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Telecommunications Universal Service Management Agency Bill 2011

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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:

 



 

  • 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.

 



 

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

 

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.

 



 

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.

 



 

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.

 



 

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 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.