Home | Databases | WorldLII | Search | Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

You are here: 

Telstra Corporation and Other Legislation Amendment Bill 2021 [2021] AUSStaCSBSD 243 (24 November 2021)

Telstra Corporation and Other Legislation Amendment Bill 2021

Significant matters in delegated legislation^[50]

1.109 Item 1 of Schedule 4 to the bill seeks to insert proposed Part 34B into the Telecommunications Act 1997 in relation to access to supplementary facilities and telecommunications transmissions towers.

1.110 Proposed section 581Y provides that an eligible company must, if requested to do so by a carrier, give the carrier access to facilities owned or operated by the eligible company. Proposed  subsection 581Z(1)  provides that an eligible company must comply with subsection 581Y on such terms and conditions as are either agreed by the parties or determined by an arbitrator. Proposed  subsection 581Z(2)  provides that the regulations may make provision for and in relation to the conduct of an arbitration.

1.111 Proposed section 581ZA provides that the minister may, by legislative instrument, make a determination setting out principles dealing with price-related terms and conditions relating to the obligations imposed by proposed subsection 581Y(1).

1.112 Proposed section 581ZD provides that an eligible company must, if requested to do so by a carrier, give the carrier access to a telecommunications transmission tower owned or operated by the eligible company. Proposed subsection 581ZE(1) provides that an eligible company must comply with subsection 581ZD on such terms and conditions as are either agreed by the parties or determined by an arbitrator. Proposed subsection 581ZE(2) provides that the regulations may make provision for and in relation to the conduct of an arbitration.

1.113 Proposed section 581ZF provides that the ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under Division 3 of Part 34B. There is no guidance on the face of the primary legislation as to the types of matters the Code may contain.

1.114 The committee's consistent scrutiny view is that significant matters, such as the details regarding how arbitration will be conducted and the details of pricing determinations and codes, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow these significant matters to be set out in delegated legislation.

1.115 It is unclear to the committee why at least high-level guidance regarding a number of these matters could not be provided on the face of the primary legislation. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.116 The committee requests the minister's advice regarding:

• why it is considered necessary and appropriate to leave details regarding how arbitration will be conducted, the setting out of principles dealing with price-related terms and conditions, and the scope of conditions that may be included in the proposed Code relating to access to delegated legislation; and

• whether the bill could be amended to provide at least high-level guidance in relation to these matters on the face of the primary legislation.

Exemption from sunsetting^[51]

1.117 Item 1 of Schedule 5 to the bill seeks to amend the Legislation (Exemptions and Other Matters) Regulation 2015 to provide that a declaration under proposed section 581F or 581G of the Telecommunications Act 1997 is exempt from the sunsetting requirements in the Legislation Act 2003. These provisions allow the minister to declare that a company is a 'Telstra successor company' or 'designated Telstra successor company'.

1.118 The regime for sunsetting of legislative instruments in the Legislation Act 2003 is an important safeguard which facilitates regular parliamentary scrutiny of the legislative power that the Parliament has delegated to the executive. Where a bill exempts delegated legislation from sunsetting, the committee expects the explanatory memorandum to address why it is appropriate to provide for such an exemption, noting the importance of sunsetting to effective and regular parliamentary scrutiny. In this instance, the explanatory memorandum states:

This provides certainty for relevant companies as to the legislative framework that applies to it, by removing the risk that the instrument determining its status as a Telstra successor company or a designated Telstra successor company would not sunset and need to be remade.
This is critically important in the context of Telstra's restructure. If, at some point, a ministerial exemption was provided in right of a certain regulatory obligation, Telstra may seek to attract capital and investment in that entity. In the event that exempting instruments were subject to sunsetting, this would dissuade investment and add to uncertainty, not in the public interest, especially given that some of the assets in question are long term assets, with an investment cycle of 20 – 30 years.^[52]

1.119 In light of the explanation provided in the explanatory memorandum, the committee leaves to the Senate as a whole the appropriateness of exempting instruments made under proposed sections 581F and 581G (relating to the declaration of Telstra successor companies) from sunsetting.

[50] Schedule 4, item 1, proposed sections 581Z, 581ZA, 581ZE, 581ZF. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[51] Schedule 5, item 1. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[52] Explanatory memorandum, p. 65.