Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022

EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Telecommunications Act 1997

Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022

Authority

The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022 (the Rules) under section 529 of the Telecommunications Act 1997 (the Act).

Subsection 529(1) of the Act allows the ACMA to make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers (CSPs) to keep and retain records. Under subsections 529(2A) and (2B), such record-keeping rules may also require those carriers or CSPs to prepare reports consisting of information contained in those records, and to give any or all of the reports to the ACMA.

Subsection 529(4) limits the scope of the ACMA’s power, such that the ACMA cannot make record-keeping rules requiring the keeping or retention of records unless the records contain, or will contain, information that is relevant to the performance of the ACMA’s telecommunications functions or the exercise of the ACMA’s telecommunications powers.

The ACMA’s power in section 529 to make record-keeping rules was enlarged by the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 (CCS Act). Relevantly, the CCS Act amended section 529 in a manner empowering the ACMA to make record-keeping rules requiring that:

• reports be prepared on the basis of information contained in those records; and
• those reports must be given to the ACMA.

The amendment to section 529 of the Act formed part of a broader package of measures to strengthen consumer safeguards in the telecommunications sector and included amendments to the Universal Service Obligation (USO) regime in Part 2 of the Telecommunications (Consumer Protections and Service Standards) Act 1999 (TCPSS Act).

The USO is the obligation to ensure that standard telephone services and payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry-on business. This includes the obligation to supply, install and maintain payphones in Australia.

Telstra is currently the sole Primary Universal Service Provider (PUSP) in relation to payphones under the USO. The CCS Act amended the TCPSS Act by inserting several provisions empowering the Minister to make instruments affecting the PUSP’s payphone related USO obligations, including:

• USO payphone performance standards (section 12ED);
• USO payphone minimum performance benchmarks that the PUSP must meet or exceed (section 12EE);
• Rules about the location of USO payphones (section 12EF);
• Rules concerning public consultation processes regarding the location or removal of USO payphones (section 12EG);
• Rules concerning the resolution of complaints about the location and removal of USO payphones (section 12EH).

On 29 March 2022, the Minister made the Telecommunications (Payphones) Determination 2022 (the Payphones Determination) under subsections 12ED(1), 12EE(1), 12EE(6), 12EF(1), 12EG(1) and 12EH(1) of the TCPSS Act. The Payphones Determination replaces the suite of instruments that previously specified the PUSP’s payphone carriage service obligations. The Payphones Determination commenced on 1 April 2022.

Obligations related to payphone benchmark standards and benchmarks, to which these Rules relate, are specified in Part 3 of the Payphones Determination.

The Rules replace the Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2012 (2012 RKRs) which sunsetted on 1 April 2022.

A provision-by-provision description of the Rules is set out in the notes at Attachment A.

The Rules are a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).

Purpose and operation of the instrument

In the Payphones Determination, the Minister determined standards relating to the rectification of faults or service difficulties with payphones and payphone carriage services, and minimum performance benchmarks for compliance by the PUSP with those standards. Under subsection 12EE(9) of the TCPSS Act, a PUSP must meet or exceed the minimum performance benchmarks.

Following the commencement of the Payphones Determination, the ACMA has the power to take enforcement action where a PUSP has failed to meet the minimum performance benchmarks. To monitor performance and if necessary, take enforcement action, the ACMA requires reliable records to be kept and reported upon by a PUSP. The range of enforcement options for non-compliance with the Payphones Determination includes formal warnings, infringement notices[1], remedial directions and civil penalty proceedings in the Federal Court.

The Rules ensure that a PUSP keeps the necessary records, and provides the ACMA with the necessary information to enable the ACMA to effectively monitor and enforce compliance with the benchmarks relating to payphones set by the Minister under section 12EE of the TCPSS Act.

The Rules require a PUSP to:

• keep and retain records in relation to compliance with Part 3 of the Payphones Determination; and
• prepare and give to the ACMA, reports in the form specified in the Rules and which consist of information contained in those records.

Compliance with the Rules is a requirement of section 530 of the Act, and making an incorrect record is an offence under section 531. The range of enforcement options for non-compliance with the Rules includes formal warnings, infringement notices, remedial directions and civil penalty proceedings in the Federal Court.

Reporting periods and level of disaggregation

Under the Rules, a PUSP must provide performance reports for each financial year.

Unless otherwise agreed by the ACMA in writing, a PUSP must provide reports to the ACMA within 40 working days of the end of each financial year.

The Rules require some of the reported information to be disaggregated into community size classification (Urban, Rural and Remote areas are referred to in the Payphones Determination definitions and obligations).

Fulfilment of fault or service difficulty reports that overlap two reporting periods

Where fulfilment of a PUSP performance obligation (fault or service difficulty rectification) spans two reporting periods, the performance for that specific job should be reported in the later period. 

A PUSP must send reports prepared under the Rules to an email address published on the ACMA’s website as well as provide a hard copy (hand delivered or by registered post to an office of the ACMA).

Documents incorporated by reference

The Rules incorporate the following documents by reference:

• the Act;
• the TCPSS Act;
• the Payphones Determination.

The Acts and legislative instruments listed above can be accessed, free of charge, from the Federal Register of Legislation: http://www.legislation.gov.au.

Consultation

Before the instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA. 

On 21 December 2021, the ACMA published on its website a consultation paper outlining its proposal to make the Rules and inviting persons to make submissions to the ACMA about the proposal (consultation 48/2021). Submissions closed on 31 January 2022. Specific contact was made with Telstra, as the current PUSP, which was also later provided with a draft of the instrument on 11 April 2022.

The ACMA received feedback from the Australian Communications Consumer Action Network (ACCAN) and Telstra in relation to the proposal to remake the Rules. both were supportive of the proposal and ACCAN also suggested the removal of subsection 12(4)[2] of the 2012 Rules.

Telstra was supportive of the instrument being remade noting that the new instrument would necessarily reflect any changes made by the Minister to the benchmarks specified in the Payphones Determination. Telstra also submitted that the instrument should only be remade for a short period, to facilitate a broader review of all regulations governing the operation of payphones by the Department of Infrastructure, Transport, Regional Development and Communications (the Department).  Any review of the broader suite of payphones regulations are a matter for the Department[3].

Regulatory impact assessment

The Office of Best Practice Regulation (OBPR) has considered the matter and formed an opinion that the remaking of the Rules is minor in nature and that no further regulatory impact analysis is required.

The OBPR reference number is OBPR21-01324.

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislation Act 2003 applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument. 

The statement of compatibility set out below has been prepared to meet that requirement.

Overview of the instrument

The Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022 (the Rules) are made under subsection 529 of the Telecommunications Act 1997 (the Act). 

Section 529 of the Act provides that the Australian Communications and Media Authority (the ACMA) may, by written instrument, make rules requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records.

The ACMA has made the Rules to replace the Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2012 which sunsetted on 1 April 2022. The Rules ensures that a primary universal service provider (PUSP) keeps the necessary records, and provides the ACMA with the necessary information to enable the ACMA to effectively monitor and enforce compliance with the benchmarks relating to payphones set by the Minister under section 12EE of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (TCPSS Act).

The Rules require a PUSP to:

• keep and retain records in relation to compliance with Part 3 of the Telecommunications (Payphones) Determination 2022; and
• prepare and give to the ACMA, reports in the form specified in the Rules and which consist of information contained in those records.

Human rights implications

The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms. 

Conclusion

The Rules are compatible with human rights as they do not raise any human rights issues.

Attachment A

Notes to the Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules ­

Part 1–Preliminary

Section 1 Name of Rules

This section provides for the instrument to be cited as the Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022.

Section 2 Commencement

This section provides for the Rules to commence at the start of the day after the day they are registered on the Federal Register of Legislation. 

The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.

Section 3 Authority

This section identifies the provision of the Act that authorises the making of the Rules, namely section 529 of the Act.

Section 4 Definitions

Subsection 4(1) defines several key terms used throughout the Rules.

A number of other expressions used in the Rules are defined in the Payphones Determination, the Act and the Acts Interpretation Act 1901.

Section 5 Applicable payphone

This section defines the concept of an “applicable payphone”. An applicable payphone must both be situated at a site specified in the payphone register and also must be provided in accordance with paragraph 9(1)(b) and subsection 9(2A) of the TCPPS.[4]

The meaning of applicable payphone is important for the purposes of recording data in Part 2, and reporting on that data in Part 4 and in Schedules 1 and 2 of the Rules.

Section 6  Maximum rectification period

This section describes the applicable benchmark standard timeframes within which a PUSP must rectify a fault or service difficulty for urban, rural and remote areas by reference to subsection 13(1) of the Payphones Determination. These periods are provided in the following table:

The maximum rectification period is important for the purposes of recording data in Part 2, and reporting on that data in Part 4 and in Schedules 1 and 2 of the Rules.

Section 7 References to other instruments

This section provides that in the Rules, unless the contrary intention appears:

• a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
• a reference to any other kind of instrument is a reference to that other instrument as in force from time to time.

Part 2–Keeping of Records

This Part deals with the recording by a PUSP of its performance against the Payphones Determination.  The Payphones Determination contains benchmark standards in relation to maximum periods for the rectification of faults or service difficulties relating to payphones and payphone carriage services.

Section 8 Records relating to faults or service difficulties

This section sets out details of what information the PUSP must include in its records relating to reports of payphone faults or service difficulties in respect of an applicable payphone or a carriage service supplied by means of an applicable payphone. The PUSP must keep records of information including the following:

• if the PUSP produced a fault or service difficulty report, the date and time the report was produced;
• if the PUSP received a fault or service difficulty report, the name of the person who reported it, and the date and time the report was made;
• the location of the payphone or the payphone in respect of which the payphone carriage service is supplied;
• when the fault or service difficulty was rectified;
• the “rectification period” in business days;
• whether the payphone to which the report relates is in an urban area, rural area or remote area.

As noted above, the PUSP is obliged to keep a record of the name of the person who reported the fault or service difficulty. If that person is a natural person, then the PUSP (which is Telstra) will be collecting personal information. Telstra will be obliged to deal with that personal information in line with its legal obligations under the Privacy Act 1988 including its obligations under APP6 (use or disclosure of personal information) and APP11 (security of personal information).

A PUSP must also record certain details if the PUSP did not comply with a payphone benchmark standard (under the Payphones Determination) in rectifying the fault or service difficulty: 

• due to any law that prevented the PUSP from so complying; or
• due to circumstances beyond the control of the PUSP.

Section 9 Records relating to a primary universal service provider’s procedures

Under paragraph 12(1)(a) or (b) of the Payphones Determination, a PUSP is not exempt from compliance with a payphone benchmark standard unless it has procedures in place to ensure that it does not rely on an exemption in circumstances that are not beyond its control. Accordingly, section 9 requires the PUSP to keep records of these procedures.

Part 3–Retention of Records

Section 10 Period for retention of records

This section requires a PUSP to retain the records specified in Part 2 for at least two years from the end of the relevant financial year.

Part 4–Reporting

Section 11 Requirement to prepare compliance reports

This section requires a PUSP to prepare compliance reports and sets out the frequency of reporting which a PUSP must undertake. 

The information to be included in the compliance reports is contained in Schedule 1, and the required format is set out in Schedule 2.

Section 12 Requirement to give compliance reports to the ACMA

This section sets out the timing and the means by which a PUSP must give a compliance report to the ACMA. A PUSP is required to give compliance reports to the ACMA no later than 40 business days after the end of the financial year or such later time as agreed in writing by the ACMA. A compliance report must be sent by email to an address advised by the ACMA on its website.

Part 5–Audit

Section 13  Auditing compliance with these Rules

If the ACMA forms a view on reasonable grounds that an audit is necessary, it may write to a PUSP requiring it to engage an auditor to conduct an audit of the PUSP’s compliance with the Rules. If the ACMA forms a view on reasonable grounds that the initial audit is inadequate, it may require a follow-up audit.

Section 14  Audit terms of reference

A PUSP that has received an audit notice given under subsection 13(1) is required to provide draft terms of reference for the audit to the ACMA for approval.

The ACMA may require the PUSP to make changes to the draft terms of reference.  If the revised terms do not give effect to the changes required by the ACMA and are rejected, the ACMA may specify the terms of reference for the audit.

This section specifies timescales for the above approval process as well as certain matters that must be included in the terms of reference and the objectives of the audit.

Section 15  Nomination of auditor

A PUSP that has received a notice under paragraph 14(3)(a), 14(5)(a) or 14(5)(b) (relating to audit terms of reference) is required to notify its choice of auditor to the ACMA for approval. 

The ACMA may require the PUSP to choose another auditor and if the ACMA does not approve the new choice of auditor, it may specify an auditor to conduct the audit, or require the PUSP to choose an auditor from a specified group of auditors.

This section specifies timeframes for the above approval process and sets out the PUSP’s obligation to take all necessary steps to ensure that the auditor complies with the applicable terms of reference under section 14 and is able to form an opinion in relation to the audit objectives specified in subsection 14(7).

Section 16 Requirement to provide audit report to the ACMA

Where a PUSP has been audited, the PUSP is required to submit a copy of the audit report to the ACMA within 14 days of its receipt, unless a longer period is allowed by the ACMA.

This section also sets out details of what the audit report must include.

Schedule 1 – Information to be included in a compliance report

Schedule 1 specifies the information to be included in a compliance report prepared under section 11.

Schedule 2 – Form of compliance report

Schedule 2 specifies the format of the compliance report prepared under section 11 in three separate tables. Schedule 2 also includes instructions for completing the tables.

[1] Subsection 12EE(9) of the TCPSS Act was declared a listed infringement notice provision by the ACMA for the purposes of subsection 572E(7) of the Act (see the Telecommunications (Listed Infringement Notice Provisions) Declaration 2022).

[2] Section 12 of the 2012 RKRs enabled the ACMA to audit compliance with the rules. Subsection (4) provided that the ACMA may only request an audit if it forms a view on reasonable grounds that an audit is necessary. (An equivalent provision is now in section 13 of these Rules).

[3] If there is any such review, and if it does not necessitate any adjustment to the Rules, that adjustment can be made at the relevant time.

[4] The “payphone register” is required to be maintained by the PUSP under the Payphones Determination. Subsection 4(2) of the Rules provides that the term “payphone register” has the same meaning given by the Payphones Determination.