EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2015
Telecommunications Act 1997
Purpose
The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2015 (the Determination) to replace the Telecommunications (Section of Telecommunications Industry) Determination No. 2 of 2001 (the 2001 Determination).
The ACMA has made the Determination as the 2001 Determination was due to be automatically repealed on 1 April 2015, in accordance with Part 6 of the Legislative Instruments Act 2003 (the LIA).
Legislative Provisions
Part 6 of the Telecommunications Act 1997 (the Act) provides that:
- bodies representing sections of the telecommunications industry may develop industry codes;
- the ACMA may register these codes; and
- the ACMA may direct a particular participant in the telecommunications industry to comply with such a code.
Industry codes apply to sections of the telecommunications industry as defined in subsection 110(2) of the Act. In some circumstances, parties who undertake a telecommunications activity may not fall within a section of the telecommunications industry as defined. Subsection 110(3) of the Act provides that the ACMA may, by written instrument, determine that persons carrying on, or proposing to carry on, specified kinds of telecommunications activities constitute a section of the telecommunications industry.
Section 109 of the Act identifies those activities considered to be telecommunications activities for the purposes of Part 6 of the Act. Paragraph 109(c) identifies “supplying goods or services for use in connection with the supply of a listed carriage service” as a telecommunications activity.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make a legislative instrument, the power shall be construed to include a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument. The Determination is made under subsection 110(3) of the Act and revokes the 2001 Determination.
Background
The 2001 Determination was made under subsection 110(3) of the Act and determined the National Relay Service Provider (the NRSP) to be a section of the telecommunications industry for the purposes of Part 6 of the Act.
The 2001 Determination had the effect that the NRSP was subject to relevant industry codes and specifically the Communications Alliance “Handling of Life Threatening and Unwelcome Communications” Industry Code (C525:2010) (the Unwelcome Communications Code) which establishes a coordinated approach by industry participants to the handling of life threatening and unwelcome communications.
The 2001 Determination is due to be automatically repealed on 1 April 2015 in accordance with the sunsetting provisions in the LIA. Accordingly, it is necessary to remake the 2001 Determination in order to ensure that the NRSP will continue to be bound by the Unwelcome Communications Code, and to facilitate the registration of any revised code. The Determination remakes the content of the 2001 Determination in substantially the same form.
Consultation
Subsection 17(1) of the LIA requires that, before making a legislative instrument, the ACMA must be satisfied that any consultation it considers to be appropriate and that is reasonably practicable to undertake, has been undertaken. The ACMA has consulted with industry stakeholders and the general public on making the Determination.
The ACMA published a consultation paper and a draft instrument on its website on 4 February 2015. The consultation paper explained the sunsetting process and the ACMA’s preliminary view that the existing arrangements under the 2001 Determination should be saved from automatic repeal and remade without any significant changes. Emails were sent to 21 stakeholders including Federal government agencies associated with emergency services, Australian Communication Exchange Limited (the current NRSP), representatives of emergency services (police, fire, and ambulance), telecommunications carriers and carriage service providers and the Australian Communications Consumer Action Network alerting them to the consultation and inviting them to provide a submission.
The ACMA received submissions from the Telecommunications Universal Service Management Agency (TUSMA), Australian Communication Exchange Limited, Australian Communications Consumer Action Network, and Communications Alliance Limited. TUSMA noted that there were currently two contracts for the National Relay Service, one being for the provision of the relay services and the other being for the provision of outreach services. As the Determination applies to the provision of the relay services TUSMA suggested for the purpose of clarity that the name of the Determination specifically reference the relay services of the National Relay Service. The title of the Determination was subsequently modified in response to this submission.
Regulatory Impact
The Office of Best Practice Regulation (OBPR) has considered the matter and formed the opinion that the impact of the Determination is minor or machinery in nature and, on that basis, a Regulatory Impact Statement is not required. (The OBPR reference is ID 17205.)
Notes on the Determination
Details of the Determination are set out in Attachment A.
Statement of compatibility with human rights
Section 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 LIA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.
This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Determination determines the NRSP to be a section of the telecommunications industry for the purposes of Part 6 of the Act.
As noted above, the 2001 Determination had the effect that the NRSP was subject to the Unwelcome Communications Code. The Determination will have the effect that the NRSP will continue to be subject to the Unwelcome Communications Code.
The Unwelcome Communications Code imposes obligations on the NRSP to follow the agreed processes for handling life threatening and unwelcome communications received by customers with a hearing and / or speech impairment. This includes communicating with the customer, police and other carriers and carriage service providers as well as offering a 24 hours a day, 7 days per week contact point for communications tracing and customer information. The adoption of the Unwelcome Communications Code by the NRSP ensures that a hearing and / or speech impaired telecommunications service customer has equivalent access to general customers in dealing with life threatening and unwelcome communications.
Given that the Determination has the effect that the NRSP will be subject to the Unwelcome Communications Code, arguably it engages the applicable human right in Article 9 of the Convention on the Rights of Persons with Disabilities (the Convention).
Australia is a signatory to the Convention which amongst other things, aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and provides that people with a disability are entitled to exercise human rights and fundamental freedoms on an equal basis with others.
Article 9 requires State Parties such as Australia to take appropriate measures to ensure that people with a disability have access on an equal basis with others, to information and communications, including information and communications technologies and systems. These measures are to include the identification and elimination of obstacles and barriers to accessibility, and shall apply to, inter alia, information, communications and other services, including electronic services and emergency services.
By making the NRSP subject to the Unwelcome Communications Code, the Determination promotes equal access for people who are deaf or have a hearing or speech impairment, because it ensures that these people have equivalent access to the measures to assist with the handling of life threatening and unwelcome communications that are available to other users of standard telephone services.
The Determination is compatible with human rights and in particular, advances the human rights in Article 9 of the Convention by promoting equal access for persons with a disability to information and communications.
Attachment A
Notes on Instrument
Section 1 Name of Determination
This section provides that the title of the Determination is the Telecommunications (Relay Service Provision for the National Relay Service Provider - Section of the Telecommunications Industry) Determination 2015.
Section 2 Commencement
This section states that the Determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Revocation
This section has the effect of revoking the Telecommunications (Section of Telecommunications Industry) Determination No.2 of 2001 [F2005B00225].
Section 4 Definitions
This section sets out some key terms used in the Determination. The terms are largely the same as those used in the instrument which the Determination replaces other than the following terms:
- “NRSP” has been amended to specifically refer to a person who provides a relay service for the NRS, rather than a person who provides the NRS;
- “relay service” means a service that allows a user of the service to communicate with other persons by means of an intermediary that relays communications between the user and the other person or persons; and
- “replacement Act” which has been included in order to refer to any Act made after commencement of the Determination and which replaces the TUSMA Act insofar as the TUSMA Act deals with the National Relay Service.
Section 5 Application
This section states that the Determination applies to a person who is a NRSP.
Section 6 Specification of telecommunications activity
This section states that the Determination relates to the provision of a relay service for the National Relay Service.
Section 7 Section of telecommunications industry
This section states that the Determination applies to persons who carry on, or propose to carry on, the National Relay Service. Such persons are determined to constitute a section of the telecommunications industry to be identified as the “National Relay Service Provider”.