Postal Services Legislation Amendment Act 2004 (Cth)

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Postal Services Legislation Amendment Act 2004

No. 69, 2004

An Act to amend legislation relating to postal services, and for related purposes

Contents

Postal Services Legislation Amendment Act 2004

No. 69, 2004

An Act to amend legislation relating to postal services, and for related purposes

[Assented to 22 June 2004]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Postal Services Legislation Amendment Act 2004.

2Commencement

This Act commences on the day on which it receives the Royal Assent.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

4Application and saving provision

ACCC’s new obligation

The Australian Competition and Consumer Commission must fulfil its obligation under subsection 50H(2) of the Australian Postal Corporation Act 1989, as inserted by item 21 of Schedule 1, within 12 months of the commencement of this Act.

Schedule 1Amendments

Australian Postal Corporation Act 1989

7

Section 3

Insert:

ACCC means the Australian Competition and Consumer Commission.

11

After paragraph 30(1)(ha)

Insert:

(hb) the carriage of a letter to the provider of an aggregation service, for the purposes of aggregation in order to use a bulk interconnection service (within the meaning of section 32A);

12

At the end of paragraph 30(1)(ma)

Add:

  1. ; or (iii)

    from a member of the service to a service centre of the service (subject to subsection (1C)); or

  2. (iv)

    from a service centre of the service to a member of the service (subject to subsections (1C) and (1D));

13

After subsection 30(1A)

Insert:

  1. (1AA)

    For the purposes of paragraph (1)(hb), an aggregation service is a service:

    1. (a)

      that aggregates letters from different senders; and

    2. (b)

      that is offered in order to allow the senders to use a bulk interconnection service (within the meaning of section 32A).

14

After subsection 30(1B)

Insert:

  1. (1C)

    Carriage of a letter between a service centre of a document exchange service and a person who is a member of the service is only covered by subparagraph (1)(ma)(iii) or (iv) if, at the time of the carriage, all of the following apply:

    1. (a)

      the person chose to become a member of the service by applying directly to the provider of the service;

    2. (b)

      the terms and conditions on which the service is provided require the person to pay a fee periodically (at least annually) to remain a member;

    3. (c)

      the person has a unique identifier that:

      (i) is not a postal address; and

      1. (ii)

        does not include a street name;

    for the purposes of sending and receiving letters carried by the service;

    1. (d)

      the person is entitled to send and receive letters carried by the service;

    2. (e)

      there is a separate receptacle at a service centre of the service for the lodgment and collection of letters carried by the service that are sent to the person or sent by the person;

    3. (f)

      the person is a government agency, partnership, educational institution, health or community service provider, charity, religious institution or other person carrying on a business or other undertaking not of a private or domestic nature.

  2. (1D)

    Carriage of a letter from a service centre of a document exchange service to a person who is a member of the service is not covered by subparagraph (1)(ma)(iv) if the sender has addressed the letter using only a postal address.

14A

After section 30

Insert:

30AEnforcement for infringement of reserved services

  1. (1)

    A person shall not engage in conduct that involves an infringement of Australia Post’s exclusive right to undertake the reserved services.

  2. (2)

    If the Federal Court is satisfied that a person has contravened subsection (1), the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

  3. (3)

    In determining the pecuniary penalty, the Court must have regard to all relevant matters, including:

    1. (a)

      the nature and extent of the contravention; and

    2. (b)

      the nature and extent of any loss or damage suffered as a result of the contravention; and

    3. (c)

      the circumstances in which the contravention took place; and

    4. (d)

      whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

  4. (4)

    The pecuniary penalty payable under subsection (2) by a body corporate is not to exceed $250,000 for each contravention.

  5. (5)

    The pecuniary penalty payable under subsection (2) by a person other than a body corporate is not to exceed $50,000 for each contravention.

  6. (6)

    The Minister or the ACCC may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in subsection (2).

  7. (7)

    A proceeding under subsection (6) may be commenced within 6 years after the contravention.

  8. (8)

    For the avoidance of doubt, the remedy in this section is in addition to that provided in section 31 of this Act.

15

Section 32B

Omit “Australian Competition and Consumer Commission” (wherever occurring), substitute “ACCC”.

Note: The heading to section 32B is altered by omitting “interconnection”.

16

Subparagraphs 32B(1)(a)(i) and (ii)

Repeal the subparagraphs, substitute:

(i) to inquire into a dispute, between Australia Post and a person who is obtaining or who wishes to obtain a rate reduction for the delivery of bulk quantities of letters by Australia Post in return for performing functions in relation to the letters that may be performed by Australia Post, about the terms and conditions on which a rate reduction is or would be provided to the person (including the amount of the rate reduction); and

  1. (ii)

    to make a recommendation to the Minister about those terms and conditions; and

17

Paragraph 32B(1)(f)

Repeal the paragraph, substitute:

  1. (f)

    that, despite section 49, the Minister may, if the Minister thinks fit and after consultation with the Board, direct Australia Post to act in accordance with a recommendation made by the ACCC under subparagraph (a)(ii); and

18

After subsection 32B(1)

Insert:

  1. (1A)

    Regulations made under paragraph (1)(f) must not authorise the making of directions that are inconsistent with subsection 32A(2).

21

After Part 4

Insert:

Part 4A—Monitoring of Australia Post

Division 2—Role of the ACCC

50HACCC may require Australia Post to keep records

  1. (1)

    The ACCC may require Australia Post to keep records:

    1. (a)

      about the matters specified by the ACCC; and

    2. (b)

      in the manner and form specified by the ACCC.

  2. (2)

    Without limiting subsection (1), the ACCC must require Australia Post to keep records about its reserved services.

  3. (3)

    Australia Post must give the ACCC:

    1. (a)

      copies of records kept under subsections (1) and (2); or

    2. (b)

      details about information contained in those records;

on request by the ACCC:

  1. (c)

    in the manner and form specified by the ACCC; and

  2. (d)

    within the time specified by the ACCC.

  1. (4)

    The ACCC may only require Australia Post to keep records under subsection (1) about matters that are relevant to the following:

    1. (a)

      the performance of the ACCC’s functions in relation to prices surveillance and to section 32B of this Act;

    2. (b)

      the financial relationship between parts of Australia Post’s business that relate to reserved services and parts that do not;

    3. (c)

      the financial relationship between different parts of Australia Post’s business that relate to reserved services.

50IACCC may publish reports analysing records

The ACCC may prepare and publish reports analysing information given to the ACCC under subsection 50H(3).

50JMinister may direct ACCC to report

  1. (1)

    The Minister may direct the ACCC to do either or both of the following:

    1. (a)

      prepare;

    2. (b)

      publish;

a report analysing the information in records kept under subsections 50H(1) and (2).

  1. (2)

    The ACCC must comply with a direction under subsection (1).

50KPublication of confidential information

A report published under section 50I or 50J may include information that Australia Post claims is commercial‑in‑confidence information if the ACCC is satisfied:

  1. (a)

    that the claim is not justified; or

  2. (b)

    that it is in the public interest to publish the information.

22

After section 56

Insert:

56ARecovery of costs incurred by the ACCC

Minister may estimate costs for financial year

  1. (1)

    The Minister may, during a financial year:

    1. (a)

      estimate the ACCC’s costs for that financial year; and

    2. (b)

      notify Australia Post of the Minister’s estimate.

Minister may determine actual costs for previous financial year

  1. (2)

    The Minister may, in a financial year, determine the ACCC’s actual costs for the previous financial year.

Minister may direct Australia Post to pay adjusted estimated costs to ACCC

  1. (3)

    The Minister may, in a financial year, direct Australia Post to pay to the ACCC, on behalf of the Commonwealth, the Minister’s estimate of the ACCC’s costs for that financial year, adjusted in accordance with subsection (7) or (8).

Adjustment for ACCC

  1. (7)

    If:

    1. (a)

      in the previous financial year, the Minister directed Australia Post to pay an amount to the ACCC; and

    2. (b)

      the Minister determines that the ACCC’s actual costs for that previous financial year exceed the costs the Minister estimated for the ACCC that year;

the amount the Minister may direct Australia Post to pay to the ACCC under subsection (3) is increased by that excess.

  1. (8)

    If:

    1. (a)

      in the previous financial year, the Minister directed Australia Post to pay an amount to the ACCC; and

    2. (b)

      the Minister determines that the ACCC’s actual costs for that previous financial year fall short of the costs the Minister estimated for the ACCC that year;

the amount the Minister may direct Australia Post to pay to the ACCC under subsection (3) is reduced by that shortfall.

Note: Because the ACCC is a prescribed agency for the purposes of the Financial Management and Accountability Act 1997, its officials are required to deal with amounts received under subsection (3) in accordance with that Act.

Costs

  1. (9)

    In this section:

ACCC’s costs means the costs of the ACCC in performing its functions under this Act.

costs means an amount that, in accordance with accrual‑based accounting principles, is treated as a cost.

23

Paragraph 90J(6)(c)

Repeal the paragraph, substitute:

  1. (c)

    the Crime and Misconduct Act 2001 of Queensland; or

24

Paragraph 90LC(5)(c)

Repeal the paragraph, substitute:

  1. (c)

    the Crime and Misconduct Act 2001 of Queensland; or

Trade Practices Act 1974

25

Subsection 25(1)

Omit “or Rules of Conduct under Part 20 of the Telecommunications Act 1997”, substitute “, Rules of Conduct under Part 20 of the Telecommunications Act 1997 or the Australian Postal Corporation Act 1989”.

[Minister’s second reading speech made in—

House of Representatives on 19 June 2003

Senate on 1 March 2004]

(92/03)

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