Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Monday, 9 December 2002
Page: 7359


Senator ALSTON (Minister for Communications, Information Technology and the Arts) (12:32 PM) —by leave—I move government amendments (1) to (15) on sheet EC207 and table a supplementary explanatory memorandum relating to the government amendments to be moved to the Telecommunications Competition Bill 2002. The memorandum was circulated in the chamber on 3 December last. I so move:

(1) Schedule 1, item 1, page 3 (line 8), omit “ACCC may”, substitute “ACA must”.

(2) Schedule 1, item 2, page 3 (lines 10 and 11), omit the item, substitute:

2 Section 348

Omit “may”, substitute “must”.

(3) Schedule 1, items 3 and 4, page 3 (lines 12 to 15), omit the items, substitute:

3 Subsection 349(2)

Omit “may”, substitute “must”.

4 Subsection 349(2)

After “specified” (first occurring), insert “declared”.

4A At the end of subsection 349(2)

Add:

Note: Declared carriage service is defined by section 350A.

(4) Schedule 1, page 3, after proposed item 4A, insert:

4B After section 350

Insert:

350A Declared carriage services

(1) The ACCC may, by written instrument, declare that a specified carriage service is a declared carriage service for the purposes of this Part.

(2) The declaration has effect accordingly.

(3) In deciding whether to make a declaration under this section, the ACCC must have regard to whether the declaration will promote the long-term interests of end-users of:

(a) carriage services; or

(b) services supplied by means of carriage services.

(4) The ACCC may have regard to any other matters that it thinks are relevant.

(5) For the purposes of this section, the question whether a particular thing promotes the long-term interests of end-users of:

(a) carriage services; or

(b) services supplied by means of carriage services;

is to be determined in the same manner in which that question is determined for the purposes of Part XIC of the Trade Practices Act 1974.

Note: See section 152AB of the Trade Practices Act 1974.

(5) Schedule 1, items 5 to 13, page 3 (line 16) to page 7 (line 16), omit the items, substitute:

5 At the end of section 352

Add:

(4) Before making a declaration under this section, the ACA must consult the ACCC.

6 Transitional—sections 349 and 350A of the Telecommunications Act 1997

(1) This item applies if:

(a) a carriage service was the subject of a determination under subsection 349(2) of the Telecommunications Act 1997; and

(b) the determination was in force immediately before the commencement of this item.

(2) The Telecommunications Act 1997 has effect, in relation to the carriage service, as if the ACCC had:

(a) made an instrument under subsection 350A(1) of that Act declaring the service to be a declared carriage service for the purposes of Part 17 of that Act; and

(b) complied with the requirement set out in subsection 350A(3) of that Act in relation to the instrument.

(3) This item does not prevent the instrument referred to in paragraph (2)(a) from being varied or revoked by the ACCC in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

(4) The amendments of subsection 349(2) of the Telecommunications Act 1997 made by this Part do not affect the validity of the determination.

(6) Schedule 1, page 10 (after line 25), at the end of the Schedule, add:

Part 4Instruments

25 Subsection 589(6) (definition of this Act)

Repeal the definition, substitute:

this Act includes:

(a) the Telecommunications (Consumer Protection and Service Standards) Act 1999; and

(b) Parts XIB and XIC of the Trade Practices Act 1974.

(7) Schedule 2, item 9, page 15 (lines 13 to 15), omit subitem (1), substitute:

(1) This item applies if:

(a) a final determination was made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 before the commencement of this item; or

(b) both:

(i) a final determination is made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 after the commencement of this item; and

(ii) the final determination relates to an access dispute that was notified under section 152CM of the Trade Practices Act 1974 before 26 September 2002.

(8) Schedule 2, item 62, page 34 (after line 9), after subsection (10), insert:

(10A) The expiry time for the order may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.

(10B) Subsection (10A) does not, by implication, limit subsection (10).

(9) Schedule 2, item 74, page 42 (line 25), at the end of subsection (7), add:

To avoid doubt, if the undertaking is subject to limitations, the service supplied by the person is a declared service only to the extent to which the service falls within the scope of the limitations.

(10) Schedule 2, item 95, page 48 (line 29), after “section 152AR”, insert “(disregarding subsection 152AL(7))”.

(11) Schedule 2, item 95, page 52 (line 31), after “section 152AR”, insert “(disregarding subsection 152AL(7))”.

(12) Schedule 2, page 68 (after line 5), after item 121, insert:

121A Section 151AB

Insert:

content service has the same meaning as in the Telecommunications Act 1997.

(13) Schedule 2, item 124, page 68 (after line 18), after subsection (1), insert:

(1A) The Minister may only give a direction under subsection (1) that:

(a) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or

(b) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.

(1B) The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially-directed report, to:

(a) prepare a specified kind of analysis of the report; and

(b) publish the analysis within a specified period after receiving the report.

Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.

(1C) The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially-directed periodic reports, to:

(a) prepare a specified kind of analysis of the report; and

(b) publish the analysis within a specified period after receiving the report.

(14) Schedule 2, item 124, page 68 (line 22), omit “this section”, substitute “subsection (1)”.

(15) Schedule 2, item 124, page 68 (after line 30), after section 151BUAA, insert:

151BUAAA Minister to give direction to Commission about Telstra's wholesale operations and retail operations

(1) The Minister must take all reasonable steps to ensure that a special Telstra direction is given within 6 months after the commencement of this section.

(2) For the purposes of this section, a special Telstra direction is a direction under section 151BUAA that:

(a) relates to Telstra's wholesale operations and retail operations; and

(b) requires the Commission to exercise its powers under section 151BU to make rules requiring Telstra to:

(i) keep and retain particular records; and

(ii) prepare reports consisting of information contained in those records; and

(iii) give those reports to the Commission; and

(c) requires the Commission to exercise its powers under at least one of sections 151BUDA, 151BUDB and 151BUDC in relation to those reports.

(3) Before giving a special Telstra direction in compliance with subsection (1), the Minister must:

(a) publish a draft of the direction and invite people to make submissions to the Minister on the draft direction; and

(b) consider any submissions that are received within the time limit specified by the Minister when he or she published the draft direction.

(4) This section does not, by implication, limit the Minister's powers to give subsequent directions to the Commission in relation to Telstra's wholesale operations and retail operations.

(5) In this section:

Telstra has the same meaning as in the Telstra Corporation Act 1991.

wholesaleoperations includes operations in relation to services that Telstra supplies:

(a) to itself; or

(b) to other persons, in order that the other persons can provide carriage services and/or content services.

The amendments are designed to improve the proposed accounting separation framework to require that all reasonable steps be taken to ensure that a special Telstra direction is given within six months of the commencement of the bill. A special Telstra direction is one that relates to Telstra's wholesale and retail operations and it requires the ACCC to exercise its powers to make rules requiring Telstra to keep and retain particular records, prepare reports based on these records and deliver the reports to the ACCC. The amendments also set out the procedure that must be followed before the minister can make a special Telstra direction: the minister must publish the draft of the direction, invite people to make submissions on the draft direction within the specified time limit and consider any submissions that are received, before making the direction. The amendments also clarify that the minister may only give a direction that requires the ACCC to exercise its powers under sections 151BU, 151BUDA, 151BUDB and 151BUDC or that requires the ACCC exercise its powers under those sections in a particular way. This means that the minister would not be able to give a direction to the ACCC not to exercise its powers under those sections. The amendments also enable the minister to give a written direction to the ACCC requiring it to prepare a specified kind of analysis of the report and to publish the analysis within a specified period after receiving the report.

To enable matters in an instrument to be incorporated by reference, one of the amendments amends section 589 of the Telecommunications Act to allow instruments made under parts XIB and XIC of the Trade Practices Act to apply, adopt or incorporate provisions of any act, instrument or other writing as enforced or existing at a particular time or from time to time. This will allow ministerial direction in relation to accounting separation to refer to the regulatory accounting framework enforced from time to time. The government's amendments will also refine the proposed preselection provisions so that the ACCC makes the threshold decision on which services should be preselectable, but the ACA is responsible for implementation, including technical matters. This refines the proposed preselection amendments in the bill to provide that the ACCC specifies which services should be subject to preselection, but the ACA determines the preselection requirements for those services, including exemptions from the requirements. The amendments also provide a right to seek merits review by the Australian Competition Tribunal in relation to access disputes that were notified to the ACCC before the introduction of the bill in the House of Representatives on 26 September last.

The proposed amendments include some minor technical amendments. One is an amendment to ensure that provisions relating to the expiry time of ex-ante class exemptions and individual ex-ante exemptions are similar—that is, so that an expiry time of an exemption order:

... may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service.

Another amendment provides two provisions relating to ex-ante undertakings, proposed sections 152CBA and 152CBF, to make it clear that the reference to `act of declared service' is to declaration in the ordinary sense under proposed section 152AL(3), not the deemed declaration that results from the proposals in the bill, proposed section 152AL(7). Another amendment to proposed section 152AL(7) clarifies that if a special access undertaking is subject to limitations then the service specified in the undertaking is deemed to be a declared service—and therefore subject to the standard access obligations—only to the extent to which the service falls within the scope of the limitations.