TELECOMMUNICATIONS UNIVERSAL SERVICE MANAGEMENT AGENCY AMENDMENT (ACCESSIBLE SERVICES) REGULATION 2013 (SLI NO 68 OF 2013) EXPLANATORY STATEMENT

Commonwealth Numbered Regulations - Explanatory Statements

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TELECOMMUNICATIONS UNIVERSAL SERVICE MANAGEMENT AGENCY AMENDMENT (ACCESSIBLE SERVICES) REGULATION 2013 (SLI NO 68 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 68

Issued by the Authority of the Minister for Broadband, Communications

and the Digital Economy

Telecommunications Universal Service Management Agency Act 2012

Telecommunications Universal Service Management Agency Amendment (Accessible Services) Regulation 2013

Authority

Section 125 of the Telecommunications Universal Service Management Agency Act 2012

(TUSMA Act) enables the Governor-General to make regulations prescribing matters required or permitted by the Act to be prescribed.

Paragraph 11(f) of the TUSMA Act provides that the regulations may specify a policy objective of Part 2 of the Act where the policy objective relates to the supply of carriage services.

Part 2 of the TUSMA Act defines the scope and limits of the Telecommunications Universal Service Management Agency's (TUSMA's) contract and grant-related functions as conferred under the Act, including setting the policy objectives for public interest telecommunications services.

Under section 12 of the Act, TUSMA must take all reasonable steps to ensure that, in performing its functions and exercising its powers, it achieves the policy objectives set out in Part 2. Section 13 of the TUSMA Act provides that TUSMA may only carry out its core function of entering into a contract or making a grant if that contract or grant is for a purpose relating to the achievement of one or more of the policy objectives set out in section 11.

Purpose

The purpose of the Telecommunications Universal Service Management Agency Amendment (Accessible Services) Regulation 2013 (the Regulation) is to amend the Telecommunications Universal Service Management Agency Regulation 2012 (the Principal Regulation) to include new policy objectives in Part 2 of the TUSMA Act enabling TUSMA to procure additional services for the delivery of the relay service component of the National Relay Service (NRS). The Regulation also repeals the existing provision in the Principal Regulation that limits the application of the 'extended zones' policy objective until 1 July 2013; instead, that policy objective will continue to operate beyond that date.

The TUSMA Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA) (see paragraph 6(a) of the LIA).

The Regulation commences on the day after it is registered.

Background

New policy objectives relating to the NRS

The NRS is a service that provides persons who are deaf, or who have a hearing and/or speech impairment, with access to a standard telephone service on terms, and in circumstances, that are comparable to those on which other Australians have access to a standard telephone service (as defined in section 4 of the TUSMA Act). It is a policy objective under paragraph 11(d) of the TUSMA Act that the NRS is to be reasonably accessible to all persons in Australia who are deaf, or who have a hearing and/or speech impairment, wherever they reside or carry on business.

The NRS comprises two components:

* relay services, in which relay officers act as a communications intermediary by relaying calls made using the NRS between the caller and a third party; and

* outreach services, which promote increased awareness and acceptance of the relay services, offer information and provide support and training to NRS users and potential users.

TUSMA has recently concluded a competitive tender for the provision of NRS relay and outreach services. The request for tender called for innovative approaches to the provision of both components of the NRS, so that services could be provided more economically, efficiently and effectively to maximise the benefits of the National Broadband Network and other new technologies. The successful contractors were announced on 8 February 2013 (Australian Communication Exchange Limited in relation to the relay services and CFW Spice Pty Ltd (trading as WestWood Spice) for the outreach services).

The relay services contract provides for the provision of 'core' services from 1 July 2013, as well as some additional new services that may, from 1 July 2013 onwards, be procured by TUSMA subject to regulatory change. Regulatory change is required for services that do not fall under the definition of NRS in section 4 of the TUSMA Act and are therefore outside the scope of the NRS policy objective in paragraph 11(d) of the TUSMA Act. The proposed additional new services are as follows:

* an SMS relay service that will allow NRS users to communicate with non-NRS users (including access to emergency services) through a relay officer via SMS;

* a video relay service that will allow NRS users who communicate in Auslan to make and receive calls from the broader community; and

* a standalone software application that will provide a shortcut to a range of NRS service options, including emergency services.

Consequently, the additional services offered by the new contracts and included within the scope of the TUSMA Act's policy objectives will expand the range of options for communicating using the NRS, offering NRS users the choice of communicating with an NRS relay officer by text (through the software application or by SMS) or in Auslan (using the video relay service). These new services will be procured from 1 July 2013.

Repeal of the time limitation for the 'extended zones' policy objective

The Principal Regulation, which commenced on 1 July 2012, introduced a new policy objective in Part 2 of the TUSMA Act enabling TUSMA to make arrangements ensuring that customers of a carriage service provider in areas outside of a 'standard zone' (as defined in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act)) are provided with access to untimed local calls when using a standard telephone service or a payphone, or when accessing a dial-up internet service.

Since 2001, the Commonwealth has contracted with Telstra for the provision of untimed local calls to customers outside of the 'standard zones' (commonly referred to as the 'extended zones'). In 2012, the Government decided that TUSMA should take over the extended zones contract for the financial year 2012-13, pending the review of untimed local call arrangements by the Review of Retail Price Controls. The Review of Retail Price Controls recommended that TUSMA be given responsibility for entering into and managing contracts for providing untimed local calls in the 'extended zones' on an ongoing basis.

This option is consistent with the Government's overall policy to shift to a transparent and accountable contractual framework, with TUSMA entering into and managing contracts and grants to deliver universal service outcomes and other public interest telecommunications services.

Furthermore, the 2011-12 review by the Regional Telecommunications Independent Review Committee, Regional communications: Empowering digital communities recommended that the Government should continue the provision of untimed local calls in the 'extended zones'.

Consultation

The Department of Broadband, Communications and the Digital Economy (the Department) consulted with the following persons regarding the Regulation: TUSMA, the Australian Communications and Media Authority, members of the Australian Communications Consumer Action Network, carriers that are likely to have to contribute to the telecommunications industry levy and members of the Australian Communications and Media Authority's Emergency Call Service Advisory Committee. The consultation period ran from 5 April 2013 to 23 April 2013 with the Department receiving seven submissions from carriers and State emergency service organisations. Although most stakeholders were generally supportive of the Regulation, several expressed concerns about aspects of its drafting and application. These included concerns about the potential of the phrase 'reasonably accessible' to lead to a broadening of the scope of the NRS, the definition of the SMS relay service, the role that the NRS will play in providing the video relay service and whether the software application relates to the supply of a carriage service. The Department engaged in ongoing dialogue with stakeholders to clarify these issues.

Regulatory impact

The Office of Best Practice Regulation advised the Department that a regulatory impact statement was not required for the Regulation.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications Universal Service Management Agency Amendment (Accessible Services) Regulation 2013

This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Regulation

The purpose of the Regulation is twofold. It amends the Telecommunications Universal Service Management Agency Regulation 2012 (the Principal Regulation) to include three new policy objectives in Part 2 of the TUSMA Act, enabling TUSMA to procure additional services for the delivery of the relay service component of the National Relay Service (NRS). The Regulation also removes the time limit currently specified in the Principal Regulation for the policy objective relating to the 'extended zones'. This amendment will enable TUSMA to continue to make arrangements to ensure customers of a carriage service provider in areas outside of a 'standard zone' are provided with access to untimed local calls when using a standard telephone service or a payphone, or when accessing a dial-up internet service.

Human rights implications

In respect to the amendment that repeals the time limit for the 'extended zones' policy objective, the Regulation does not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

In relation to the inclusion of the new policy objectives regarding the NRS, the Regulation engages the following human rights:

Rights of people with disability

The Convention on the Rights of Persons with Disabilities (CRPD) requires countries to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disability without discrimination of any kind on the basis of their disability. There is also a general obligation in the CRPD to provide 'reasonable accommodation' to ensure people with disability can enjoy their rights on an equal basis with others.

The NRS provides persons who are deaf, or who have a hearing and/or speech impairment, with access to a standard telephone service on terms, and in circumstances, that are comparable to those on which other Australians have access to a standard telephone service. The Regulation advances the protection of the rights of people with disability by enabling TUSMA to procure additional innovative services for the NRS.

Rights to equality and non-discrimination

The rights of equality and non-discrimination are protected in articles 2, 16 and 26 under the International Covenant on Civil and Political Rights. These rights ensure all persons are treated equally and no-one is discriminated against based on factors such as race, colour, sex or other prohibited grounds, such as disability. It is, however, sometimes necessary to treat persons differently to achieve equality. The Regulation introduces new policy objectives specifically related to persons who are deaf, or who have a hearing and/or speech impairment, to further enable those persons to have access to communication services comparable to that of other Australians.

Conclusion

The Regulation is compatible with human rights because it advances the protection of the rights of persons with disability.

Authorised by the Minister for Broadband, Communications and the Digital Economy

Details of the Regulation

Section 1 - Name of regulation

This section provides that the title of the Regulation is the Telecommunications Universal Service Management Agency Amendment (Accessible Services) Regulation 2013.

Section 2 - Commencement

This section provides that the Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 - Authority

This section provides that the legislative authority for the Regulation is the Telecommunications Universal Service Management Agency Act 2012.

Section 4 - Schedule(s)

Section 4 provides that each instrument specified in a Schedule to this instrument is amended or repealed as set out in that Schedule and that any other item in a Schedule to this instrument has effect according to its terms. The Regulation has only one Schedule, which amends the Telecommunications Universal Service Management Agency Regulation 2012 (the Principal Regulation).

Schedule 1 - Amendments

Item 1 - Section 3

Item 1 inserts a definition of the term SMS relay service to mean a service that allows users of the National Relay Service to communicate using SMS. This term is used in the policy objective provided for in new subsection 4(2). The note underneath the definition clarifies that SMS is short for short message service.

Item 2 - Section 3

This item inserts a definition of the term video relay service to mean a service that allows persons who are deaf, or who have a hearing and/or speech impairment, to communicate with other persons using video as well as voice. This term is used in the policy objective provided for in new subsection 4(3).

Item 3 - Subsection 4(2)

Item 3 repeals the existing provision in the Principal Regulation that provides for the 'extended zones' policy objective to expire on 1 July 2013; instead, that policy objective will continue to operate beyond that date. This will enable TUSMA to enter into new arrangements to ensure those customers of carriage service providers in the 'extended zones' continue to be provided with access to untimed local calls when using a standard telephone service or a payphone, or when accessing a dial-up internet service.

This item also introduces three new policy objectives for Part 2 of the TUSMA Act to enable TUSMA to procure the new national relay services described in the Background of this explanatory statement.

The first additional policy objective (new subsection 4(2)) is for an SMS relay service to be reasonably accessible to all persons in Australia who are deaf, or who have a hearing and/or speech impairment. This objective will enable TUSMA to procure a service such that NRS users can communicate with relay officers by text message and the officers can subsequently relay the conversation with the other party, including with emergency service organisations. As SMS is a 'store and forward' technology, and does not provide real-time communication, it is considered that the service does not meet the definition of a standard telephone service, which is a prerequisite for the purposes of the NRS. The service is, however, a carriage service and therefore is able to be captured through a new policy objective made under paragraph 11(f) of the TUSMA Act. Figure 1 illustrates the basic operation of an SMS relay service.

Figure 1: A conversation between Person X (a person who is deaf, or has a hearing and/or speech impairment) and Person Y using the SMS relay service. A call made using the SMS relay service can be initiated by either Person X or Person Y.

The second new policy objective (new subsection 4(3)) is for a video relay service to be reasonably accessible to all persons in Australia who communicate in Auslan. This service will enable NRS users to sign their side of the conversation via a video call to a relay officer who will subsequently relay it to the intended recipient via a standard voice call, with the relay officer signing the other side of the conversation back to the Auslan user. It is understood that TUSMA will only procure this service during prescribed hours, given the limited availability of accredited interpreters and budgetary restraints.

The definition of video relay service (as referred to in item 2 above) makes clear that this service is only available to people who are deaf, or who have a hearing and/or speech impairment, and it is not available to the broader community simply because they may be able to communicate in Auslan. Figure 2 illustrates the basic operation of a video relay service.

Figure 2: A conversation between Person X (a person who is deaf, or has a hearing and/or speech impairment, and communicates in Auslan) and Person Y using the video relay service. A call made using the video relay service can be initiated by either Person X or Person Y.

The last new policy objective introduced by this item 3 (new subsection 4(4)) is for a software application to be reasonably available to assist all NRS users in their communication with emergency call services.

A software application has been developed which will enable NRS users more efficient access to emergency call services. The user types their conversation into an internet-enabled mobile device and reads the responses from the emergency services operator. The conversation between the user and the emergency services operator is relayed by an NRS relay officer. This policy objective will enable TUSMA to procure the application as part of the additional new services available under the NRS relay contract from 1 July 2013.

While the software application is not a carriage service, it is related to the supply of carriage services, as the application is the tool that allows the NRS relay contractor to supply a carriage service to NRS users via an internet-enabled mobile device, and is therefore able to be captured through a new policy objective made under paragraph 11(f) of the TUSMA Act.

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