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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend various Acts relating to communications to:
• amend account keeping and licence fee administration arrangements
for commercial broadcasters and datacasting transmitter
licensees;
• remove the requirement that licensees audit certain financial
information that they are required to provide to the Australian
Communications
and Media Authority (ACMA);
• repeal the requirement for licensees to use the film classification
scheme the Classification (Publications, Films and Computer Games) Act 1995
when broadcasting films;
• amend the ACMA's complaints handling and investigation
functions;
• amend the publication methods for notices in respect of program
standards or standards relating to datacasting;
• enable the telecommunications industry to develop an industry-based
scheme for the management of telephone numbering resources;
• repeal tariff filing directions applying to certain carriers and
carriage service providers;
• amend the statutory information and reporting functions of the ACMA
and the Australian Competition and Consumer Commission
(ACCC);
• remove the ability of NBN Co to issue and keep a register of
statements that it is not installing fibre in a new real estate
development;
• provide for NBN Co to dispose of surplus non-communications goods;
and
• remove redundant and unnecessary legislation including through the
repeal of various spent historical Acts
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Portfolio
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Communications and the Arts
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Introduced
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House of Representatives on 29 March 2017
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1.12 Certain provisions in the bill propose to remove requirements in the Competition and Consumer Act 2010 and the Telecommunications Act 1997 for the Minister to table documents in Parliament, including:
• annual reports of the ACCC regarding competitive safeguards within the telecommunications industry (this does not apply where the ACCC is directed by the Minister to report);[2]
• monitoring by the ACCC of telecommunications charges paid by consumers; and[3]
• the annual report of the ACMA.[4]
1.13 While the bill ensures that some of this information will be published online, the bill proposes to remove legislative provisions which require that this information be made available to the Parliament (and therefore the public at large).
1.14 The committee notes that removing the requirement for certain information to be tabled in Parliament reduces the scope for parliamentary scrutiny. The process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are only published online. As such, the committee expects there to be appropriate justification for removing a tabling requirement. The committee generally does not consider the costs involved in tabling the documents to be a sufficient basis for removing the requirement to table in Parliament.
1.15 The reason for removing these tabling requirements appears to be on the basis that it is also proposed that the ACCC and the ACMA will no longer be required to provide such reports to the Minister. Rather, flexibility will be given to the ACCC and the ACMA as to what matters are reported on. The explanatory memorandum states:
The ACCC would be empowered to decide which charges to monitor and report on... The ACCC would no longer report to the Minister, and the report would no longer be tabled in Parliament, but instead the ACCC would be required to publish the report on its website as soon as practicable but no later than 6 months after the end of the financial year.[5]
...
It is preferable to provide the ACMA with greater flexibility to prepare targeted reports.[6]
1.16 However, while the committee notes the basis for making the reporting requirements to the Minister more flexible, this does not provide a justification for why the requirement to table the reports that are produced by the ACCC and the ACMA is being removed.
1.17 Noting the potential impact on parliamentary scrutiny of removing the requirement for certain information to be made available to the Parliament, the committee requests the Minister's advice as to why the requirement for these documents to be tabled in Parliament is proposed to be removed.
Pending the Minister's reply, the committee draws Senators' attention to the provisions, as they may be considered to insufficiently subject the exercise of legislative power to parliamentary scrutiny, in breach of principle 1(a)(v) of the committee's terms of reference.
1.18 Schedule 5, item 2 seeks to repeal section 152ELB of the Competition and Consumer Act 2010. This would remove the requirement for the ACCC to, before making any Procedural Rules, publish a draft on the ACCC's website and to invite people to make submissions during a period of at least 30 days and consider any submissions received. In explaining the repeal of this provision, the explanatory memorandum states that:
this provision is considered unnecessary in light of the standard consultation requirement in section 17 of the Legislation Act 2003, which require a rule maker, subject to certain exceptions, to be satisfied that appropriate and practicable consultation has been undertaken prior to making a legislative instrument.[8]
1.19 However, the committee notes that section 17 of the Legislation Act 2003 does not strictly require that consultation be undertaken before an instrument is made. Rather, it requires that a rule-maker is satisfied that any consultation, that he or she thinks is appropriate, is undertaken. In the event that a rule maker does not think consultation is appropriate, there is no requirement that consultation be undertaken. In addition, there are no equivalent process requirements to those contained in the current provision, which provides for at least 30 days for people to make submissions on the draft Rules and for those submissions to be considered. In addition, the Legislation Act 2003 provides that consultation may not be undertaken if a rule-maker considers it to be unnecessary or inappropriate; and the fact that consultation does not occur cannot affect the validity or enforceability of an instrument.[9]
1.20 Where the Parliament delegates its legislative power in relation to significant regulatory schemes the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument.
1.21 The committee therefore requests the Minister's detailed justification for removing the current, specific requirements for consultation by the ACCC prior to the making of procedural rules by legislative instrument.
Pending the Minister's reply, the committee draws Senators' attention to the provision, as it may be considered to delegate legislative powers inappropriately, in breach of principle 1(a)(iv) of the committee's terms of reference.
[1] Schedule 3, items 15, 18 and 22.
[2] Schedule 3, item 15, amendments to section 151CL of the Competition and Consumer Act 2010.
[3] Schedule 3, item 18, amendments to section 151CM of the Competition and Consumer Act 2010.
[4] Schedule 3, item 22, amendments to section 105 of the Telecommunication Act 1997.
[5] Explanatory memorandum, p. 21.
[6] Explanatory memorandum, p. 22.
[7] Schedule 5, item 2, in relation to the proposed repeal of section 152ELB of the Competition and Consumer Act 2010.
[8] Explanatory memorandum, p. 28.
[9] See sections 18 and 19 of the Legislation Act 2003.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2017/123.html