EXPLANATORY STATEMENT
Telecommunications (Consumer Protection and Service Standards) Act 1999
Telecommunications (Consumer Protection and Service Standards) (National Relay Service Rules) Determination 2019
Issued by the Authority of the Minister for Communications, Cyber Safety and the Arts
Legislative authority
Section 16 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (TCPSS Act) applies to contracts entered into under section 14 of that Act and makes it a condition of the contract that the contractor must comply with a determination made by the Minister. In particular, subsection 16(2) of the TCPSS Act states that the Minister may, by legislative instrument, make a determination that sets out: standards or rules that must be complied with by contractors delivering public interest telecommunication services; or minimum benchmarks that must be met or exceeded by these contractors.
Section 14 of the TCPSS Act allows the Secretary of the Department to enter into a contract, on behalf of the Commonwealth, for the achievement of certain policy objectives, which includes that the National Relay Service (NRS) is reasonably accessible to all persons in Australia who are deaf, or have a hearing and/or speech impairment.
Section 22 of the TCPSS Act is a transitional provision that applies to pre-commencement contracts. Subsection 22(2) of the TCPSS Act provides that in respect of contracts that were in force on 1 July 2015 and were entered into after 1 July 2012 under section 13 of the now repealed Telecommunications Universal Service Management Agency Act 2012 (TUSMA Act) for the achievement of a particular policy objective, the TCPSS Act and any other laws of the Commonwealth, have effect as if the contract was entered into under section 14 for the corresponding policy objective.
The contract between the Commonwealth and Australian Communications Exchange Limited (ACE or the contractor) entered into on or around 25 January 2013 under section 13 of the TUSMA Act was for the purpose of making the NRS reasonably accessible to all persons in Australia who are deaf or have a hearing or speech impairment. Accordingly, the TCPSS Act and any other law of the Commonwealth, will apply as if the contract was entered into under section 14 of the TCPSS Act, and it is a condition of the contract that the contractor must comply with a Ministerial determination made under section 16 of that Act.
Background
In June 2019, following a competitive procurement process, the Department announced the successful tenderer for ongoing provision of the NRS was Concentrix Services Pty Ltd (Concentrix). Service provision will be transferred from ACE as the current contractor to Concentrix.
While most NRS access options will be maintained under the new provider, the CapTel captioned relay service access option (provided through the use of a CapTel handset) will no longer be available as part of the NRS.
The Department wishes to notify CapTel handset users of the forthcoming changes to the NRS and to provide them with information on other NRS access options that they may transition to under the new provider. The Department requires assistance from the current contractor to engage with users of the CapTel handset.
The Department requested information about CapTel handset users of the NRS from ACE on 26 June 2019 and 2 July 2019 and the Minister wrote to ACE on 11 July 2019 encouraging ACE to provide the Department with the information it reasonably required to assist NRS users with the transition to the new provider. The Minister also wrote to ACE on 29 August 2019 consulting on the making of this instrument. At the time of making the instrument, ACE had not provided the information that has been requested.
Purpose and operation of the instrument
The purpose of the Telecommunications (Consumer Protection and Service Standards) (National Relay Service Rules) Determination 2019 (the Determination) is to set out rules that must be complied with by ACE as the current NRS provider in providing information and assistance required by the Department to assist the Department to provide information to users of the CapTel captioned telephone handset during the transition to the new NRS provider.
Compliance by ACE with the rules in this Determination is a condition of the contract with the Commonwealth. The Determination sets out the following rules:
- On written request by the Representative, ACE must, within the period and in the manner and form specified, provide information, documents or copies of documents to the Representative which relate to users of the NRS and their contact details, and any agreement or arrangements with third parties that are providing goods or services used by users of the NRS to access the NRS
- If ACE does not have in its possession the information or documents requested by the Representative, ACE must take all reasonable steps to obtain the information and documents and provide this to the Representative within the period and in the manner and form specified in the request
- Where information requested by the Representative is subject to confidentiality restrictions and there is no exception for the disclosure required or authorised by or under a law, ACE must take all reasonable steps to obtain a waiver of confidentiality.
- Upon written request by the Representative, ACE must clearly communicate, or arrange for a third party to clearly communicate, messages about the NRS to users of the NRS
- ACE must take all reasonable steps to comply with any written direction or instruction issued by the Representative.
Details of the accompanying Determination are set out in Attachment A
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Privacy Considerations
The nature and extent of the information that may be requested
Section 5 of this Determination requires ACE to provide certain specified information and/or documents to the Representative where requested in writing. The material that must be provided is limited to the following information or documents relating to:
- Users of the NRS and their contact details (s. 5(1)(a)); and
- Any agreement or arrangements with third parties that are providing goods or services used by users of the NRS to access the NRS (s. 5(1)(b)).
With these overarching limitations, this Determination has been drafted broadly to ensure the Department can obtain sufficient information from ACE to be in a position to contact each current CapTel handset user to assist with transition.
How this information will be collected and used only for the purpose and operation of this Determination
The information provided by ACE to the Representative will be stored on a secure server and will be used to send information about the changes happening to the NRS.
Once this information has been delivered and the service successfully transitioned, there will be no further contact from the Department with the individuals contacted unless they indicate a clear wish to receive assistance from the Department such as information about, or training to use, CapTel alternatives.
Other safeguards in place to protect individuals’ privacy
This Determination is not intended to exclude the operation of the Privacy Act 1988 (Privacy Act) with respect to any party. The Department is an ‘agency’ and therefore an ‘APP entity’ within the meaning of the Privacy Act and is required to comply with the Australian Privacy Principles (APPs), including in respect of information obtained under this Determination.
The Department has a privacy policy in accordance with the Privacy Act (specifically APP 1.3 and 1.4) and the Privacy (Australian Government Agencies – Governance) APP Code 2017 (the Code). The Department collects and uses personal and sensitive information in accordance with its privacy policy, the APPs and the Code.
Documents incorporated by reference
The Determination refers to two Commonwealth Acts, which are publicly available on the Federal Resister of Legislation: the TCPSS Act; and the Privacy Act 1988.
Commencement
The Determination commences on the day after registration on the instrument on the Federal Register of Legislation.
Consultation
Consultation took place with ACE in the form of a letter from the Minister regarding the intention to make the Determination with ACE being provided the opportunity to respond.
Regulatory impact assessment
The instrument does not give rise to a regulatory change as defined by the Office of Best Practice Regulation. Therefore, the need for a regulatory impact assessment process does not apply.
Statement of compatibility with human rights
The Department has assessed whether the instrument is compatible with the rights and freedoms listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011. The instrument is assessed as compatible with human rights because it promotes the protection of human rights and a statement is set out in Attachment B.
Attachment A
Details of the Telecommunications (Consumer Protection and Service Standards) (National Relay Service Rules) Determination 2019
Section 1 - Name
The section provides that the instrument is the Telecommunications (Consumer Protection and Service Standards) (National Relay Service Rules) Determination 2019.
Section 2 – Commencement
This section provides that the instrument will commence on the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section sets out that the instrument is made under paragraph 16(2)(a) of the TCPSS Act.
Section 4 - Definition
Section 4 of the instrument provides the definitions of key terms used in the instrument.
Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Contractor means the Australian Communications Exchange Limited ACN 003 044 899 (ACE) who have contracted with the Commonwealth to provide Relay Services for the NRS. The contract between the Commonwealth and ACE was entered into on or around 25 January 2013.
personal information means personal information as defined in the Privacy Act 1988.
Relay Services means the component of the NRS that ACE is required to provide under a contract with the Commonwealth. This component involves the relay of calls between the deaf, hearing and speech impaired communities and the broader community.
Representative means the Assistant Secretary of the Consumer Safeguards Branch of the Department, or any employee acting in that position from time to time. The Assistant Secretary role is a held by a Senior Executive Service Band 1 employee.
sensitive information means sensitive information as defined in the Privacy Act 1988.
users of the NRS includes specific categories of users or users of a particular service option of the NRS. This is an inclusive definition and means that the Representative can specify which category of NRS user, or which service access option, to which the request relates.
Section 5 – Rules
Section 5 sets out the rules that the Minister has determined must be complied with by ACE. Compliance with the rules is a condition of the contract between ACE and the Commonwealth.
The first rule, in subsection 5(1), is that where requested in writing by the Representative, ACE must produce to the Representative specified information, documents or copies of documents which relate to users of the NRS and their contact details, and any agreement or arrangements with third parties that are providing goods or services used by users of the NRS to access the NRS.
This rule is drafted broadly and will require ACE to provide the requested information or documents if it has control over the information or documents, but may not have possession or custody at a particular time. For example, ACE may have arrangements with the distributer of the CapTel handset and may be able to obtain the information or documents under that arrangement.
The rule also includes the ability to request information about any agreement or arrangements with third parties that are providing goods or services used by users of the NRS to access the NRS, such as the distributor of the CapTel handset.
It is expected that the information or documents the Representative will request from ACE will be customer contact information that will be used by the Department to notify CapTel handset users of the forthcoming changes to the NRS and to provide them with information on other NRS access options.
The rule provides that the Representative may specify the period in which ACE is required to provide the information or documents requested, and specify the manner and form in which the information or documents are provided.
Subsection 5(2) provides that a written request for information or documents under subsection 5(1) may include personal information or sensitive information as defined under the Privacy Act 1988. This makes it clear that the rule in subsection 5(1) extends to such information or documents, to the extent the information or documents requested contain such information.
Subsection 5(3) sets out a second rule that provides that where ACE does not have in its possession, the information or documents requested, it must take all reasonable steps to obtain the information or documents. The rule provides that ACE must provide the requested information or documents within the period, and in the manner and form, specified in the request by the Representative.
Subsection 5(4) is a rule that applies where information or documents requested by the Representative are subject to confidentiality restrictions, for example, contractual confidentiality clauses. In these circumstances, where such disclosure is not required by law, ACE must take all reasonable steps to obtain a waiver of confidentiality in order to be able to provide the information or documents to the Representative.
Subsection 5(5) sets out a fourth rule that enables the Representative to request that ACE communicate, or arrange for a third party to communicate, messages determined by the Representative about the NRS to users of the NRS. The Representative could require ACE to arrange for a third party to communicate the message about the NRS to users of the NRS, such as a third parties who provide goods or services used by users of the NRS to access the NRS.
Such a message may be advising users of the CapTel handsets about the impending phase-out of the CapTel handset as an access option via the NRS from 1 February 2020 and recommending users contact the NRS Helpdesk for further information.
Subsection 5(6) makes it clear that the request from the Representative could require the message be delivered by SMS, email, letter or other format determined by the Representative such as an announcement to users of CapTel handsets immediately following a connection to the NRS.
Subsection 5(7) sets out a fifth rule which will require ACE to take all reasonable steps to comply with any written direction or instruction issued by the Representative, provided that direction or instructions relates to the NRS. This rule may be used to assist with the transition to the new NRS provider in other circumstances besides those listed above.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Consumer Protection and Service Standards) (National Relay Service Rules) Determination 2019
This Disallowable Legislative Instrument 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 Disallowable Legislative Instrument
The purpose of the Telecommunications (Consumer Protection and Service Standards) (National Relay Service Rules) Determination 2019 (the Determination) is to set out rules that must be complied with by the contractor currently providing the National Relay Service (NRS), Australian Communication Exchange Limited (ACE). The rules will require ACE to provide information and assistance requested by the Department of Communications and the Arts (the Department) to assist the Department to provide necessary information to users of the CapTel captioned relay NRS option during the forthcoming transition between NRS providers.
Human rights implications
This Disallowable Legislative Instrument engages the following rights:
- the right to accessibility of communications in Article 9 of the Convention on the Rights of Persons with Disabilities;
- the privacy for persons with disabilities in article 22 of the Convention on the Rights of Persons with Disabilities; and
- the right to privacy in Article 17 of the International Covenant on Civil and Political Rights.
Article 9 of the Convention on the Rights of Persons with Disabilities requires parties to undertake to enable persons with disabilities to live independently and participate fully in all aspects of life. This includes taking appropriate measures to ensure persons with disabilities have access, on an equal basis with others, to information and communications, including access to emergency services.
The NRS provides equivalent access to a standard telephone services to people who are deaf, hearing-impaired or speech impaired.
The Disallowable Legislative Instrument protects the human rights of NRS users by allowing the Department to request information from ACE that will facilitate the Department’s contact with such users so that they have sufficient information on the other NRS options that will be available. This will assist them to continue to use the NRS to meet their communication needs during and after the transition process to a new NRS provider.
Article 22 of the Convention on the Rights of Persons with Disabilities states that no person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy.
Article 17 of the International Covenant on Civil and Political Rights states that no one shall be subjected to arbitrary or unlawful interference with his privacy.
The Disallowable Legislative Instrument would permit the Department to request information or documents from ACE that contain personal information about users of the NRS CapTel handset option for the sole purpose of informing those users about changes to the NRS. Accordingly, the collection of the personal information will be authorised under a Commonwealth law, and will not be arbitrary.
The action of requiring the information which may contain personal information is reasonable, necessary and proportionate to ensure that people using the NRS are able to continue to use the service during and after the transition to a new service provider.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights because it promotes the protection of human rights and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.