraordinary powers to dictate the terms on which the ACCC will consider the proposed deal between NBN Co. and Telstra. By dictating it, we will give the government quite unfettered powers. And regrettably, as a result of the division just had in this place, where we saw all of the crossbenchers side with the government, those unfettered powers have all been put in the hands of the minister to make rules that will limit the extent of consideration by the ACCC of the effectiveness and fairness of this deal. We do not think that is the right thing. We do not believe the minister should have those unfettered powers. It is regrettable in the extreme that the crossbenchers, who so often talk about and champion the power of the parliament and talk about the need for government accountability to the parliament, decided on this occasion to not make the government accountable to the parliament.

Here they get a second chance in a sense, not through disallowable instruments but through reinstating the normal operative provisions of the Competition and Consumer Act—the former Trade Practices Act—and the ACCC. In doing that, we can ensure that consumers are looked after, that the telco industry is looked after and that, most importantly, competition is promoted in a fair and transparent way. There should be nothing for the government to fear from this. There should be nothing for NBN Co. to fear from this. Parties of all persuasions have for many years, since the Trade Practices Act was first passed around the year of my birth—

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | | Hansard source

Senator Brandis interjecting

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

In fact, in the year of my birth—thank you, Senator Brandis. The Trade Practices Act has been supported, enhanced and bettered by people on both sides of politics. Rather regrettably, it has also been renamed by the current government.

However, this legislation has grown and has brought about, we believe, the operation of an organisation—the ACCC—that has the skills, the capacity and the know-how to make sure that these arrangements and deals are competitive and work for consumers. I would urge the crossbenchers, whom I suspect have already predetermined their position on these amendments, to think again and to realise that they have each played a role in championing the cause of good competition legislation in this country and that they have each played a role in promoting the role of the ACCC and building that role up. I know that Senator Xenophon in particular is a strong advocate for the role of the ACCC and is deeply involved in many ways. He has passed some amendments that help to make a bad policy less bad. We think it would be far preferable to abandon the bad policy of shutting out the ACCC and to actually give them the opportunity to examine this deal just as they would any other deal.

9:15 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We are going to revisit a little bit of what we discussed with Senator Joyce a little earlier and some of Senator Xenophon’s amendments.

Senator Birmingham, your concern is touching, except that you did make an offer that you would pass the bill if we accepted a cost-benefit analysis, and you did not care about any of these things. So, please, do not raise passion on the evening—it is a long evening as it is. If your passion for this particular principle was so high you should not have offered to pass the bill publicly—

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

It wasn’t quite an offering speech!

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

It was in the newspapers—I read it. You were offering publicly to pass the bill unamended if we agreed to a cost-benefit analysis. But I will cease with my across the chamber banter—I apologise, Mr Temporary Chairman.

The bill already includes provision in proposed sections 577A, under which the ACCC will scrutinise the competitive impacts of the agreement between Telstra and the NBN Co. and we have accepted some amendments recently to strengthen that particular area. Specifically, the ACCC will consider the competitive impacts of the Telstra and NBN arrangements as part of its scrutiny of Telstra’s structural separation undertaking. If the ACCC accepts the undertaking then the bill authorises the entering into of the agreement and associated conduct for the purposes of trade practices law as set out in section 51 of the Trade Practices Act. This is entirely appropriate as it removes any need for a separate authorisation inquiry, whilst still ensuring appropriate scrutiny of the arrangements between Telstra and the NBN Co. by the ACCC.

By way of background, section 51 of the Trade Practices Act is a well-established mechanism which has been used extensively by Australian governments. The ACCC website currently lists 80 separate pieces of Commonwealth, state and territory legislation where section 51 authorisations are used.

So, unfortunately, we will not be able to support Senator Birmingham’s heartfelt plea for us to support this amendment.

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

The question is that opposition amendments (20), (21) and (23) of sheet 7004 be agreed to.

Question put.

Photo of Alan FergusonAlan Ferguson (SA, Deputy-President) Share this | | Hansard source

The question now is that section 577BA in item 30 and item 33 stand as printed.

Question agreed to.

9:25 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

by leave—I move Greens amendments (4) and (5) together:

(4)    Schedule 1, item 30, page 13 (after line 21), after subsection 577A(20), insert:

   (20A)    The Minister must not make a legislative instrument under subsection (20) unless the Minister has obtained advice from the ACCC that confirms that the proposed exemption regarding the fixed-line carriage service would promote the long-term interests of end users.

(5)    Schedule 1, item 30, page 13 (after line 27), after subsection 577A(21), insert:

   (21A)    The Minister must not make a legislative instrument under subsection (21) unless the Minister has obtained advice from the ACCC that confirms that the proposed exemption regarding the telecommunications network would promote the long-term interests of end users.

Greens amendments (4) and (5) insert two safety-net provisions in schedule 1 of the bill. This is intended to guide the minister’s discretion in exempting a specific fixed line carriage service offered by Telstra to retail customers. The whole purpose of this legislation is to separate out Telstra’s wholesale and retail arms. Section 577A sets up the framework for Telstra to offer its structural separation undertaking for the ACCC to assess. Subsections (20) and (21) set out two exemptions to this fundamental process by way of a legislative instrument. That is why we have sought to hold the process up here: because these two subsections set out two very important carve-outs to the overall purpose of what this legislation is for.

We understand that there are instances in which there could be a legitimate reason for the minister to create such exemptions or carve-outs, so we are not proposing to remove them from the bill. But we are concerned that at the moment the process is entirely opaque. There is no process there at all for transparency, for reasons or for anything of this sort.

Australian Greens amendments (4) and (5) provide that, if the minister is going to allow such an exemption, he must seek the advice of the ACCC, which, to quote briefly from the amendment itself:

… confirms that the proposed exemption regarding the telecommunications network—

or the fixed line carriage service, as the case may be—

would promote the long-term interests of end users.

So there is your operative phrase right there. If there is going to be a carve-out from the fundamental provisions of the bill, and if Telstra is going to be exempted and is going to be able to continue to offer these services, then the ACCC must provide advice that that carve-out is in the long-term interests of end users. It may seem like a subtle point, but we are introducing a fairly simple requirement that a minimal public interest test be a consideration in the minister granting any such exemption. I commend these amendments to the Senate.

9:27 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

The opposition will not be supporting these amendments of the Australian Greens. We have argued strongly in this place thus far during the course of this debate for there to be decent oversight, for there to be the maintenance of, ideally, the existing provisions and powers of the ACCC and for there to be strong accountability for the minister. We see these, frankly, as token measures, well intentioned though they may be, I am sure—because I know Senator Ludlam is always well intentioned. I have great respect for Senator Ludlam’s intentions, but frankly these two amendments require the minister to get some advice. That is all. They do not require the minister to heed that advice in any way whatsoever. And, as we know, there is far from the necessary oversight in this chamber to ensure that the minister is heeding advice that is given, is acting in the national interest, is acting in consumers’ interests and is acting in the interests of competition.

While Senator Ludlam and the Greens come here with good intentions in moving these amendments, I regret to say that we do not think they will make one iota of difference to the way the processes operate and to what is actually going to happen. We would have far preferred that the Greens or the other crossbenchers recognise that, if you want to hold the government to account, to ensure that the minister is promoting the long-term interests of end users, to ensure that the minister is promoting real competition and to ensure that the minister is not ticking off on some type of sweetheart deal, you should put all of the deal through the usual paces of the ACCC’s scrutiny. You should put all of the deal through the usual operations of the Competition and Consumer Act.

These amendments—which just tell the minister to get some advice—sound great, but making them would be a little bit like changing the objects. In some ways I am reluctant to mention that, because I know it will bring back to Senator Ludlam memories of the debate we had about amendments (1) and (2) to change the objects. I am not suggesting that we should repeat that debate, Senator Ludlam—I am certainly not suggesting that—but these amendments, whilst they require the minister to talk to somebody and whilst they make some work for public servants, do not require the minister to heed any advice or to do anything meaningful to be any more accountable to this parliament or anybody else in his decision making, and that is why the coalition will not be supporting them.

9:30 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The government opposes these amendments. The relevant legislative instruments will give effect to structural separation arrangements agreed between Telstra and NBN Co. The ACCC will consider the exemption in the context of the overall agreement when deciding whether to accept the structural separation undertaking. It is not appropriate to apply the test of the long-term interests of end users test to one element of the arrangements on their own. There are some technical problems with these amendments as drafted because they do not appropriately cross-reference the long-term interests of end users as it is used in the telecommunications legislation.

9:31 pm

Photo of Nick XenophonNick Xenophon (SA, Independent) Share this | | Hansard source

I support Senator Ludlam’s amendments. I think Senator Birmingham calls them well-intentioned and I am not sure if that is damning with faint praise—I always worry if anyone accuses me of being well-intentioned! I think these amendments are sensible. They are intended to add to the transparency of these provisions, and I would have thought that, if the government thought there were issues with the drafting of the amendments, they could have found a way through that—if there were some technical issues, they could have been dealt with.

9:32 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Since this has to do once more with the implications of a cost-benefit analysis, I draw the minister’s attention to interpretations of public benefit by the ACCC. According to the ACCC, public benefit is defined as:

… anything of value to the community generally, any contribution to the aims of society including as one of its principal elements (in the context of trade practices legislation) the achievement of the economic goals of efficiency and progress’. Plainly the assessment of efficiency and progress must be from the perspective of society as a whole: the best use of society’s resources. We bear in mind that (in the language of economics today) efficiency is a concept that is taken to encompass “progress” and that commonly efficiency is said to encompass allocative efficiency, production efficiency and dynamic efficiency.

That definition would be very broad if applied properly, and it would obviously mean that you would need a cost-benefit analysis of the NBN Co. and Telstra agreement. So how are you going to determine the public benefit test without one?

Question agreed to.

9:33 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

by leave—I move Australian Greens amendments (7) to (15) on sheet 7006 together:

(7)    Schedule 1, item 30, page 26 (after line 24), after subsection 577BC(5), insert:

Consultation

     (5A)    Before making an instrument under subsection (3) or (4), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the proposed instrument; and

                  (ii)    inviting persons to make submissions to the Minister about the proposed instrument within 14 days after the notice is published; and

             (b)    cause to be published on the Department’s website a copy of each submission received within the 14-day period mentioned in paragraph (a); and

             (c)    consider any submissions received within the 14-day period mentioned in paragraph (a).

(8)    Schedule 1, item 30, page 36 (after line 4), after subsection 577C(1), insert:

     (1A)    In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:

             (a)    the matters (if any) set out in an instrument in force under subsection (1B); and

             (b)    such other matters (if any) as the ACCC considers relevant.

      (1B)    The Minister may, by writing, set out matters for the purposes of paragraph (1A)(a).

      (1C)    Before making or varying an instrument under subsection (1B), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the draft instrument or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and

             (b)    consider any submissions received within the 14-day period mentioned in paragraph (a).

(9)    Schedule 1, item 30, page 36 (after line 14), at the end of section 577C, add:

        (7)    The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department’s website.

        (8)    An instrument under subsection (1B) is not a legislative instrument.

(10)  Schedule 1, item 30, page 40 (after line 1), after subsection 577D(3), insert:

     (3A)    In deciding whether to accept the variation, the ACCC must have regard to:

             (a)    the matters (if any) set out in an instrument in force under subsection (3B); and

             (b)    such other matters (if any) as the ACCC considers relevant.

      (3B)    The Minister may, by writing, set out matters for the purposes of paragraph (3A)(a).

      (3C)    Before making or varying an instrument under subsection (3B), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the draft instrument or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and

             (b)    consider any submissions received within the 14-day period mentioned in paragraph (a).

(11)  Schedule 1, item 30, page 40 (after line 4), at the end of section 577D, add:

        (6)    The Minister must cause a copy of an instrument under subsection (3B) to be published on the Department’s website.

        (7)    An instrument under subsection (3B) is not a legislative instrument.

(12)  Schedule 1, item 30, page 40 (after line 15), after subsection 577E(1), insert:

     (1A)    In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to:

             (a)    the matters (if any) set out in an instrument in force under subsection (1B); and

             (b)    such other matters (if any) as the ACCC considers relevant.

      (1B)    The Minister may, by writing, set out matters for the purposes of paragraph (1A)(a).

      (1C)    Before making or varying an instrument under subsection (1B), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the draft instrument or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and

             (b)    consider any submissions received within the 14-day period mentioned in paragraph (a).

(13)  Schedule 1, item 30, page 40 (after line 29), at the end of section 577E, add:

        (7)    The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department’s website.

        (8)    An instrument under subsection (1B) is not a legislative instrument.

(14)  Schedule 1, item 30, page 44 (after line 21), after subsection 577F(3), insert:

     (3A)    In deciding whether to accept the variation, the ACCC must have regard to:

             (a)    the matters (if any) set out in an instrument in force under subsection (3B); and

             (b)    such other matters (if any) as the ACCC considers relevant.

      (3B)    The Minister may, by writing, set out matters for the purposes of paragraph (3A)(a).

      (3C)    Before making or varying an instrument under subsection (3B), the Minister must:

             (a)    cause to be published on the Department’s website a notice:

                   (i)    setting out the draft instrument or variation; and

                  (ii)    inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and

             (b)    consider any submissions received within the 14-day period mentioned in paragraph (a).

(15)  Schedule 1, item 30, page 44 (after line 24), at the end of section 577F, add:

        (6)    The Minister must cause a copy of an instrument under subsection (3B) to be published on the Department’s website.

        (7)    An instrument under subsection (3B) is not a legislative instrument.

I indicate at this stage that Senator Xenophon will probably seek to add his name to these amendments. They are very similar—in most cases, I think, they are identical—to the amendments that Senator Xenophon withdrew a short time ago, so they are effectively trying to achieve much the same thing. The bill was fairly prescriptive with regard to the obligations of various parties in the event that Telstra pursues functional separation, but obligations of the minister under a structurally separated model are much less prescriptive and actually leave quite wide discretion. In many cases they are quite opaque, and it would be very difficult for the public or other players in the industry to tell what was going on. At the very least, stakeholders should be given the opportunity to consult on the draft determination and its various components, having the ACCC call for submissions and placing them in the public domain.

Our amendments, which I sought leave to move in a batch, open a series of windows on the process, providing for publication of draft documents on the department’s website, including the structural separation undertaking itself—which is covered by amendments (3) and (6)—the migration plan, the hybrid fibre-coaxial undertaking and the pay-TV undertaking. So that takes us right through the batch of amendments that I have just sought leave to roll together. In all instances, draft instruments are to be posted on the department’s website, and 14-day submission periods are mandated for each form of undertaking.

I acknowledge that this does not go as far as the coalition’s foreshadowed amendments, which sought to make some of those instruments disallowable and subject to continued intervention by the ACCC. We have had a fair bit of back and forth tonight about the coalition’s proposals and how they do differ from what the Australian Greens have sought to do. We believe that these amendments provide a greater degree of transparency without actually providing those points of intervention whereby the process could be wrecked, or at least derailed, for substantial periods of time. I commend those amendments to the chamber.

9:36 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

After careful consideration, the government opposes this amendment. The amendment requires public consultation—

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

We are actually dealing with amendments (7) to (15) together.

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

If it is the minister’s will, I am happy to move amendment (7) separately and then move the others as a batch, but I will seek the guidance of either the chair or the minister—whoever has the best idea.

The Temporary Chairman:

Given that you have indicated that, Senator Ludlam, I will simply divide the question. So we will put amendment (7) separately.

9:37 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Sorry about that. The government opposes amendment (7). It requires public consultation on the ministerial instruments, which provide for what a migration plan may or may not deal with. The government does not consider consultation on these instruments will be necessary. The bill already provides for consultation on the migration plan principles in proposed subsection 577BB(2). Under subsection 577BD(2), the ACCC can only approve the migration plan if it complies with the principles. The ACCC is also required to consult when deciding whether to approve the original plan. Accordingly, we believe there are already sufficient opportunities for stakeholder input on the migration plan. Mr Temporary Chairman, should I speak on the other amendments now?

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

I think that would probably be easier.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The government supports amendments (8) to (11) for the purposes of consistency with Greens amendments (3) and (6). Similar amendments have been made to the HFC undertakings and variations to those undertakings provisions. These amendments allow the minister to set out in an instrument the matters the ACCC must have regard to and require public consultation to occur on those instruments. The government also supports amendments (12) to (15) for the purposes again of consistency with amendments (3), (6) and (8) to (11). Similar amendments have been made to the subscription television undertakings and variations to those undertakings provisions. These amendments allow the minister to set out in an instrument the matters the ACCC must have regard to and require public consultation to occur on these instruments. Sorry for that confusion.

9:38 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

The opposition we will be opposing these amendments. Senator Ludlam has made some reference to the overall tone of the debate tonight and the nature of discussion around previous amendments and some of the opposition’s other amendments. They have been well canvassed. He understands as well as any of us that we would have rather seen a full and rigorous ACCC assessment, as I have said on many occasions already.

With regard to these particular amendments, we believe that, in a similar vein to the previous amendments, to some extent they seek to engage the public more. They seek to provide a longer process and they are very much process driven, but they do not fundamentally change the capacity of the ACCC to make independent decisions free of the government’s interference. In particular, I note in amendment (8) that there is further capacity, even in a Greens amendment, for the minister to set out purposes and intervene to some extent. This is, I think, a case where the Greens, in signing up to a deal with the government, have in many ways given up on many of the things that they so often talk about in this place and given up on ensuring that ministers are held to account and independent statutory bodies are genuinely independent and able to operate of their own accord. This is not a case where the Greens are holding true to the types of things that they espouse so often. So often we hear, particularly from their leader, sanctimonious comments about the need in this place for us to be—

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

Senator Hanson-Young interjecting

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

Order!

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

Thank you, Senator Hanson-Young. I am more than happy to be the purest party in this debate, if that is what you want, because you are the ones that seem to have a great capacity nowadays for caving in to the government first. Senator Xenophon at least held out for something; all you did was hold out to ensure that you would ultimately make privatisation harder. That just shows, of course, that the Greens are living in some type of North Korean empire still, where you want to mandate—

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

We’ve sold it off and now we have to buy it back!

The Temporary Chairman:

Order!

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

There it is, isn’t it—we sold it off and now we have to buy it back. That says it all. Senator Conroy is even cringing at that comment. These are your partners in this little adventure, Senator Conroy, you know.

Whilst you may want to see the NBN ultimately privatised and you may believe that is the goal you will eventually reach, we would question whether it is ever going to be worth anywhere near what you are going to spend on it so that when privatised it can provide the taxpayer with any reasonable level of value for money.

All along for the Australian Greens this has been about renationalising telecommunications in this country. That is what Senator Hanson-Young has indicated—it has all been about renationalising telecommunications. They have sold out to the government lock, stock and barrel in the hope of renationalising telecommunications in this country. They have given up on their usual belief that ministers should be accountable to this place.

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

It would be wonderful!

Photo of Julian McGauranJulian McGauran (Victoria, National Party) Share this | | Hansard source

You signed a seven-year confidentiality agreement!

The Temporary Chairman:

Order! I ask senators to cease injecting and encourage senators to come back to the question before the chair.

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

Thank you, Mr Temporary Chairman. Senator Conroy and I were both commenting before that we would not mind moving on from here. I assume that Senator Hanson-Young’s intervention in the debate means that the gatherings that I saw in the courtyard before have come to a close and there is potentially nothing for us to move on to now, Senator Conroy.

With these amendments, what we have is the Greens once again trying to cover their trail in this legislation. They just want to be able to say, ‘We pursued a few things to make the government somewhat more accountable or transparent.’ That is not at all what these amendments do. They certainly do not make the government any more accountable, because accountability means that there are some consequences if the government does not act. There is no accountability in these amendments, just as there was none in the other amendments. In the end, the government can seek all the advice it wants. It can go out and allow public submissions if it wants—it can do all of those sorts of things—but, ultimately, as we see littered throughout this legislation, the minister still has the capacity at the end of the day to basically do what he wants. For all the Greens’ carry-on, that is the point. The minister has the capacity to do what he wants. What we fear we will see is that, in curtailing the powers of the ACCC and the arrangements, along with what is happening with the National Broadband Network, we will get a less competitive outcome in Australia.

That is not what we want. It is not what anyone in this chamber says they want; yet by excluding the nation’s competition watchdog from exercising their full powers in the way that the Greens have assisted the government to do will only hurt us. It will risk our getting it wrong rather than ensuring that we get it right. The Greens had the chance in previous amendments and divisions to get it right. They chose not to take the chance. This amendment will not make a difference and will not provide an opportunity to fix or cover their failure to actually hold the government to account and seek a real deal on structural separation.

9:45 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I just want to make a brief contribution. I could not let it pass that Senator Birmingham felt the need to point to what he believed was a hidden agenda for some of those involved in this debate, when all of us here know that the overwhelming number of senators opposite actually support this bill. They actually support the separation of Telstra. They have just been caught in a bit of a time warp. It was Senator Joyce’s stated public position at the Page Research Centre, where he was, apparently, with Senator Nash, at a National Party think tank. That is not an oxymoron. That document from the Page Research Centre was actually their own document. It was adopted by the Queensland National Party. I am not sure if the Liberal-National Party of Queensland has still got the same policy on its books, but it was the policy of the National Party at one stage before they sold out their principles. As for the Liberal right-wing economic rationalists, they could not but support this bill.

So I think, Senator Birmingham, that it might be a case of the pot calling the kettle black in this particular instance. But I am interested to see if there are any takers on an idea that we include an amendment in one of the NBN bills that those senators who vote in the chamber against the National Broadband Network voluntarily ask to be connected last to the National Broadband Network. Are there any takers? Can we get that up, Senator Xenophon?

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

You won’t tell us which streets it is going down last.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

We will be; don’t you worry. Just give us your address and we will make sure that you have the capacity to get signed on last—you too, Senator McGauran. And that will include staff, too, for this atrocity. We will collect all the addresses and you can just voluntarily agree to go last. But I will not hold the chamber up any longer.

9:47 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Seeing that we are back to where we started, we might as well ask a few pertinent questions. You talk now about your upfront capital cost, which I think is $35.7 billion—even though your own Prime Minister nominated it as $37.5 billion. But that is all right; she is allowed to make a mistake of a couple of billion dollars.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

Senator Conroy interjecting

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

You were a fantastic shadow finance minister, weren’t you?

The Temporary Chairman:

Senator Conroy and Senator Sarah Hanson-Young, I would appreciate you ceasing your interjecting, particularly when you are not in your places.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

They are as pure as the driven snow, those who are sitting behind us here! You have now got this mischievous way of describing the costs, where you are now talking about the upfront capital costs as opposed to where you were in the past when it was more of an all-encompassing cost. I would suggest that that is one of the main reasons that you have gone from your $43 billion down to $35.7 billion. Do you include in that $35.7 billion the cost of finance? If you do not—because it is an upfront capital cost—do you feel that is an appropriate way to cost it? If you have not included the cost of finance, are you not drastically short in the real cost of this project? Likewise, you are saying that there is a better return on your cost of capital and because you removed your leases from the project. Would it not have been more appropriate to also put the leases in there as a better reflection of your total costs for the project? Are you not way below what would be an honest interpretation of the costs as initially displayed in the way that you calculated your costs in the $43 billion figure?

9:49 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I am not quite sure how any of those questions were relevant to the bill, Senator Joyce—no offence.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I can explain it.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

They are not actually relevant to the bill. I am not quite sure if I can seek any advice on them because we came here to debate the bill. What I do congratulate you on, Senator Joyce, is actually doing a bit of research yourself—I mean that quite sincerely—and, more importantly, not trying to suggest that you should add operating expenses and capital expenses together and coming up with that dodgy $50 billion figure. When those opposite during question time were asking that question, I saw you looking at the floor. As an accountant you should have perhaps given them a bit of friendly advice.

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

Senator Hanson-Young interjecting

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

To be fair, Senator Hanson-Young, Senator Joyce had the decency to look at the floor and not add up two numbers because they were in the same box and say, ‘Wow; that must be the cost.’ As to the questions you have asked, Senator Joyce, all will be revealed shortly. I think you will actually be quite interested in the information that you have been asking about. But I will just hold out on you a little longer, because I would not want to spoil the surprise. Quite seriously, Senator Joyce, you do deserve congratulations for looking at the floor during question time when the bozos were trying to prove how financially illiterate they are.

9:51 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Thank you very much. I am blushing!

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

You always are.

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

You cannot get a kind word out of Senator Hanson-Young. She is a hard one to please. It is hard work down in this corner, I can tell you! I put a green tie on to try to make them feel better and even that does not work. They are very cross and cantankerous benchers. In getting a proper association and a proper reflection of cost, in whatever form of cost-benefit analysis you did, did you do it in relation to your upfront costs of capital, as you have prescribed your $35.7 billion, or to a more encompassing figure that took into account other factors such as your cost of finance and your long-term leases? Which one did you use?

9:52 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

As I said, we have revealed all the information we wish to reveal at this stage. The Prime Minister has given a very public commitment that we will reveal the rest of the information we are able to, without jeopardising commercial-in-confidence material, in a few weeks. I do not really want to spoil the surprise. I can only suggest, in terms of the harassment you are getting in that corner, that I would lose the tie!

9:53 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

Good luck on that one! The problem is that it is like waiting for Christmas: the present is wrapped up but we cannot actually determine what it is. However, we have to vote on this tomorrow.

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

Have you been a good boy?

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

I am a very good boy when I am around you, Sarah. The question is: wouldn’t it be more appropriate that the Australian people have the right to see this information prior to voting on it rather than afterwards?

9:54 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I appreciate that, while you have been able to convince yourselves, certainly, that this is a bill that revolves around the National Broadband Network, it is a bill that you have been opposed to for over 12 months. First of all, you demanded to see the expert panel’s advice. You said, ‘We can’t deal with this bill until after that is made available,’ so we gave you what was available. Then you said, ‘We want to see the ACCC’s advice to the expert panel,’ and, when we tabled that, did that make a difference? No, you kept opposing it. Then you said you wanted a cost-benefit analysis. Then you said that you wanted this piece of information and that piece of information. The truth is that you have been opposed to this all along, even though, as I said earlier, many of you—perhaps even Senator Brandis—also believe in the structural separation of Telstra.

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | | Hansard source

I’ve never said that.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I said ‘perhaps’.

Photo of George BrandisGeorge Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | | Hansard source

Don’t speculate on what I believe.

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

I said ‘perhaps’. I am sure that some of the people sitting near you privately support this bill. Senator Joyce, it will be only be a few short weeks. This bill is not about the business case of the National Broadband Network. You say, ‘We must have this information,’ but that is what you have said about five other pieces of information and, when you got it, it made no difference; you found a new reason to oppose the bill. It is hard to take your claims seriously, although you are far more diligent at looking into these issues than many of those opposite, and you do, after all, know the difference between operating expenses and capex expenses.

9:56 pm

Photo of Barnaby JoyceBarnaby Joyce (Queensland, National Party, Leader of The Nationals in the Senate) Share this | | Hansard source

The issue is that a lot in the bill refers to the NBN. Without going over old ground, so much of the bill is structured with the intent of dealing with the NBN. You talk about people’s viewpoints on broadband. The Labor Party lost the plot when they went from $4.7 billion up to $43 billion and back down to $35.7 billion, and we know that a better portrayal of the costs is far in excess of that. Diligence around such a massive figure is just not apparent. The paraphernalia that was delivered to us this morning is just atrocious in the paucity of detail. That is what creates concern in the community. This is not our money; we are going to borrow it, and borrowed money has to be repaid. If you cannot repay it, you are in a world of strife. Nothing we have seen from the Labor Party thus far shows that they can repay it. They always make promises to repay—the consummate art of the IOU—but they are absolutely atrocious at actually delivering the capacity to repay. We have $172.7 billion in gross debt. We have to have an appropriations bill once we get to $200 billion. Last week they borrowed an extra $2.8 billion. We are racing ahead. We have every right in the world—in fact, it is our duty—to make sure that they do not send us down the gurgler.

Photo of Gavin MarshallGavin Marshall (Victoria, Australian Labor Party) Share this | | Hansard source

The question is that Australian Greens amendment (7) be agreed to.

Question negatived.

The Temporary Chairman:

The question now is that Australian Greens amendments (8) to (15) be agreed to.

Question agreed to.

9:58 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I move Australian Greens amendment (R18) on sheet 7019:

(R18)       Schedule 1, item 31, page 55 (line 24), at the end of paragraph (b) of the definition of equivalence, add:

                      , including (but not limited to) terms and conditions in relation to:

                   (i)    ordering and provisioning; and

                  (ii)    fault detection, handling and rectification; and

                 (iii)    technical and operational quality of services.

This is a fairly simple amendment. It goes some way towards specifying what we mean by ‘equivalence’ in the event of Telstra choosing to go down the pathway of functional separation. I suppose everybody in here, as well as Telstra, would hope that we never go down that track. We have added three subclauses to more tightly define what ‘equivalence’ means in this context. Senator Xenophon has an amendment that probably tightens up the definition in the case of structural separation. Australian Greens amendment (R18) deals with the same terminology in the event that Telstra chooses to go down the functional separation path. I commend Greens amendment (R18) to the chamber.

9:59 pm

Photo of Stephen ConroyStephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Government in the Senate) Share this | | Hansard source

The government supports the amendment. The amendment clarifies the definition of ‘equivalence’ as provided for in subclause 69 of proposed part 9 of schedule 1 to the Telecommunications Act. The amendment provides that ‘equivalence’ includes terms and conditions relating to ordering and provisioning fault detection, handling and rectification, and technical and operational quality of services.

Progress reported.