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Telecommunications (Consumer Protection and Service Standards) Bill 1998

Part 5 Customer service guarantee

   

113   Simplified outline

                   The following is a simplified outline of this Part:

•      The ACA may make performance standards to be complied with by carriage service providers in relation to customer service.

•      If a carriage service provider contravenes a performance standard, the carriage service provider is liable to pay damages to the customer for the contravention.

•      The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale of damages determined by the ACA.

•      The Telecommunications Industry Ombudsman may issue an evidentiary certificate in relation to a contravention of a performance standard.

114   Interpretation

             (1)  In this Part:

customer includes prospective customer.

damages includes punitive damages.

             (2)  In determining the meaning that an expression has when used in a provision of the Telecommunications Act 1997 , or in a provision of this Act other than this Part, subsection (1) is to be disregarded.

115   Performance standards

             (1)  The ACA may, by written instrument, make standards to be complied with by carriage service providers in relation to:

                     (a)  the making of arrangements with customers about the period taken to comply with requests to connect customers to specified kinds of carriage services; and

                     (b)  the periods that carriage service providers may offer to customers when making those arrangements; and

                     (c)  the compliance by carriage service providers with the terms of those arrangements; and

                     (d)  the period taken to comply with requests to rectify faults or service difficulties relating to specified kinds of carriage services, where the rectification follows the making of a customer report about a fault or service difficulty; and

                     (e)  the keeping of appointments to meet customers, or representatives of customers, where the appointment relates to:

                              (i)  a connection of a kind covered by paragraph (a); or

                             (ii)  a rectification of a kind covered by paragraph (d); and

                      (f)  any other matter concerning the supply, or proposed supply, of a carriage service to a customer.

             (2)  A standard under this section that relates to a particular kind of carriage service does not apply to a particular carriage service provider in connection with the supply of that kind of service at a particular location unless the carriage service provider:

                     (a)  supplies that kind of service at that location; or

                     (b)  offers to supply that kind of service at that location.

             (3)  The ACA must not make a standard under this section unless it is directed to do so by the Minister under section 124.

             (4)  A standard under this section may be of general application or may be limited as provided in the standard. This subsection does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901 .

             (5)  A standard under this section takes effect:

                     (a)  if the instrument making the standard specifies a day for the purpose—on that day; or

                     (b)  otherwise—on the day on which the standard was notified in the Gazette .

             (6)  A standard under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

116   Damages for breach of performance standards

             (1)  If:

                     (a)  a carriage service provider contravenes a standard in force under section 115; and

                     (b)  the contravention relates to a particular customer;

the carriage service provider is liable to pay damages to the customer for the contravention.

             (2)  The amount of damages payable for a particular contravention is equal to the relevant amount specified in the scale in force under section 117.

             (3)  However, if:

                     (a)  the carriage service provider:

                              (i)  credits an amount to an account that the customer has with the provider; or

                             (ii)  pays an amount to the customer; and

                     (b)  the credit or payment was made as a result of a right or remedy that:

                              (i)  was available to the customer otherwise than under this Division; and

                             (ii)  arose out of the same event or transaction as the contravention;

the amount of damages payable for the contravention is to be reduced (but not below zero) by the amount of the credit or payment.

             (4)  The customer may recover the amount of the damages by action against the carriage service provider in a court of competent jurisdiction.

             (5)  The liability of the carriage service provider under this section may be discharged:

                     (a)  by giving the customer a credit in an account the customer has with the carriage service provider; or

                     (b)  in any other manner agreed between the carriage service provider and the customer.

             (6)  An action under this section must be instituted within 2 years after:

                     (a)  in the case of a contravention that continued throughout a period—the time when the contravention began; or

                     (b)  in any other case—the time when the contravention occurred.

             (7)  If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

117   Scale of damages for breach of performance standards

             (1)  The ACA may, by written instrument, specify a scale of damages for contraventions of standards under section 115.

             (2)  The scale must:

                     (a)  specify categories of contraventions; and

                     (b)  specify a dollar amount as the amount of damages payable for contraventions covered by each of those categories.

             (3)  A dollar amount specified in accordance with paragraph (2)(b) must not exceed $25,000.

             (4)  A category may be specified by reference to contraventions that continue over a specified number of days.

             (5)  Subsection (4) does not, by implication, limit the ways in which a category may be specified.

             (6)  An instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

117A   Time for payment of damages for breach of performance standards

Decision whether to accept liability for damages

             (1)  If, at a particular time, a carriage service provider first has reason to believe that an event has occurred that is reasonably likely to result in the carriage service provider being liable to pay damages to a particular customer under section 116, then, within 14 days after that time, the carriage service provider must decide whether to accept that liability.

             (2)  In making a decision under subsection (1), the carriage service provider must have regard to whether there is any reasonable basis for the carriage service provider to dispute the liability.

             (3)  If a carriage service provider makes a decision under subsection (1) to accept, or not to accept, a liability to pay damages to a particular customer, the carriage service provider must give the customer written notification of the decision within 14 weeks after the decision is made.

Crediting customer account

             (4)  If:

                     (a)  a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and

                     (b)  the liability is to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;

the liability must be discharged within the period of 14 weeks after the decision is made and:

                     (c)  if it is practicable for the carriage service provider to give the customer the credit within that 14-week period and in time for the customer to be notified of the credit in the first bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill; or

                     (d)  if paragraph (c) does not apply, but it is practicable for the carriage service provider to give the customer the credit within that 14-week period and in time for the customer to be notified of the credit in the second bill sent to the customer during that period—by giving the customer the credit in time for the customer to be notified of the credit in that bill.

Other manner of discharging liability

             (5)  If:

                     (a)  a carriage service provider makes a decision under subsection (1) to accept a liability to pay damages to a particular customer; and

                     (b)  the liability is not to be discharged by giving the customer a credit in an account the customer has with the carriage service provider;

the liability must be discharged within 14 weeks after the decision is made.

Customer

             (6)  If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

Transitional

             (7)  The reference in subsection (1) to a particular time is a reference to a particular time after the end of the period of 12 months beginning on the date of commencement of this section.

118   Remedial directions—compliance with performance standards

             (1)  This section applies if a carriage service provider is subject to a standard in force under section 115.

             (2)  The ACA may give the provider a written direction:

                     (a)  requiring the provider to take specified action directed towards ensuring that the provider does not contravene, or is unlikely to contravene, the standard; or

                     (b)  requiring the provider to take such action as will ensure that the extent of the provider’s compliance with the standard reaches or exceeds a specified goal or target.

Note:          Under section 124, the Minister may give the ACA directions in relation to the exercise of its powers under this Part.

             (3)  The following are examples of the kinds of direction that may be given to a carriage service provider under subsection (2):

                     (a)  a direction that the provider implement effective administrative systems for monitoring compliance with a standard in force under section 115;

                     (b)  a direction that the provider take such action as is necessary to ensure that the extent of the provider’s compliance with a standard in force under section 115, in so far as that standard relates to the keeping of appointments to meet customers in rural areas, reaches or exceeds a specified goal or target.

             (4)  Before giving a direction under subsection (2), the ACA must consult the Telecommunications Industry Ombudsman. However, this rule does not apply if the Minister, under section 124, required the ACA to give the direction.

             (5)  A carriage service provider must not contravene a direction under subsection (2).

             (6)  A direction under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

118A   Right of contribution

             (1)  If:

                     (a)  a carriage service provider (the first provider ) contravenes a standard in force under section 115; and

                     (b)  the contravention relates to a particular customer; and

                     (c)  the first provider is liable, under section 116, to pay damages (the primary damages ) to the customer for the contravention; and

                     (d)  the contravention is wholly or partly attributable to one or more acts or omissions of another carriage service provider (the second provider ); and

                     (e)  the first provider has discharged the liability for the primary damages;

the second provider is liable to pay damages (the secondary damages ) to the first provider for the acts or omissions.

             (2)  The amount of the secondary damages for the acts or omissions is:

                     (a)  if the contravention is wholly attributable to the acts or omissions—an amount equal to the primary damages; or

                     (b)  if the contravention is partly attributable to the acts or omissions—such amount (not exceeding the primary damages) as the court thinks fair and reasonable.

             (3)  If the second provider makes a payment to the first provider as a result of a right or remedy that:

                     (a)  was available to the first provider otherwise than under this section; and

                     (b)  arose out of the same acts or omissions;

the amount of the secondary damages payable for the acts or omissions is to be reduced (but not below zero) by the amount of the payment.

             (4)  The first provider may recover the amount of the secondary damages by action against the second provider in a court of competent jurisdiction.

             (5)  An action under this section must be instituted within 2 years after the first provider discharged the liability for the primary damages.

             (6)  If the customer dies, a reference in this section to the customer includes a reference to the legal personal representative of the customer.

             (7)  Paragraph (1)(a) does not apply to a contravention that occurs before the end of the period of 6 months beginning on the date of commencement of this section.

119   Evidentiary certificate issued by the Telecommunications Industry Ombudsman

             (1)  The Telecommunications Industry Ombudsman may issue a written certificate:

                     (a)  stating that a specified carriage service provider has contravened a standard in force under section 115; and

                     (b)  setting out particulars of that contravention.

             (2)  In any proceedings under this Part, a certificate under subsection (1) is prima facie evidence of the matters in the certificate.

             (3)  A document purporting to be a certificate under subsection (1) must, unless the contrary is established, be taken to be a certificate and to have been properly given.

             (4)  Subsection (1) does not apply to the Telecommunications Industry Ombudsman unless the Telecommunications Industry Ombudsman gives the Minister a written notice consenting to the conferral of the powers conferred by that subsection.

             (5)  If no notice is in force under subsection (4), subsection (1) has effect as if the reference in that subsection to the Telecommunications Industry Ombudsman were a reference to the ACA.

             (6)  The Minister must cause a copy of a notice under subsection (4) to be published in the Gazette .

             (7)  The continuity of a notice under subsection (4) is not affected by:

                     (a)  a change in the occupancy of the position of Telecommunications Industry Ombudsman; or

                     (b)  a vacancy in the position of Telecommunications Industry Ombudsman that does not continue for more than 4 months.

120   Waiver of customer service guarantee

             (1)  The ACA may, by written instrument, make provision for customers of carriage service providers to waive, in whole or in part, their protection and rights under this Part in relation to a particular carriage service supplied, or proposed to be supplied, by the carriage service provider concerned.

             (2)  If such a waiver is made, then, to the extent of the waiver, the carriage service provider is not bound by, and need not comply with, any standards in force under section 115 in relation to the supply of that service to that customer.

             (3)  A waiver must be made in accordance with the rules set out in the instrument.

             (4)  An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

121   Savings of other laws and remedies

             (1)  This Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

             (2)  This Part does not limit, restrict or otherwise affect any right or remedy a person would have if this Part had not been enacted.

             (3)  This Part does not limit, restrict or otherwise affect the operation of the Telecommunications Industry Ombudsman scheme. In particular, this Part does not affect a customer’s right to complain to the Telecommunications Industry Ombudsman.

             (4)  Subsection (3) does not, by implication, limit subsection (2).

122   Breach of performance standard is not an offence

                   A contravention of a standard in force under section 115 is not an offence.

123   Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a breach of a performance standard

                   Clause 1 of Schedule 2 to the Telecommunications Act 1997 does not apply to a contravention of a standard in force under section 115.

Note:          Clause 1 of Schedule 2 to the Telecommunications Act 1997 requires carriage service providers to comply with this Act.

124   Minister may direct the ACA about the use of its powers under this Part

             (1)  The Minister may give the ACA written directions about how the ACA is to exercise its powers under this Part.

             (2)  The ACA must comply with a direction under this section.

             (3)  This section does not affect the Minister’s power to give the ACA directions under other provisions about other matters.

             (4)  A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (5)  The Minister must not give the ACA a direction under section 12 of the Australian Communications Authority Act 1997 about how the ACA is to exercise its powers under this Part.

125   Review of performance standards following Ministerial direction

             (1)  This section applies to a direction under section 124 that requires the ACA to make a standard under section 115.

             (2)  If the Minister revokes a direction, the ACA must revoke the section 115 standard that is in force because of the direction.

             (3)  If the Minister varies a direction, the ACA must either:

                     (a)  vary the section 115 standard that is in force because of the direction so that the standard complies with the varied direction; or

                     (b)  revoke the section 115 standard and determine a new section 115 standard that so complies.

             (4)  If a section 115 standard is in force because of a direction:

                     (a)  the ACA may vary the standard on its own initiative, but only in such a way that the varied standard still complies with the direction; and

                     (b)  the ACA may, on its own initiative, revoke the standard and determine a new section 115 standard that so complies.