If there are particular areas of the Australian economy that are regarded as so important so as to the exclude the operation of the relevant legislation (and I argue that there can be very few if any that should be given that special treatment) then it is more appropriate for the legislation to clearly indicate why that particular area should be excluded from the operation of legislation. In that context, the Government should be asked to provide compelling reasons as to why the legislation is necessary. In my view there should be no reason why the relevant State /Territory government should be given that power in relation to matters that come within the jurisdiction of the Commonwealth. A competition/public interest impact statement must be prepared. In the event that this argument is not acceptable, the legislation should be amended to make it mandatory for the relevant Minister in wishing to override the relevant decision taken by the Council, the Tribunal (or whoever is relevant) to set out in detail why that decision has been taken. Regrettably the proposition that legislation when proposed should be supported by what is in effect a compelling cost benefit analyses and reasons for the legislation is given lip service to in Australia. A similar approach in my view should be taken if the relevant Minister wishes to override any decision taken by the relevant body. Governments will always reserve to themselves the power to introduce legislation in extreme situations; it is unlikely that we should see such extreme situations arising in the context of the access regime. Furthermore, the failure to require proper reasons being given for the veto power being exercised makes mockery of the principles behind the philosophy underpinning the current legislation.
If there are particular areas of the Australian economy that are regarded as so important so as to the exclude the operation of the relevant legislation (and I argue that there can be very few if any that should be given that special treatment) then it is more appropriate for the legislation to clearly indicate why that particular area should be excluded from the operation of legislation. In that context, the Government should be asked to provide compelling reasons as to why the legislation is necessary. In my view there should be no reason why the relevant State /Territory government should be given that power in relation to matters that come within the jurisdiction of the Commonwealth. A competition/public interest impact statement must be prepared. In the event that this argument is not acceptable, the legislation should be amended to make it mandatory for the relevant Minister in wishing to override the relevant decision taken by the Council, the Tribunal (or whoever is relevant) to set out in detail why that decision has been taken. Regrettably the proposition that legislation when proposed should be supported by what is in effect a compelling cost benefit analyses and reasons for the legislation is given lip service to in Australia. A similar approach in my view should be taken if the relevant Minister wishes to override any decision taken by the relevant body. Governments will always reserve to themselves the power to introduce legislation in extreme situations; it is unlikely that we should see such extreme situations arising in the context of the access regime. Furthermore, the failure to require proper reasons being given for the veto power being exercised makes mockery of the principles behind the philosophy underpinning the current legislation.
sub033-access-regime.docx