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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
2.2 Correspondence relating to these matters is included at Appendix 1.
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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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Scrutiny principles
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Standing Order 24(1)(a)(iv) and (v)
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2.3 The committee dealt with this bill in Scrutiny Digest No. 5 of 2017. The Minister responded to the committee's comments in a letter dated 14 June 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 1.
Initial scrutiny – extract
2.4 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]
2.5 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).
2.6 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.
2.7 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]
2.8 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.
2.9 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.
Minister's response
2.10 The Minister advised:
The Bill proposes amendments to replace the requirements to table annual reports prepared by the Australian Competition and Consumer Commission (the ACCC) and Australian Communications and Media Authority (ACMA) that relate to market and industry developments with requirements to publish the reports online. In particular, the amendments would require the reports to be published online "as soon as practicable and no later than 6 months after the end of the financial year concerned". These changes will enable market information to be made available to the public, the communications industry and Parliamentarians sooner. The reports will also be more readily available to the public because online publication will be required.
The annual reports provide an overview of the performance of the telecommunications industry, market developments, consumer trends and industry compliance. As such, the value of the reports is maximised the sooner and wider they are made available to the public. The process of tabling these reports means that by the time the reports become publicly available, much of the information they contain is dated. For example, the ACCC report on telecommunications competition and price changes for the period ending 30 June 2016 was published in February 2017. This delays the public and the Parliament from reviewing the latest market information. The timely publication of the report is also important to industry participants, who may rely on the reports to gather market information. While these reports are typically published online, making them available to users of the internet, this is not a legislated requirement.
Under the proposed amendments, the reports will be made available to the public on the ACCC and ACMA's websites. The ACCC and ACMA's practice of issuing media releases upon the release of their reports will help alert interested parties to the release of the reports.
The proposed amendments also align with a movement towards publishing online more industry information collected by agencies. For example, in the Communications portfolio, the Broadcasting Services Act 1992 requires the ACMA to publish on its website a copy of the annual captioning compliance report is provided by commercial broadcasting licensees or national broadcasters.
As noted by the Committee, reports on consumer safeguards in the telecommunications industry prepared by the ACCC at the direction of the Minister will continue to be tabled. Annual reports concerning the operation of the ACCC and the ACMA as statutory bodies will also continue to be tabled in Parliament.
The other amendments in the Bill cited by the Committee to enable the ACCC and the ACMA to better tailor their reports are not put forward as a justification for online publication.
Committee comment
2.11 The committee thanks the Minister for this response. The committee notes the Minister's advice that while the amendments remove the requirement for the ACCC and ACMA to table certain reports in the Parliament, the amendments also require the reports to be published online 'as soon as practicable and no later than 6 months after the end of the financial year concerned'. The Minister advised that these changes 'will enable market information to be made available to the public, the communications industry and Parliamentarians sooner' and that the 'reports will also be more readily available to the public because online publication will be required'. The committee also notes the Minister's advice that reports on consumer safeguards in the telecommunications industry prepared by the ACCC at the direction of the Minister and annual reports concerning the operation of the ACCC and the ACMA as statutory bodies will continue to be tabled in Parliament.
2.12 While the committee accepts that publication of reports online assists in making information available to the public sooner, the committee reiterates that 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.
2.13 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.14 In light of the information provided and the fact that certain reports of the ACCC and the ACMA will continue to be tabled in Parliament, the committee makes no further comment on this matter.
Initial scrutiny – extract
2.15 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]
2.16 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]
2.17 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.
2.18 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.
Minister's response
2.19 The Minister advised:
The proposed removal of the consultation requirements in section 152ELB of the Competition and Consumer Act 2010 forms part of a broader program of reform of statutory consultation requirements in the Communications portfolio. These reforms have been progressed over several years, including through the Omnibus Repeal Day (Autumn 2014) Act 2014, which made similar amendments to the Broadcasting Services Act 1992, Interactive Gambling Act 2001, Radiocommunications Act 1992 and the Telecommunications Act 1997.
The rationale for the removal of bespoke consultation requirements is that such requirements are unnecessarily duplicative in light of the consultation requirements in section 17 of the Legislation Act 2003 (the Legislation Act), which sets out the standard consultation requirements for all Commonwealth legislative instruments.
The provisions that have been repealed mandated a variety of inconsistent approaches with respect to the time and method of consultation. There is no policy rationale for this inconsistency, which introduces unnecessary inflexibility and cost without corresponding benefits above those supplied by the standard consultation arrangements. The proposed repeal of section 152ELB is intended to contribute to the underlying goal of simplifying and harmonising the law.
The Committee has noted that the Legislation Act consultation requirements are less prescriptive and subject to certain exemptions. One of the significant benefits of Chapter 3 of the Legislation Act is the fact that it does not purport to prescribe in detail exactly how consultation should occur. It simply requires a rule-maker to be satisfied that all appropriate and reasonably practicable consultation has been undertaken. This means that targeted consultation can be undertaken, with flexibility to ensure that the consultation meets the needs of stakeholders and also that unnecessary costs to the Government and stakeholders are minimised.
The Committee has also expressed concern that the provisions under the Legislation Act allow consultation to be tailored without affecting the validity or enforceability of an instrument. In this context, I note that Part 5 of the Legislation Act sets out a tabling and disallowance regime which facilitates parliamentary scrutiny of legislative instruments. The consultation undertaken in relation to any legislative instrument is required to be set out in the associated explanatory statement and, accordingly, if Parliament were dissatisfied with the consultation of the ACCC on Procedural Rules made under section 152ELA, the relevant instrument may be disallowed.
Committee comment
2.20 The committee thanks the Minister for this response. The committee notes the Minister's advice that the reason for removing the bespoke consultation requirements is that such requirements are unnecessarily duplicative in light of the consultation requirements in section 17 of the Legislation Act 2003, which sets out the standard consultation requirements for all Commonwealth legislative instruments. The Minister further advised that the bespoke consultation provisions mandate a variety of inconsistent approaches with respect to the time and method of consultation and that there is no policy rationale for this inconsistency, which introduces unnecessary inflexibility and cost without corresponding benefits. The Minister also advised that the consultation undertaken in relation to any legislative instrument is required to be set out in the associated explanatory statement and, accordingly, if Parliament were dissatisfied with the consultation undertaken by the ACCC the relevant instrument may be disallowed.
2.21 The committee notes this advice, however, the committee retains scrutiny concerns where specific requirements for consultation prior to the making of delegated legislation are sought to be removed. The committee does not consider a general desire for consistency or harmonisation, of itself, to be a sufficient justification for removing bespoke consultation requirements. Where specific consultation requirements are sought to be removed specific detail and examples about why the current specific consultation requirements are inappropriate should be provided.
2.22 The committee takes this opportunity to reiterate 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. In this regard, the committee notes that where the standard consultation requirements in the Legislation Act are relied on it is possible for no consultation to 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. The committee also notes it may be difficult for parliamentarians to know whether appropriate consultation has taken place within the timeframe for disallowance.
2.23 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.24 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of removing the specific consultation requirements imposed on the ACCC prior to the making of delegated legislation.
2.25 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.
[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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