Commonwealth of Australia Explanatory Memoranda

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TELECOMMUNICATIONS LEGISLATION AMENDMENT (COMPETITION AND CONSUMER) BILL 2018

                        2016-2017-2018



THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA



               HOUSE OF REPRESENTATIVES




 TELECOMMUNICATIONS LEGISLATION AMENDMENT
     (COMPETITION AND CONSUMER) BILL 2017




   SUPPLEMENTARY EXPLANATORY MEMORANDUM




     Amendments to be moved on behalf of the Government




   (Circulated by authority of the Minister for Communications,
              Senator the Honourable Mitch Fifield)
              TELECOMMUNICATIONS LEGISLATION AMENDMENT
                  (COMPETITION AND CONSUMER) BILL 2017



                                         OUTLINE
Reporting deadline

Section 102ZF in Schedule 4 to the Telecommunications Legislation Amendment
(Competition and Consumer) Bill 2017 (TLA(CC) Bill) requires carriers to report to the
Australian Competition and Consumer Commission (ACCC) by 31 December 2017 regarding
the number of premises on their network that had an active high speed fixed-line broadband
service during the whole or part of the month of November 2017, and giving details of
relevant associates they had at any time during that month.

The reporting month and reporting deadline, as set out in the Bill, are expected to occur
before Schedule 4 to the TLA(CC) Bill commences. The amendment seeks to address this
issue by deferring the reporting month and related reporting timeframe until a time after the
TLA(CC) Bill receives the Royal Assent.

Disallowance procedure

Section 102ZFB in Schedule 4 to the TLA(CC) Bill provides the disallowance procedure that
applies to determinations made by the Minister, as legislative instruments, under subsections
76AA(2), 79A(1) or (2). Subsection 76AA(2) allows the Minister to determine one or more
classes of carriage service to be a designated broadband service for the purposes of Part 3 of
the Telecommunications (Consumer Protection and Service Standards) Act 1999
(TCPSS Act), and section 79A allows the Minister to determine that a location is, or is not,
taken to be premises for the purposes of Part 3 of the TCPSS Act.

The disallowance procedure provides that section 42 of the Legislation Act 2003 does not
apply to these determinations. In Scrutiny Digest 8 of 2017 tabled in the Senate on
9 August 2017, the Senate Standing Committee for the Scrutiny of Bills criticised this
approach. In its report about the TLA(CC) Bill and the Telecommunications (Regional
Broadband Scheme) Charge Bill 2017 tabled in the Senate on 6 September 2017, the Senate
Environment and Communications Legislation Committee also criticised this approach and
recommended that section 102ZFB be amended to provide for deemed disallowance in
specified circumstances. Amendment (13) seeks to address these concerns with the
disallowance procedure in the TLA(CC) Bill by inserting a new subsection that closely
reproduces subsection 42(2) of the Legislation Act 2003, although in modified form.




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                         FINANCIAL IMPACT STATEMENT



Amendments (1) to (13) do not have any financial impact.




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                                NOTES ON AMENDMENTS

               AMENDMENTS (1), (2), (3), (4), (5), (6), (7), (8), (9) and (11)

These amendments would change the reporting month for the written report required under
proposed section 102ZF from November 2017 to the 'applicable reporting period' (a new
term inserted by Amendment (12)).

                                     AMENDMENT (10)

Amendment (10) would alter the timeframe in which carriers must provide the written report
to the ACCC on the matters set out in proposed paragraph 102ZF(2)(c). The proposed new
timeframe is within one month of the applicable reporting period.

                                     AMENDMENT (12)

Amendment (12) would insert three new subsections into proposed section 102ZF. Proposed
subsection 102ZF(7) would provide that the 'applicable reporting period' is the second month
that began after commencement of the section, or a later month specified by the Minister by
legislative instrument under proposed subsection 102ZF(8), which cannot be later than
October 2018 (proposed subsections 102ZF(8) and (9)).

This empowers the Minister to give carriers more time to prepare to comply with the reporting
arrangements, if required, but also gives industry certainty about the latest possible due date
for the report. For example, if the Minister specified the month of August 2018 as the
applicable reporting period, the resulting final due date for the report would be 30 September
2018. If the Minister decided to specify a month, it is anticipated s/he would do so soon after
the Bill received the Royal Assent to maximise industry certainty about the reporting date.

                                     AMENDMENT (13)

This amendment would insert new subsection 102ZFB(3A) to ensure that if a notice of
motion to disallow is given in a House of the Parliament within 15 sitting days after a
determination is tabled in that House, and at the end of 15 sitting days of that House after the
notice of motion has been given either:
    (i)    the notice has not been withdrawn and the motion has not been called on; or
    (ii)   (ii) the motion has been called on, moved and (where relevant) seconded and has
           not been withdrawn or otherwise disposed of, the determination will be taken to
           have been disallowed.

This amendment enhances Parliamentary scrutiny of any Ministerial determinations made
under:
    (i)      proposed subsection 76AA(2) (determination of a specified class of designated
             broadband services);
    (ii)     proposed subsection 79A(1) (determination of locations to be premises for the
             purposes of new Part 3 of the TCPSS Act); and
    (iii) proposed subsection 79A(2) (determination of locations not to be premises for the
             purposes of new Part 3 of the TCPSS Act));
by ensuring that where a notice to disallow any such determination has been given in a House
of Parliament, and the motion has not been considered within the 15 sitting days of that House
after the giving of the notice so that the notice of motion to disallow remains unresolved at the
end of the disallowance period, the determination will be taken to have been disallowed. In
this case, the determination will not take effect.
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As subsection 102ZFB(3) of the TLA(CC) Bill is contrary to section 12 of the Legislation Act
2003, the usual commencement arrangement as set out in subsection 12(1) of that Act does
not apply to these determinations. Determinations made under proposed subsections 76AA(2),
79A(1) and 79A(2) will only take effect if, and when, subsection 102ZFB(3) of the Bill is
satisfied.




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