APPENDIX 4
TELSTRA INQUIRY: QUESTION ON NOTICE TO ATTORNEY-GENERAL'S
DEPARTMENT
In the course of my evidence to the Committee on Friday 26 July 1996
in connection with the Telstra (Dilution of Public Ownership) Bill
1996 (the Bill) that has been referred to the Committee, Senator Carr
asked me for `a complete list of all consumer and community guarantees
contained in this legislation that are subject to change or subject to
a disallowable instrument' (see page 882 of the uncorrected Hansard
transcript). Senator Carr further indicated that in this regard he was
referring to provisions in the Bill or in associated Acts `which go to
issues such as timed local calls, consumer guarantees in terms of service
delivery or any other measure that is defined as a consumer or community
guarantee' (page 883).
2. A `disallowable instrument' is an instrument made under a statutory
power to make such an instrument that the relevant legislation expressly
provides is a `disallowable instrument' for the purposes of s.46A of the
Acts Interpretation Act 1901 (the Acts Interpretation Act). The
effect of this is that the provisions of the Acts Interpretation Act relating
to the making of regulations, the requirement to table regulations before
both Houses of Parliament, provisions for the disallowance of regulations
by either House of Parliament (see also paragraph 5 below) and certain
other provisions relating to the interpretation of regulations (Acts Interpretation
Act ss 48, 48A, 48B, 49 and 50) apply in relation to that instrument as
if it were a regulation (Acts Interpretation Act s.46A(1)).
3. For the purpose of providing an answer to Senator Carr's question
I have examined provisions that provide for the making of disallowable
instruments in the Telecommunications Act 1991 (Telecommunications
Act), the Telstra Corporation Act 1991 (Telstra Act) and the amendments
proposed to both of those Acts by the Bill (the relevant legislation).
In addition to considering provisions that provide for the making of a
`disallowable instrument', I have also considered provisions in the relevant
legislation that provide for the making of `regulations' within the meaning
of the Acts Interpretation Act where these may come within the scope of
the issues referred to in Senator Carr's question.
4. The relevant legislation provides for some matters that could be said
to relate to `consumer and community guarantees' to be provided for by
regulation or disallowable instrument. The phrase `consumer or community
guarantee' however does not have a defined meaning in the legislation
under consideration.
(a) The Telecommunications Act provides for the carrier licence conditions
that are made under s.64 or 65 of the Act to be disallowable instruments
(see s.66 of the Telecommunications Act).
(i) In addition to the requirements relating to disallowable instruments
provided for by the Acts Interpretation Act (see further below at
paragraph 5), the Telecommunications Act imposes some procedural requirements
relating to licence conditions in certain circumstances (ss 67 - 70).
(ii) Licence conditions may be declared by disallowable instrument
to be `prescribed carrier obligations' under a licence (see s.71 of
the Telecommunications Act). Before any prescribed carrier
obligation of a carrier could be varied or removed, there also must
be a public inquiry and a report by AUSTEL (see s.69(1) and s 69(3)).
(b) The Bill includes a declaration as to the continuing operation
of the `universal service obligation' provided for by Part 13 the Telecommunications
Act (see proposed s.8CM of the Telstra Act). The Bill does not alter
the obligations imposed at present under Part 13 of the Telecommunications
Act.
(i) The content of the obligation in relation to the `standard telephone
service' is determined by ss 288(1)(a) and 288(1)(b) of the Telecommunications
Act. The definition of `standard telephone service' set out at s.5
of the Telecommunications Act may be varied by regulations (see paragraph
(b) of the definition of `standard telephone service' at s.5).
(ii) The content of the universal service obligation in relation
to the payphones is provided for by ss 288(1)(c) and 288(1)(d). Regulations
may prescribe what is, or is not, necessary to ensure that payphones
are `reasonably accessible' as provided for by s.288(1)(c) (s.288(4)).
This provision in my opinion does not confer any power by regulation
to take away the substance of the obligation to ensure that payphones
are `reasonably accessible' as provided for by s.288(1)(c). The regulations
merely can prescribe what must be done to ensure that the obligation
in s.288(1)(c) is carried out. The obligation to `supply, install
and maintain payphones in Australia' (s.288(1)(d)) may be supplemented
by a determination made by the Minister by notice published in the
Gazette that it is part of the universal service obligation to do
this `at specified locations in Australia' (see s.288(2)). (iii) The particular carrier or carriers who must comply with the
universal service obligation (see s.292) must be specified by disallowable
instrument (see s.290(7)). The Act requires that there must be at
least one such carrier who is subject to such a declaration at any
particular time (see s.290(4)(a); see also s.290(3) and Telecommunications
(Universal Service Levy) Act 1991 s.4).
(c) The Telstra Act in its present form provides a scheme for regulation
of charges for a telecommunication service or facility supplied by Telstra
by means of disallowable instruments (see Telstra Act Part 6: ss 19
to 25). No changes are made to these provisions by the Bill.
(d) Clause 11 of the Bill inserts a new Division 6 of Part 5 into the
Telecommunications Act to provide for a customer service guarantee.
The relevant provisions of the Bill provide for AUSTEL, by disallowable
instrument, to determine: performance standards where directed to do
so by the Minister (proposed s.87E); a scale of damages for breach of
performance standards (proposed s.87G)); and any circumstances in which
customers may waive their rights under proposed Division 6 of Part 5
(proposed s.87J). Directions by the Minister to AUSTEL about how it
is to exercise its powers under Division 6 of Part 5 also are made by
disallowable instrument (see proposed s.87P). The rights of customers
against carriers that operate with reference to the matters determined
under proposed ss 87E and 87G are set out in proposed s.87F.
(e) Where a carrier supplies a `standard telephone service' (see definition
at s.5, which may be varied by regulations), it must give the customer
the option of untimed charges where untimed charges were imposed by
Telecom for that service at 1 July 1991 (see ss 73 and 2(1) of the Telecommunications
Act). The Bill makes amendments to ss 73(2) and 73(3) which extend the
scope of persons entitled to be provided with such services so as to
include business customers, not only residential or charitable or welfare
customers as at present (see clauses 9 and 10 of the Bill).
5. Disallowable instruments and regulations must be laid before each
House of the Parliament within 15 sitting days of the House after they
have been made. Where this is not done within the required time they cease
to have effect. A disallowable instrument or a regulation may be disallowed
where notice of motion to disallow has been given in either House of Parliament
within 15 sitting days after it has been laid before that House, either
by the motion being agreed to or by the notice remaining extant following
a further 15 sitting days from the date the notice was given. This is
provided by the Acts Interpretation Act ss 48(1)(c), 48(3), 48(4) and
48(5). A disallowable instrument or regulation ceasing to have effect
or disallowed under these provisions, where that instrument or regulation
repealed in whole or in part an earlier instrument, has the effect of
reviving the earlier instrument (see s.48(7)). There are restrictions
on remaking an instrument or regulation in specified circumstances which
are intended to prevent any evasion of the consequences of the tabling
and disallowance provisions (see ss 48A, 48B and 49).
Yours sincerely
Don Markus
General Counsel
Department of Communications and the Arts
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