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 2025
Telecommunications Act 1997
Purpose
The Australian Communications and Media Authority (ACMA) has made the Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2025 (the Determination) to replace the Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2015 (the 2015 Determination).
The ACMA has made the Determination as the 2015 Determination was due to be automatically repealed on 1 April 2025, in accordance with Part 6 of the Legislation Act 2003 (the LA).
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) of the Act 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 repeals and replaces the 2015 Determination.
Purpose and operation
The 2015 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. It replaced the original Telecommunications (Section of Telecommunications Industry) Determination No. 2 of 2001.
The 2015 Determination and its predecessor identified the NRSP to be a section of the telecommunications industry. As a result, the NRSP is subject to relevant industry codes developed by Communications Alliance; in particular, the C525:2023 Incorporating Amendment No. 1 2024 Handling of Life Threatening and Unwelcome Communications” Industry Code (the Unwelcome Communications Code) which establishes a coordinated approach by industry participants for the handling of life threatening and unwelcome communications. The NRSP is also subject to an associated industry code: C536:2020 Emergency Call Services Requirements Code in its capacity as the emergency call person (ECP) for the emergency service number 106. This code sets out obligations on carriers, carriage service providers and ECPs in relation to the provision of emergency call services.
The 2015 Determination is due to be automatically repealed on 1 April 2025 in accordance with the sunsetting provisions in the LA. Accordingly, the purpose of the Determination is to repeal and replace the 2015 Determination in order to ensure that the NRSP will be bound by relevant codes such as the Unwelcome Communications Code. The Determination remakes the content of the 2015 Determination in substantially the same form with only minor changes to update references and definitions.
A provision-by-provision description of the Determination is set out in the notes at Attachment A.
The Determination is a disallowable instrument under the LA.
Consultation
Before the Determination 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.
The ACMA consulted with key industry stakeholders on making the Determination. The ACMA emailed the draft Determination and invitation for comment to key stakeholders on 7 November 2024. The invitation for comment explained the sunsetting process and the ACMA’s preliminary view that the existing arrangements under the 2015 Determination were operating effectively and efficiently and therefore should be remade without significant changes. Emails were sent to 9 key stakeholders including Concentrix Services Pty Ltd (the current NRSP), the National Emergency Communications Working Group (NECWG) which is the representative industry body for emergency services (police, fire, and ambulance), Communications Alliance, telecommunications carriers and the Australian Communications Consumer Action Network (ACCAN), alerting them to the consultation and inviting them to provide a submission.
The ACMA received responses from Concentrix Services, Telstra, TPG Telecom, NECWG, ACCAN and the Department of Infrastructure, Transport, Regional Development, Communications and the Arts. All submitters supported making the Determination. The ACMA considered the submissions before making the Determination.
Regulation Impact Statement
The Office of Impact Assessment (OIA) 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 OIA reference is OIA24-08517.)
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 LA 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 2015 Determination had the effect that the NRSP was subject to the Unwelcome Communications Code. By replacing the 2015 Determination, the Determination ensures 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. Compliance with the Unwelcome Communications Code by the NRSP ensures that a hearing and / or speech impaired telecommunications service customer has equivalent access to regulatory protections when dealing with life threatening and unwelcome communications as other customers.
Given that the Determination has the effect that the NRSP will be subject to the Unwelcome Communications Code, 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 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 identifying the NRSP as a section of the telecommunications industry and thereby making it 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 sections of the Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2025
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 2025.
Section 2 Commencement
This section states that the Determination will commence on the day after the day it is registered on the Federal Register of Legislation.
Section 3 Authority
This section states that the Determination is made under subsection 110(3) of the Telecommunications Act 1997.
Section 4 Repeal of the Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2015
This section has the effect of repealing the Telecommunications (Relay Service Provision for the National Relay Service – Section of the Telecommunications Industry) Determination 2015 [F2015L00366].
Section 5 Object
This section states that the object of the Determination is to identify the NRSP to be a section of the telecommunications industry for the purposes of Part 6 of the Telecommunications Act 1997.
Section 6 Definitions
This section defines key terms used in the Determination.
Section 7 Application
This section states that the Determination applies to a person who is a NRSP.
Section 8 Specification of telecommunications activity
This section states that for the purposes of the Determination, the specified telecommunications activity is the provision of a relay service for the National Relay Service.
Section 9 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, which is the telecommunications activity specified in section 8 of the Determination. Such persons are determined to constitute a section of the telecommunications industry for the purposes of Part 6 of the Telecommunications Act 1997 and in accordance with subsection 110(4) of that Act, are identified as the “National Relay Service Provider”.