Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
TELECOMMUNICATIONS UNIVERSAL SERVICE MANAGEMENT
AGENCY BILL 2011
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
TELECOMMUNICATIONS UNIVERSAL SERVICE MANAGEMENT
AGENCY BILL 2011
OUTLINE
The Telecommunications Universal Service Management Agency Bill 2011 (the Bill) forms
part of a package of legislation to achieve continuity of key telecommunications safeguards
in the transition to the National Broadband Network (NBN).
The Bill provides for the establishment of the Telecommunications Universal Service
Management Agency (TUSMA) as the statutory agency that will have the responsibility for
the effective implementation and administration of service agreements that deliver universal
service and other public policy telecommunications outcomes.
The proposed amendments fall into three groups. First, the amendments provide for
disclosure and consent powers relating to the achievement of the `voice customer migration
policy objective', which is a key component of the broader policy objective described in
paragraph 11(e) of the Bill. Second, the amendments enable TUSMA to provide information
to the Telecommunications Industry Ombudsman (TIO), the Regional Telecommunications
Independent Review Committee (RTIRC) and the `Secretary of the Department' (currently
the Secretary of the Department of Broadband, Communications and the Digital Economy).
Third, the Bill replaces `economics' with `consumer affairs' as one of the alternative five
fields a person is required to have experience or knowledge in, as well as significant standing,
in order for that person to be eligible for appointment as a TUSMA member.
Voice Customer Migration Policy Objective amendments
Under the Bill, TUSMA may enter into contracts or make grants of financial assistance under
clause 13 of that Bill for a purpose relating to the achievement of any or all of the policy
objectives, including the objective that there are such customer information programs and
customer cabling installation programs as are necessary to support the continuity of supply of
carriage services during the transition to the NBN.
These proposed legislative powers would enable TUSMA to carry out functions relating to
the migration of voice-only customers that are currently set out in an agreement between the
Commonwealth and Telstra Corporation Limited (Telstra), which, following the
commencement of the TUSMA Bill, will be taken to have been entered into by TUSMA.
These arrangements include the provision of information to voice-only customers prior to
copper services being decommissioned and, if necessary, limited internal rewiring that is
reasonably required so that voice-only customers can continue to receive voice-only services
over the NBN fibre network. Similar arrangements may be entered into between TUSMA and
other service providers with voice-only customers.
The proposed amendments enable TUSMA to require, by written notice, that a carriage
service provider:
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· provide to TUSMA information or documents in the provider's possession, if
TUSMA believes on reasonable grounds that the provider has information or
documents relevant to the achievement of the voice customer migration policy
objective; or
· consent to a third person contacting that provider's customers where such consent
would be likely to facilitate the achievement of the voice customer migration policy
objective.
The purpose of the amendments is to ensure that existing voice-only customers (including
voice-only customers requiring Priority Assistance services due to a life threatening medical
condition) can be reliably identified, and notified of their options of maintaining continuity of
service as the existing copper network is progressively decommissioned during the NBN
rollout and replaced with the NBN fibre network. The amendments to the Bill will assist
TUSMA in meeting its voice customer migration policy objective in two broad ways.
First, the power to obtain information or documents held by carriage service providers would
assist TUSMA in supporting the migration of public interest services to the NBN by
overcoming potential restrictions on the disclosure of voice-only customer-related
information held by carriage service providers. Access to customer information will be
required to enable TUSMA and relevant carriage service providers to accurately identify
voice-only customers so that they can be notified about their service options and the
processes involved if they wish to maintain a fixed-line voice service by migrating to the
NBN. While it is expected that TUSMA would seek contractual measures to support
disclosure of the required information, there may nevertheless be existing restrictions on this
information being disclosed by Telstra or other parties. In these circumstances, TUSMA
would be able, by written notice, to require the disclosure of such details by carriage service
providers. Because multiple providers may offer services to individual customers, it may be
necessary to obtain information from more than one provider in order to verify whether a
customer is obtaining a voice-only service or not.
Second, the amendments will enable Telstra and other carriage service providers to contact
the customers of other carriage service providers that have not entered into a contract or grant
agreement with TUSMA for the achievement of the voice customer migration policy
objective for the purpose of, among other things, identifying those customers that may
require assistance with the migration of their voice-only services. The amendments will
therefore help TUSMA to provide a comprehensive safety net so that voice-only customers
are appropriately informed of their options and are provided with the best possible
opportunity to maintain continuity of a fixed-line voice service via the NBN following
disconnection from the existing copper network.
In its use and disclosure of any information or documents obtained through these powers,
TUSMA would, as a statutory agency, be subject to the requirements of the Privacy Act 1998,
including the Information Privacy Principles (IPPs) under that Act. The IPPs set out the base
line privacy standards for the collection, use and disclosure, and secure management of
personal information by Commonwealth agencies.
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These proposed amendments are not intended to be open-ended in their effect, as the use of
these powers by TUSMA would be limited to the scope of the voice-only customer
information programs and the customer cabling installation programs covered by the voice
customer migration policy objective. Once the NBN rollout is complete and arrangements for
these voice customer migration programs have been finalised, the proposed powers set out in
these amendments will no longer apply.
Other amendments
The other amendments are in response to recommendations 1 and 2 of the report of the
Senate Environment and Communications Committee on the Bill.
First, the amendments will enable TUSMA to disclose information to the TIO, the RTIRC
and the Secretary to the Department where TUSMA is satisfied that such provision of
information will enable those bodies or persons to perform or exercise any of their functions
or powers.
Second, the amendments change the fields in which TUSMA's members must have
substantial experience or knowledge, and significant standing, by including consumer affairs
and removing the field of economics. This amendment will better enable TUSMA to consider
the needs of consumers in relation to the provision of USO and other public interest
telecommunications services.
FINANCIAL IMPACT STATEMENT
The amendments are not expected to have any material financial impact for the
Commonwealth.
ABBREVIATIONS
The following abbreviations are used in this supplementary explanatory memorandum:
ACMA: Australian Communications and Media Authority
Bill: Telecommunications Universal Service Management Agency
Bill 2011
Consumer Protection Act: Telecommunications (Consumer Protection and Service
Standards) Act 1999
NBN: National Broadband Network
NBN Co: NBN Co Limited
RTIRC: Regional Telecommunications Independent Review Committee
TIO: Telecommunications Industry Ombudsman
TUSMA: Telecommunications Universal Service Management Agency
USO: Universal Service Obligation
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NOTES ON AMENDMENTS
AMENDMENT (1)
This amendment inserts a new definition of Telecommunications Industry Ombudsman into
clause 4 of the Bill. The definition provides that this term has the same meaning as in the
Consumer Protection Act.
This is a consequential amendment required because of proposed amendment (8).
AMENDMENT (2)
This amendment clarifies that the defined term voice customer migration policy objective
means the policy objective set out in proposed paragraph 11(e) of the Bill, but only so far as
that policy objective relates to customer information programs and/or customer cabling
installation programs.
This amendment limits the scope of the powers proposed to be inserted in the Bill under
amendment (2), and makes clear that those powers are intended to enable TUSMA to provide
assistance related to the migration of public interest services currently reliant on the existing
copper-based network to the NBN, thereby providing a safety net for the continued operation
of these services. Such support could include arrangements to meet cabling installation costs,
or the provision of information to voice-only customers regarding their service options and
the processes involved in migrating to the NBN.
AMENDMENT (3)
This amendment inserts a new proposed Division 4A into the Bill for the purpose of
facilitating the achievement of the voice customer migration policy objective.
Division 4A--Facilitation of the voice customer migration policy objective
Subdivision A--Access to information or documents held by a carriage service provider
Subdivision A of Division 4A of the Bill enables TUSMA to require a carriage service
provider to give to, or produce to TUSMA certain information and documents. These
provisions are similar to the requirements set out in proposed clauses 78 to 82 of the Bill,
which provide the Minister with the power to require information or documents from
NBN Co where the Minister believes that the information or documents would be relevant to
TUSMA's functions or powers. Unlike clause 78, though, the requirements provided for in
this subdivision must specifically relate to the achievement of the voice customer migration
policy objective.
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Clause 29A - Access to information or documents held by a carriage service provider
Clause 29A applies where TUSMA believes on reasonable grounds that a carriage service
provider has information or documents relevant to the achievement of the voice customer
migration policy objective.
Subclause 29A(2) enables TUSMA to give written notice to a carriage service provider
requiring it to give TUSMA any such information or documents (including copies of
documents) within the period and in the manner and form specified in that notice.
Subclause 29A(3) provides that for the purposes of this clause, the period specified in the
notice must not be less than 14 days after the notice is given.
A carriage service provider must comply with a requirement to provide information or
documents to the extent that it is capable of doing so (subclause 29A(4)). A carriage service
provide will commit an offence if it receives a notice under subclause 29A(2) and
subsequently engages in conduct which contravenes a requirement of that notice. The penalty
for a contravention of this clause is 50 penalty units.
Clause 29B - Copying documents--compensation
This clause provides for a carriage service provider to be paid reasonable compensation by
TUSMA for complying with a requirement covered by paragraph 29A(2)(c) to make copies
of documents and produce them to TUSMA.
Clause 29C - Copies of documents
Clause 29C enables TUSMA to inspect a document (or copy of a document) provided under
subclause 29A(2), to make copies or extracts from those documents, and to retain possession
of copies of such documents.
Clause 29D - TUSMA may retain documents
This clause allows TUSMA to take and retain possession of a document provided under
subclause 29A(2) for as long as is necessary. However, subclause 29D(2) provides that the
carriage service provider entitled to possession of the document is also entitled to be supplied
a certified true copy of the document by TUSMA as soon as is practicable. Subclause 29D(3)
provides that the certified copy must be received in all courts and tribunals as evidence as if it
were the original.
Subclause 29D(4) provides for TUSMA, where it thinks appropriate, to permit the carriage
service provider otherwise entitled to possession of the document (or a person authorised by
that provider) to inspect, make copies, or take extracts from, the document until a certified
copy is supplied to the relevant provider.
Clause 29E - Law relating to legal professional privilege not affected
This clause makes clear that none of the provisions in Subdivision A of Division 4A of the
Bill will affect the law relating to legal professional privilege.
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Subdivision B--Disclosure of information
Clause 29F - Disclosure of information
This clause allows TUSMA to disclose to a carriage service provider information obtained
under clause 29A, or contained in a document produced to TUSMA under that clause.
Subclause 29F (2) makes clear that the disclosure must be for a purpose relating to the
achievement of the voice customer migration policy objective.
This provision would enable TUSMA to provide information to carriage service providers for
the purpose of allowing the provider to contact and assist customers in the migration of their
voice-only services from the existing copper-based network to the NBN. Such information
might include, for example, details on which customers of the provider will require
information as to their voice service options prior to any potential disconnection from the
existing copper network.
Subdivision C--Consent to customer contact
Clause 29G - Consent to customer contact
This clause applies to a carriage service provider if TUSMA believes on reasonable grounds
that should the provider consent to another person (the third person) contacting the provider's
customers (or a class of customers) for a purpose relating to the achievement of the voice
customer migration policy objective, that consent would facilitate the achievement of that
policy objective. This provision only applies to a carriage service provider if the provider is
not a contactor or grant recipient of TUSMA in relation to a clause 13 contract or grant
entered into for a purpose relating to the achievement of the voice customer migration policy
objective. If the provider has entered into such a contract or grant with TUMSA, then the
matter of the need for consent would be addressed contractually.
Subclause 29G(2) provides that in these circumstances TUSMA may, by written notice,
require the carriage service provider to consent, within a specified period, to the third person
contacting the provider's customers or class of customers for the purposes of the voice
customer migration policy objective. Under subclause 29G (3), the specified period in the
notice must not be at least 14 days after the notice is given to the provider.
Subclause 29G(4) provides that a carriage service provider must comply with a requirement
to consent to customer contact. The provider will commit an offence if, after required to
provider by written notice, it engages in conduct contravening that notice. The penalty for a
contravention of this clause is 50 penalty units.
By authorising contact with carriage service provider customers for the purposes of the voice
customer migration policy objective, clause 29G allows for those customers to receive advice
and assistance relating to the future migration of their voice-only services to the NBN. If such
customers were unable to receive such advice or assistance due to carriage service provider
restrictions on contact with other providers, they could potentially lose access to their voice-
only services following the disconnection of their premises from the existing copper network.
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Where the carriage service provider's consent has been required under this clause, any use or
disclosure of personal information relating to the provider's customers will continue to be
subject to the requirements of the Privacy Act 1998, including the National Privacy Principles
(NPPs) in that Act. The NPPs set out the base line privacy standards for the collection, use
and disclosure, and secure management of personal information by private sector
organisations.
AMENDMENT (4)
This item amends subclause 38(2) of the Bill by omitting paragraph (d) (`economics') and
substituting with a new paragraph (d) specifying `consumer affairs' as one of the five fields
the Minister must be satisfied that a person has experience or knowledge in, and significant
standing, in order for that person to be eligible for appointment by the Minister as a TUSMA
member. A person is only required to satisfy one of those fields.
This amendment is in response to recommendation 2 of the report of the Senate Environment
and Communications Committee and to the submission made to the Committee by the
Australian Communications Consumer Action Network. The inclusion of the field of
`consumer affairs' in clause 38 recognises that the contracts and grants managed by TUSMA
are intended to service the needs of consumers. The TUSMA members will focus on efficient
and effective service delivery through the management of contracts and grants entered into in
accordance with the policy objectives in clause 11. Having a member with an understanding
of consumer affairs will provide a valuable perspective to decisions made by TUSMA.
AMENDMENT (5)
This amendment omits the reference in clause 122 to `the ACMA and the ACCC', and
substitutes them with references `certain bodies or persons'. This broad reference is required
because amendment (8) will allow for TUSMA to disclose information to the RTIRC, the
TIO and the Secretary of the Department in addition to the ACMA and the ACCC.
AMENDMENT (6)
AMENDMENT (7)
These amendments remove references in clause 122 to `authorities' (authority), and
substitutes with a reference to `bodies or persons' (body or person). These are technical
amendments required because of amendment (8).
AMENDMENT (8)
This amendment includes the TIO, the RTIRC and the Secretary of the Department (currently
the Department of Broadband, Communications and the Digital Economy) as bodies or
persons to whom TUSMA may disclose information under clause 122 of the Bill, in addition
to the ACMA and the ACCC. TUSMA will only be able to disclose information to these
bodies or persons if TUSMA is satisfied that the information will assist the relevant body or
person to perform or exercise any of their functions or powers.
This amendment responds to recommendation 1 of the report of the Senate Environment and
Communications Committee, and to the submission made to the Committee by the TIO. The
Committee recommended, in part, that clause 122 of the Bill be amended to enable TUSMA
to disclose information to the TIO. In addition to the ACMA and ACCC, TUSMA and the
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TIO have significant roles in the delivery and oversight of telecommunications consumer
protections. The ability of TUSMA to provide particular information may assist the TIO in
the resolution of disputes between consumers and their service providers.
In the case of RTIRC, this amendment allows for the provision of useful information to
improve telecommunication services for Australians in non-metropolitan areas. In the case of
the Department, the provision of information will assist with reporting and policy
development undertaken by the Department.
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