Bills Digest no. 59 2007–08
Trade Practices Amendment (Access Declarations) Bill
2008
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Contact officer & copyright details
Passage history
Trade Practices Amendment (Access
Declarations) Bill 2008
Date
introduced: 13
February 2008
House: House of Representatives
Portfolio: Broadband, Communications and the
Digital Economy
Commencement:
On the day on which it
receives the Royal Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
To amend Part XIC the Trade
Practices Act 1974 to make clear that access declarations and
notices intended to extend the period of access declarations are
not legislative instruments for the purpose of the Legislative
Instruments Act 2003. The Bill also has retrospective
effect.
Delegated legislation involves legislation made by a person or
body under authority granted to that person or body by an Act of
Parliament. Individually, it is variously known by titles such as
regulations, by-laws, rules and ordinances. Collectively they are
variously referred to as subordinate legislation, statutory rules
and legislative instruments.[1]
The Legislative Instruments Act 2003 (the Legislative
Instruments Act) defines a legislative instrument as an instrument
of a legislative character that is, or was, made under a delegation
of power from Parliament .[2] An instrument has a legislative character if it
determines or alters the content of the law rather than applying
the law in a particular case; and if it affects a privilege or
interest, imposes an obligation, or creates, varies or removes a
right.[3]
The definition of a legislative instrument is a comprehensive
one. It concentrates on the legislative character of the instrument
that is, what the instrument does rather than what
it is called. In that way, the Legislative
Instruments Act captures a multitude of quasi-legislative
instruments within its scope that were not previously subject to
statutory tabling and/or disallowance obligations.[4]
Relevant key features of the Legislative Instruments Act are as
follows:
- It provides for the establishment of a Federal Register of
Legislative Instruments (the Register).[5]
- All legislative instruments must be recorded
on the Register. If an instrument is not registered then it is
unenforceable.[6]
- It deems certain instruments to be legislative instruments,
including regulations, statutory rules, ordinances and
proclamations.[7]
- Any instrument that is entered on the Register is also deemed
to be a legislative instrument.[8]
- It declares that certain instruments are not legislative
instruments.[9] These
include private and public taxation rulings, laws of a
self-governing territory, and employment awards and orders.
In September 2007 the Federal Court considered the matter of
Roche Products Pty Ltd v National Drugs and Poisons Schedule
Committee (the Roche Products case).[10]
Roche Products Pty Limited (Roche) is the sponsor of the weight
loss drug orlistat, marketed as Xenical. Since 1 May 2004, Xenical
had been available to consumers through pharmacies without
prescription for the treatment of excessive body weight. From 1
September 2006 Roche was permitted by the National Drugs and
Poisons Schedule Committee (the Committee) to advertise Xenical
directly to consumers, with the drug being included in Appendix H
of the Poisons Standard.
Subsequently Roche conducted a large scale television campaign
which generated numerous public complaints with significant
criticism from the Australian Consumer Association and the AMA. In
light of that criticism, the Committee reviewed and reversed its
original decision to include orlistat in Appendix H of the
Standard.
Roche applied to the Federal Court challenging this decision on
the basis that the Committee had made errors in law under sections
52C, 52D and 52E of the Therapeutic Goods Act 1989
(Cth).
As a preliminary matter the Federal Court considered whether the
decision by the Committee had been administrative or legislative in
character. Looking at what the decision does
rather than what it is called the Federal Court
concluded that it was legislative in character. It based its
conclusion on the fact that, amongst other things, the decision of
the Committee to include a substance in a particular schedule of
the Poisons Standard determines the future lawfulness of conduct in
relation to that substance.[11] In addition the Federal Court recognised that the
Poisons Standard is an important element of a national system of
controls relating to the quality, safety, efficacy and timely
availability of therapeutic goods. It also forms part of a
framework for the States and Territories to adopt a uniform
approach to the control and regulation of poisons in
Australia.[12]
The consequence of this decision was that every decision by the
Committee under section 52B(2) of the Therapeutic Goods Act
1989 is a legislative instrument and is, therefore, required
to be recorded on the Register.
The Trade Practices Amendment (Telecommunications) Bill 1996
inserted Part XIC into the Trade Practices Act 1974
(TPA).
Part XIC sets out an access regime for the telecommunications
industry. The regime provides for the declaration of carriage
services and related services by the Australian Competition and
Consumer Commission (ACCC) after a public inquiry in accordance
with section 505 of the Telecommunications Act
1997.[13] Once
declared, standard access obligations[14] apply to carriers or carriage service
providers supplying those services, unless an exemption
applies.[15]
Section 152ALA of the TPA provides that a declaration under
section 152AL must specify an expiry date for the declaration. That
date must occur in the 5-year period beginning when the declaration
was made.
Subsection 152ALA(4) provides that the ACCC may, by notice
published in the Gazette, extend or further extend the
expiry date of a specified declaration under section 152AL so long
as the extension or further extension is for a period of not more
than 5 years.
There are a number of access declarations
currently in force, such as the High Frequency Unconditioned
Local Loop Service and the Domestic Digital Mobile Terminating
Access Service. On the understanding that access declarations are
not legislative instruments for the purposes of the Legislative
Instruments Act, the ACCC has not registered any access
declarations on the Register.[16]
Following on the Roche Products case, there was concern that
access declarations which were made by the ACCC under Part XIC of
the TPA were legislative in character and so fell within the
definition of a legislative instrument in the Legislative
Instruments Act. If that was so, then the failure to record access
declarations on the Register may have the unintended consequence
that they are unenforceable. Thus any legal action to, say, impose
access obligations on carriers or providers on the basis of an
existing Part XIC declaration could potentially be blocked or
overturned by a court. If that were to occur, the existing
telecommunications access regime would be rendered inoperative.
The objective of the Bill is to provide certainty to the
telecommunications sector by providing that access declarations and
extensions of periods of access are not legislative
instruments.[17]
Furthermore, the Bill has retrospective effect it provides that
declarations and extensions of periods of access dating from before
the commencement of the Bill should also be deemed not to have been
legislative instruments.
There is no information to indicate that the Bill has been
referred to any Committee.
Whilst the Explanatory Memorandum states the Bill is not
expected to have any financial impact on Commonwealth expenditure
or revenue, it is notable that it does have provision (item3 ) for
the payment of compensation if its operation does result in the
acquisition of property other than on just terms.[18] There is no information provided
as to whether any acquisition is likely to occur, and if so, what
the value of such property might be.
Item 1 of the Bill adds
subsections 152AL(9) to (14) after existing subsection
152AL(8).
The proposed amendments provide that the following are not and
never were legislative instruments for the purposes of the
Legislative Instruments Act:
- an existing access declaration under section 152AL:
proposed subsection 152AL(9)
- a variation of an existing access declaration: proposed
subsection 152AL(10)
- a revocation of a declaration: proposed subsection
152AL(11)
- a declaration which was made and ceased before the commencement
of the proposed amendments: proposed paragraphs
152AL(12)(a), (b) and (c)
- a variation or revocation of a declaration made before the
commencement of the proposed amendments: proposed paragraph
152AL(12)(d)
Item 2 of the Bill adds
subsections 152ALA(10) to (13) after existing subsection
152ALA(9).
Proposed subsection
152ALA(10) provides that
a notice extending an expiry date issued in accordance with
subsection 152ALA(4) is not and never has been a legislative
instrument for the purposes of the Legislative Instruments Act:
Where, before the commencement of the proposed
amendments
- an access declaration was made and
- a notice extending the expiry date of an access declaration was
published and
- the access declaration ceased to be in force
then, according to proposed subsection
152ALA(11), the notice
is taken to never have been a legislative instrument.
Item 3 inserts proposed
section 152AQC at the end of Division 2 of Part XIC of the
TPA.
Under proposed subsection
152AQC(1), if the operation of any of the proposed
amendments in items 1 and 2 result in an acquisition of property
from a person otherwise than on just terms , then the Commonwealth
is liable to pay a reasonable amount of compensation to the person.
In circumstances where the parties are unable to agree on the
amount of compensation, proposed
subsection 152AQC(2) provides that the person from
whom the property has been acquired may take action against the
Commonwealth in the Federal Court.
Proposed subsection 152AQC(3)
inserts definitions of the terms acquisition of property and just
terms so that they have the same meaning as in paragraph 51(xxxi)
of the Constitution.
There is, entrenched in section 51(xxxi) of the Constitution, a
guarantee which stipulates that property acquired by the
Commonwealth Government must be acquired on just terms .
In Grace Bros Pty Ltd v Commonwealth [19], Dixon
J said that the inquiry about just terms should not just be
directed to the question of whether the individual owner is placed
in a situation in which in all respects he will be as well off as
if the acquisition had not taken place.
The inquiry must rather be whether the law amounts
to a true attempt to provide fair and just standards of
compensating or rehabilitating the individual considered as an
owner of property, fair and just as between him and the government
of the country. I say the individual because what is just as
between the Commonwealth and a State, two Governments, may depend
on special considerations not applicable to an individual.[20]
Quick and Garran[21] have remarked that it was legitimate to take into
account any offsetting benefits the owner realised as a result of
the scheme involving the expropriation, but in some cases the High
Court has taken a view more favourable to the property owner. For
example in Georgiadis, Brennan J stated:
In determining the issue of just terms, the court
does not attempt a balancing of interests of the dispossessed owner
against the interests of the community at large. The purpose of the
guarantee of just terms is to ensure that the owners of property
compulsorily acquired by government presumably in the interests of
the community at large are not required to sacrifice their property
for less than its worth. Unless it is shown that what is gained is
full compensation for what is lost, the terms cannot be found to be
just.[22]
Proposed subsection 152AQC(1) refers to an
acquisition otherwise than on just terms in the context of section
51(xxxi) of the Constitution but then provides that the
Commonwealth is liable to pay a 'reasonable amount of
compensation'. It should be noted that this subsection:
- does not specifically apply paragraph 51(xxxi) Constitution to
the acquisition
- does not require just terms
- provides that the Commonwealth is liable to pay a reasonable
amount of compensation , as distinct from just terms .
It should be noted, however, that use of such a
provision is commonplace, for example, section 519 of the
Environment Protection and Biodiversity Conservation Act
1999 and in section 60 of the Northern Territory
Emergency Response Act 2007.
Paula Pyburne
21 February 2008
Bills Digest Service
Parliamentary Library
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