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AUSTRALIAN POSTAL CORPORATION AMENDMENT REGULATIONS 2009 (NO. 1) (SLI NO 79 OF 2009)
EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 79
Issued by the Authority of the Minister for Broadband, Communications and the Digital Economy
Australian Postal Corporation Amendment Regulations 2009 (No. 1)
Section 102 of the Australian Postal Corporation Act 1989 (the Act) provides, in part, that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Act provides for the creation and functioning of the Australian Postal Corporation (Australia Post). The Act also provides for the terms and conditions that will apply to services supplied by Australia Post, including bulk mail interconnection services, under which bulk quantities of mail are delivered within Australia at discounted rates. The Act also provides for inquiries by the Australian Competition and Consumer Commission (the ACCC) into disputes about bulk mail interconnection services.
The amending Regulations amend the Australian Postal Corporation Regulations 1996 (the Principal Regulations) to enable the ACCC to inquire into a broader range of disputes involving bulk mail interconnection services to reflect amendments made to the Act in 2004 and to be consistent with the ACCC’s dispute resolution functions in relation to other industries under the Trade Practices Act 1974. This will streamline the dispute process and provide the ACCC with greater flexibility in the conduct of an inquiry into these services. The amending Regulations also correct a minor error in the Principal Regulations.
Background on the amending Regulations is included in Attachment A and further details are set out in Attachment B.
The amending Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA) (see paragraph 6(1) of the LIA).
In developing the amending Regulations, the Department has consulted with all parties directly affected by the Regulations as follows:
The ACCC and MMUA were supportive of the changes being proposed. Australia Post noted, however, that the dispute resolution regime proposed for bulk mail services is more stringent than currently applies to other regulated industries.
The amending Regulations commences on the day after they are registered on the Federal Register of Legislative Instruments.
ATTACHMENT A
Background on amending Regulations
Section 32A of the Act provides for bulk mail interconnection services. These are services under which bulk quantities of mail are delivered within Australia at discounted rates. The discounted rates apply if the letters have been sorted in accordance with the terms and conditions for accessing the service and have been lodged at a specified post office. They are provided in recognition that the customer has performed certain functions which may ordinarily be performed by Australia Post.
Section 32B of the Act provides for regulations to allow the ACCC to inquire into disputes between Australia Post and a person using the bulk mail service.
Prior to amendments to the Act in 2004, the Principal Regulations could only provide for inquiries into disputes about the “rate reduction” being offered for bulk mail services and the period in which the service will be supplied at the reduced rate. The Act was amended by the Postal Services Legislation Amendment Act 2004 (PSLA Act) to expand the scope of the regulation making power so that regulations may now provide for inquiries into disputes about all of the terms and conditions for bulk mail services (including the amount of rate reduction).
The amending Regulations reflect the amendments made to the Act and expand the powers of the ACCC so that it can inquire into disputes about all of the terms and conditions of bulk mail services and not just the rate reduction that will apply to a service or the period during which the service will be supplied at the reduced rate. For example, the ACCC may recommend that Australia Post should not impose unreasonable lodgement times (for example, 2 am) or unreasonable lodgement numbers (for example, over 100,000 articles).
The second element of the amending Regulations is to align the Principal Regulations, where possible, with the access dispute processes for other industries under Parts IIIA and XIC of the Trade Practices Act 1974 (the TPA). This will streamline the dispute process and provide the ACCC with greater flexibility in the conduct of an inquiry in its new more expanded role.
Finally, the amending Regulations correct an error in paragraph 3H(b) which was inserted by the Australian Postal Corporation Amendment Regulations 2008 (No. 1). Paragraph 3H(b) confuses the function of the quarantine inspection officer with that of the authorised examiner in the context of the opening and examination of certain postal articles. The amending Regulations correct this error.
In order to align the Principal Regulations with access dispute processes contained in the TPA, the amending Regulations include provisions which:
· allow other parties with a sufficient interest in the dispute to be joined in an inquiry (thereby minimising the need to conduct multiple inquiries);
· extend the time within which an inquiry must be completed from 30 to 60 days and allow the ACCC to extend this by a further period of 30 days to provide consistency with the timeframes for other ACCC dispute resolution mechanisms;
· create an offence for failure by a party to a dispute to comply with a notice to provide information to the ACCC. This will provide consistency with other ACCC information gathering powers under the TPA;
· require the ACCC to discontinue an inquiry where the complainant accepts an offer from Australia Post during the inquiry only if satisfied the offer is fair and reasonable. This will enable the ACCC to continue with an inquiry until it considers that a fair and reasonable outcome has been achieved; and
· remove the restriction on the ACCC’s ability to recommend a greater rate reduction or longer period of supply than proposed by the complainant. This will remove an unnecessary restriction on the ACCC’s ability to make recommendations that it considers appropriate in the circumstances.
ATTACHMENT B
Details of the Australian Postal Corporation Amendment Regulations 2009 (No. 1 )
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Australian Postal Corporation Amendment Regulations 2009 (No. 1).
Regulation 2 – Commencement
This regulation provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.
Regulation 3 – Amendment of Australian Postal Corporation Regulations 1996
This regulation provides that Schedule 1 to the Regulations amends the Australian Postal Corporation Regulations 1996.
Schedule 1 - Amendments
Item 1 – Paragraph 3H(b)
Existing paragraph 3H(b) confuses the function of a quarantine inspection officer with that of an authorised examiner. As outlined in section 90U of the Act, a quarantine inspection officer may request an authorised examiner to open certain postal articles. The quarantine inspection officer may then examine the article to check whether it consists of, or contains, quarantine material.
Existing paragraph 3H(b) erroneously states that the authorised examiner examines the article.
Item 1 corrects this error and provides that the authorised examiner opens the article in the presence of the quarantine inspection officer and the quarantine inspection officer then examines the article.
Item 2 – Subparagraphs 6(a)(i) and (ii)
Item 3 – Paragraph 6(b)
Existing regulation 6 sets out the objects of this Part of the Principal Regulations. These are to ensure that persons who use a bulk mail interconnection service receive fair and reasonable rate reductions by making provision for the ACCC to inquire into disputes about the rate reductions for these services. The inquiry is to be conducted in a fair, economical and quick manner.
Item 2 expands the objects of the Part to enable the ACCC to inquire into the terms and conditions on which a rate reduction is, or would be, provided to a person (including the amount of the rate reduction).
Item 3 provides that the inquiry is to be conducted in an “efficient and timely” manner rather than a manner that is “economical and quick” to reflect a balance between the need for the ACCC to have sufficient time to conduct an inquiry and the need for the timely resolution of a dispute.
Item 4 – Paragraph 8(b)
Item 5 – After paragraph 8(b)
Existing regulation 8 specifies that the complainant who notified the dispute and Australia Post are the parties to an inquiry.
Items 4 and 5 provide that any other person who applies in writing may also be made a party where the ACCC accepts that this person has a ‘sufficient interest’. In determining whether a person has a sufficient interest, the ACCC would require that interest to relate to the specific dispute that is the subject of the inquiry. A precedent effect of a recommendation would not, of itself, be a sufficient interest.
Item 6 – Paragraph 9(1)(b)
Existing paragraph 9(1)(b) allows a person who is unable to agree with Australia Post on the rate reduction that will apply to the bulk interconnection service or the period in which the service will be supplied at the reduced rate, to notify the ACCC of the dispute.
Item 6 extends paragraph 9(1)(b) by providing that a person who is unable to agree with Australia Post on the terms and conditions (including the amount of the rate reduction and the period for which it will apply) on which a rate reduction is or will be provided to the person for the bulk interconnection service to notify the ACCC of the dispute.
Item 7 – After subparagraph 9(2)(b)(ii)
Item 8 – After subparagraph 9(2)(c)(ii)
Existing subregulation 9(2) specifies the information that must be contained in a dispute notice.
Under subparagraphs 9(2)(b)(i) and (ii), the information required includes the amount that the complainant proposes should apply (if it is a dispute about the rate reduction) and period during which the complainant proposes that the service should be supplied for (if the dispute relates to the period).
Under subparagraphs 9(2)(c)(i) and (ii), the information required also includes the rate reduction that Australia Post has offered for the supply of the service and the period during which Australia Post has offered to supply the service at the reduced rate.
Items 7 inserts subparagraph 9(2)(b)(iii) which specifies that if any other terms and conditions on which the rate reduction is or would be provided are in dispute, the notice must state the terms and conditions that the complainant proposes.
Item 8 inserts paragraph 9(2)(c)(iii) which specifies that the dispute notice must state the terms and conditions to which Australia Post’s offer is subject.
Item 9 – Subparagraph 10(b)(ii)
Item 10 – After paragraph 10(b)
Existing regulation 10 stipulates that the ACCC must give written notice of a dispute and specified information about the inquiry into the dispute to the complainant and Australia Post.
Items 9 and 10 extend regulation 10 to allow the ACCC to give written notice of the dispute to any other person the ACCC thinks might want to become a party to the inquiry and to give notice of the dispute to the public in such manner as it thinks fit.
Item 11 – Subregulation 14(2)
Existing subregulation 14(2) provides that an inquiry must be completed within 30 days.
Item 11 extends the timeframe for conducting an inquiry from 30 to 60 days. This allows sufficient time for the ACCC to meet its expanded responsibilities under the Regulations.
Item 12 – Subregulations 14(3) and (4)
Existing subregulation 14(3) provides that the ACCC may, with the written consent of the parties, extend the period within which the inquiry is to be completed by 30 days. Under existing subregulation 14(4), if the inquiry period is extended, the ACCC is required to notify the Minister of the extension and of the reasons for the extension.
Item 12 removes the requirement for the ACCC to obtain the consent of the parties before extending the inquiry period, and inserts a requirement that the ACCC must notify the parties as well as the Minister if it extends the inquiry period.
Item 13 – After subregulation 15(1)
Existing regulation 15 specifies the constitution of the ACCC for the purposes of an inquiry.
Item 13 inserts a new subregulation 15(1A) which provides that the Commissioners are not disqualified from hearing a matter because they have previously considered a matter relating to the dispute or another matter involving a party to the dispute. This is intended to assist the Commissioners to develop a greater level of understanding of Australia Post’s operations.
Item 14 – Subregulation 18(1)
Existing regulation 18 provides that the ACCC may conduct joint inquiries where it considers it appropriate because the disputes involve similar issues and the complainant is the same person.
Item 14 amends the regulation to allow the ACCC to conduct a joint inquiry where either the dispute involves similar issues or the complainant in each dispute is the same person. This provides the ACCC with greater flexibility and is consistent with the objects of Part 3 of the Principal Regulations that require an inquiry to be conducted in a manner that is efficient and timely.
Item 15 – After regulation 18
Item 15 inserts a new regulation 18A to allow information obtained by the ACCC under Part VIIA of the Trade Practices Act 1974 (which deals with prices surveillance) to be taken into account during an inquiry into a bulk interconnection service if the ACCC thinks that the information is relevant to the inquiry. The new regulation will offer greater flexibility to the ACCC in the use of its resources and assist it to meet its obligations under the Act.
Item 16 – Subregulation 19(4), notes
Item 17 – After subregulation 19(4)
Regulation 19 concerns the ACCC’s power to obtain information and documents.
Item 16 provides that the notes at the end of regulation 19 are omitted. Item 17 inserts a new subregulation 19(5) and reinserts those notes together with some new notes at the end of new subregulation 19(5). The new notes refer to possible offences under the Criminal Code for giving false or misleading information and include information about penalties.
Item 17 inserts a new subregulation 19(5) which provides that it is an offence if a party who has been given a notice under subregulation 19(1) to provide information or produce documents is able to provide the information or document specified in the notice at the place and in the time specified, but fails to do so. The penalty for this offence is 10 penalty units. A penalty unit is $110 (section 4AA Crimes Act 1914).
Item 18 – Subparagraph 22(1)(a)(ii)
Item 19 – After subparagraph 22(1)(a)(ii)
Existing regulation 22 provides that where a complainant accepts an offer from Australia Post of a rate reduction or a variation of the period in which the bulk interconnection service is to be provided, the complainant must give written notice of the acceptance of the offer to the ACCC.
As the amending Regulations extend the powers of the ACCC to inquire into disputes about any of the terms and conditions on which a rate reduction is available, Items 18 and 19 insert a new subparagraph 22(1)(a)(iii) to reflect this in the context of dispute compromises. Subparagraph 22(1)(a)(iii) provides that where the complainant accepts an offer from Australia Post of any other variation in terms and conditions on which the service is to be provided, the complainant must notify the ACCC.
Item 20 – Paragraph 23(1)(a)
Item 21 – After paragraph 23(1)(a)
Existing paragraph 23(1)(a) provides that the ACCC must discontinue an inquiry in specified circumstances, including where it has been notified by the complainant, in accordance with subregulation 22(1) that the complainant has accepted an offer from Australia Post to settle the dispute.
Items 20 and 21 remove the requirement for the ACCC to discontinue an inquiry where the complainant accepts an offer from Australia Post. This addresses the situation where a complainant may be pressured into accepting an unsatisfactory settlement. The ACCC may continue an inquiry until it is satisfied that the offer from Australia Post is fair and reasonable.
Item 22 – Subparagraph 27(2)(a)(ii)
Item 23 – After subparagraph 27(2)(a)(ii)
Existing regulation 27 requires the ACCC to provide a report on an inquiry to the Minister within the time prescribed for the inquiry. The report must recommend the amount of rate reduction, or period of rate reduction, that should apply to the bulk interconnection service and provide reasons for the recommendation.
Items 22 and 23 insert a new subparagraph 27(2)(a)(iii) to address the situation where the inquiry relates to terms and conditions other than the rate reduction or period of rate reduction. This subparagraph provides that if any other terms and conditions are in dispute, the report must recommend the terms and conditions on which the bulk interconnection service should be supplied to the complainant at the reduced rate.
Item 24 – Regulation 28
Existing regulation 28 provides that the ACCC cannot make a rate reduction recommendation or period of rate reduction recommendation that exceeds the rate reduction or period proposed by the complainant.
Item 24 provides for regulation 28 to be omitted from the Principal Regulations. This will remove the restrictions on the ACCC’s ability to make such recommendations and enable the ACCC to make recommendations it considers are fair and reasonable. The removal of this restriction is consistent with one of the objects of the Principal Regulations which is to ensure that persons who use a bulk interconnection service receive fair and reasonable rate reductions
Item 25 – Regulation 30
Item 26 – Regulation 30
Existing regulation 30 allows the Minister to give a direction to Australia Post to act in accordance with recommendations made by the ACCC in a report.
Items 25 and 26 insert a requirement that the Minister consult with the Board of Australia Post before giving such a direction and that the recommendation must be consistent with subsection 32A(2) of the Act. Subsection 32A(2) of the Act specifies some of the terms and conditions that apply to a bulk interconnection service.
Item 27 – Paragraph 31(c)
Existing regulation 31 provides that in deciding whether to give a direction, the Minister is required to take certain factors into account including reasons given by the ACCC for making the recommendations to which the direction relates, the obligations of Australia Post under the Act and any other relevant matter.
Item 27 inserts a new paragraph 31(c) which adds the requirement for the Minister to take into account the response, if any, of the Board as a result of the consultation process required under regulation 30.
Item 28 – Subregulation 32(1)
Existing regulation 32 provides that notice of a direction must be given to Australia Post within 21 days of receipt by the Minister of the report containing the recommendation.
Item 28 extends this timeframe to 28 days.