EXPLANATORY STATEMENT

Telecommunications (Consumer Protection and Service Standards) Act 1999

Determination under subsections 9(2D) and 9(3)

Issued by the Authority of the Minister for Communications

Purpose

The Telecommunications Universal Service Obligation (Standard Telephone Service—Requirements and Circumstances) Determination 2023 (the Requirements and Circumstances Determination) is made by the Minister for Communications (the Minister) pursuant to subsections 9(2D) and 9(3) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Act).

The Requirements and Circumstances Determination sets out circumstances in which the primary universal service provider is not required to provide a standard telephone service under the Universal Service Obligation (USO) and requirements for a valid request.

This Determination is a legislative instrument for the purposes of the Legislation Act 2003 and will repeal automatically at the start of 1 July 2026. This balances certainty for stakeholders, with the benefit of regular review of delegated legislation, in line with the guidance of the Senate Standing Committee for the Scrutiny of Delegated Legislation. As is the case with all legislative instruments, this Determination may be further amended or repealed earlier if further consideration of issues raised shows that is desirable, noting that this would necessarily involve further stakeholder consultation.

Background

Subsection 9(1)(a) of the Act provides that part of the USO is the obligation to ensure that a standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.

Subsection 9(2) of the Act requires the primary universal service provider to supply a standard telephone service to people on request.

Subsection 9(2D) of the Act enables the Minister, by legislative instrument to determine requirements for requests for a standard telephone service such as the form of the request or information to be provided in a request.

Subsection 9(3) of the Act enables the Minister to determine circumstances under which an obligation to supply a standard telephone service under the USO does not arise.

In the absence of arrangements being determined under subsection 9(2D) of the Act, the primary universal service provider would have considerable discretion to determine the valid form of a request for a standard telephone service. Similarly, in the absence of a determination under subsection 9(3) of the Act, the primary universal service provider would have a general obligation to seek to meet each and every request for a universal service standard telephone service whether or not it was reasonable to do so.

The Telecommunications Universal Service Obligation (Standard Telephone Service – Requirements and Circumstances) Determination (No. 1) 2011 (2011 Determination) has been in place since 2011. It was due to sunset on 1 April 2021, but its sunsetting was deferred to 1 April 2023[1]. Accordingly, the rules set out in the Requirements and Circumstances Determination reflect the arrangements set out in the 2011 Determination with minor changes. It continues to make clear when a standard telephone service is not reasonably required to be provided under the USO, and set out the form of an eligible request for a standard telephone service. These rules will continue to provide important clarity for the community, the primary universal service provider, the Australian Communications and Media Authority (ACMA), the Telecommunications Industry Ombudsman (TIO) and other stakeholders.

While the Requirements and Circumstances Determination deals with requirements for requests and exceptions to the USO requirements, the USO framework as a whole is designed to promote access to the STS. As a general principle, the primary universal service provider is expected to respond positively to requests received for STS, and to take all reasonable steps to facilitate such requests. Accordingly, the Requirements and Circumstances Determination sets out limited and distinct circumstances where exceptions to USO obligations might arise, and sets out specific kinds of structures where the primary universal service provider is not reasonably expected to provide STS.

When interpreting the provisions of the Requirements and Circumstances Determination, regard should be had to the objects of Part 2 of the Act. The objects of Part 2 are set out in section 8A of the Act and include giving effect to the policy principle that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to a standard telephone service.

Consultation

Public consultation on a draft Requirements and Circumstances Determination was undertaken from 21 November 2022 to 13 January 2023. Nine submissions were received from: Telstra, Optus, Australian Communications Consumer Action Network, Telecommunications Industry Ombudsman, NBN Co, Internet Association of Australia, National Farmers Federation, NSW Farmers and the Australian College of Nursing. While there are differing views on the approach to be taken, all submissions supported the ongoing need for an instrument dealing with the circumstances under which an obligation to supply a standard telephone service under the USO does not arise, and the form of such requests.

Legislative instrument and primary legislation

Delegated legislation rather than primary legislation has been used because the primary legislation provides for this under subsections 9(2D) and 9(3) of the Act. This recognises the likely level of detailed drafting that would otherwise be required in the Act, and the need for flexibility in responding to any possible changes in criteria against which a request for a standard telephone service under the USO may be made, or the minimum requirements for a request for a USO service. Moreover, the use of delegated legislation enables matters of detail to be dealt with relatively quickly, saving the Parliament’s valuable time, while leaving the detail of the requirements and circumstances subject to the scrutiny of the Parliament, and disallowance if warranted.

Regulatory Impact Statement

An assessment of the proposal to remake the Requirements and Circumstances Determination, incorporating minor changes and updates to reflect current legislative drafting practice, was provided to the Office of Impact Analysis (OIA). The OIA assessed the proposal as having no more than a minor regulatory impact and advised no RIS was required (OBPR23-04301).

Statement of compatibility with human rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.

Attachment A

Details of the Telecommunications Universal Service Obligation (Standard Telephone Service – Requirements and Circumstances) Determination 2023

1        Name of instrument

Section 1 provides that the name of this Instrument is the Telecommunications Universal Service Obligation (Standard Telephone Service—Requirements and Circumstances) Determination 2023.

2        Commencement

Section 2 provides for the Instrument to commence the day after it is registered on the Federal Register of Legislative Instruments.

3        Authority

Section 3 provides that this instrument is made under subsections 9(2D) and 9(3) of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

4        Interpretation

Section 4 defines the terms used in this Instrument. A number of defined terms draw on definitions from the Telecommunications Act 1997 and Telecommunications (Consumer Protection and Service Standards) Act 1999.

The definition of a person’s ‘principal place of residence’ requires the person making the request to either reside or intend to reside at that residence for 183 days or more per annum. This is intended to balance community access to services under the USO, against the costs to the primary universal service provider in installing infrastructure that may only be used part of the time. It would however always be open to the primary universal service provider to otherwise agree to such requests on a commercial basis. Consumers may also have access to mobile or satellite services, which will tend to moderate demand if such premises are occupied on a limited basis.

A ‘request’ is defined as a request made to the primary universal service provider for a standard telephone service using the provider’s website, by telephone or in person at a retail centre. This reflects that these are ways that Telstra, the current primary universal service provider, provides for making requests, and it is expected the primary universal service provider should continue to provide alternative ways for members of the community to request a service.

Subsection 4(2) defines ‘excluded premises’. Paragraph 7(1)(a) provides that the obligation to supply a standard telephone service on request does not apply in relation to the supply of a standard telephone service to ‘excluded premises’. If the premises is a type of premises set out in subparagraphs 4(2)(a)-(l) it will be an excluded premises. As an example, excluded premises can include a portable home, shelter, garden shed or a cubby house, are not considered permanent structures capable supporting independent living. Business premises are considered to be excluded premises if the person making the request does not intend to conduct business from the premises for more than six months per year.

Paragraph 4(2)(l) defines a residential premises that is not a distinct residence as an excluded premises. For the purpose of paragraph 4(2)(l), subsection 4(3) outlines a non-exhaustive list of premises that are ‘distinct residences’. Distinct residences are types of dwellings or structure where a primary universal service provider would generally be expected to provide a standard telephone service, unless there are other circumstances that prevent this. A distinct residence under subsection 4(3) may still be an ‘excluded premises’ if it meets any of the criteria in paragraphs 4(2)(a) to (k). Examples of distinct residences include a house, flat or apartment that is capable of supporting independent living, a distinct residence within a retirement village or nursing home, or a caravan or permanently moored boat.

Subsection 4(4) provides that a request for a standard telephone service made by an authorised person on behalf of another person will be considered to have been made by the person on whose behalf the request was made. This is to accommodate a situation where a person may prefer to have a relative or friend act on their behalf.

5        Schedules

Section 5 provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

6        Requirements for a request for supply of a standard telephone service

Section 6 clarifies that a reasonable request to supply a standard telephone service must comply with a number of requirements. A valid request must include the full name of the person making the request, the location of the premises where the standard telephone service is to be supplied, and the date the service is requested to be supplied. The need for these details is relatively self-explanatory, as it would otherwise be impractical for the primary universal service provider to fulfil a request if does not know the party it is contracting with or where a service is to be provided.

Subsection 6(d) provides that requests for provision of a standard telephone service to business premises must be accompanied by written verification that the business is carried on permanently at that address, including attestation that the business activities will be conducted permanently at the premises that is the subject to the request. It is envisaged an attestation could include details of the registered address of a business, or other relevant documents, such as a lease entered into by the business at a given address. In this context, it is not expected that ‘permanent’ would be read literally, but rather that details are provided which indicate an intent to carry on a business at the location as a going concern. For example, it would not necessarily be reasonable for the primary universal service provider to incur the expense of connecting a temporary business site (e.g. a ‘pop up’ location that a business will trade from for only a short period). However, it would always be open for a primary universal service provider to make a commercial decision to agree to supply services on a shorter-term basis. 

Any request must also include all other information that the primary universal service provider has requested that it reasonably requires for supplying a standard telephone service to the premises, and for the primary universal service provider to be satisfied that the circumstances in subsections 7(1) and (4) do not apply.

7     No obligation to supply a standard telephone service in certain circumstances

This section sets out limited and defined circumstances under which the primary universal service provider is not required to provide a standard telephone service, under paragraph 9(1)(a) or subsection 9(2) of the Act. Broadly, if the primary universal service provider relies on circumstances set out in Section 7 as reason for not having to provide a standard telephone service, it must provide the basis for this decision in writing, as per notification requirements set out in Section 8.

Subparagraph 7(1)(a)(i) specifies that a primary universal service provider is not obliged to supply a standard telephone service to excluded premises. Excluded premises are defined in subsection 4(2). However, unless there are broader circumstances that prevent connection (set out in subsection 7(4)), a primary universal service provider is expected to supply a standard telephone service on request to distinct residences. The instrument provides a list of premises that are considered distinct residences, including but not limited to a separate farm dwelling, a caravan or motorhome located at a caravan park where the person making the request is a long-term resident of the caravan park, or a distinct residence in a mining or isolated community. In contrast, individual rooms in hotels, nursing homes or hospitals would be considered excluded premises as they do not provide for independent private residency. While a primary universal service provider would generally be expected, if requested, to provide a standard telephone service to a nursing home or hospital, the supply of voice services to individual occupants of rooms within such premises would typically be arranged on a commercial basis or by using appropriate internal systems by the entities that own or operate those buildings.

Subparagraphs 7(1)(a)(ii)-(ix) set out a list of circumstances. If one or more of these circumstances apply to a request to supply a standard telephone service to a premises, a primary universal service provider is not reasonably required to supply that service. It is important to note that as circumstances can change, a primary universal service provider may need to reconsider subsequent requests on their merits, including if any circumstances have changed.

Subparagraph 7(1)(a)(ii) specifies that a primary universal service provider is not required to supply a standard telephone service if a request has already been made (a pending request). This includes if the pending request was made to an alternate carriage service provider or whether it was made by the person making the subsequent request, or a third party. This reflects a primary universal service provider is not expected to supply the STS where a process is already underway to provide STS to the same premises. However, subparagraphs 7(2)(a) and (b) provide a primary universal service provider must supply a standard telephone service to a premises if a pending request does not require the supply of equipment, good or other services under the Disability Discrimination Act 1992, but this equipment or services are required in the subsequent request, as set out in subparagraph 7(1)(a)(ii).

Subparagraph 7(1)(a)(iii) specifies that the primary universal service provider does not need to supply a standard telephone service to a premises if it believes that the person to whom the connection relates does not have the legal right to occupy the premises. For example, a primary universal service provider may form such a belief if the person requesting the service cannot supply relevant documentation, such as copies of a recent lease, rental agreement or statutory declaration from the property owner.

Subparagraph 7(1)(a)(iv) specifies that the primary universal service provider is not required to provide a standard telephone service if it reasonably believes that the person making the request unable or unwilling to pay applicable service changes, as determined following the process set out in Division 2 of Part 2 of the Telecommunications (Customer Service Guarantee) Standard 2011 (the CSG standard).

Subparagraph 7(1)(a)(v) specifies that a service provider does not need to supply a standard telephone service to a premises if it reasonably believes the request is fraudulent or frivolous. This section is intended to reduce the risk of the primary universal service provider incurring losses or other liabilities in respect of fraudulent transactions or activities, or incurring costs in managing and responding to frivolous requests.

Subparagraph 7(1)(a)(vi) clarifies that a standard telephone service does not need to be supplied to a premises if the person making the request is under 18 years of age and is not the legal owner or lessee of the premises specified in the request. However, subsection 4(4) also allows for requests to be submitted on behalf of another party.

Subparagraph 7(1)(a)(vii) clarifies that the primary universal service provider does not need to a supply a standard telephone service to a premises if requested by a different carriage service provider so that CSP can supply a service to its customer. This reflects that there are separate arrangements whereby carriage service providers can seek access to other networks to supply services under Part XIC of the Competition and Consumer Act 2010.

Subparagraph 7(1)(a)(viii) clarifies that the primary universal service provider is not required to supply a standard telephone service to a premises where it would contravene a law of the Commonwealth or applicable state or territory. For example, this may include laws dealing with workplace health and safety or laws dealing with planning and development, heritage, cultural or environmental issues. It is expected a primary universal service provider would need to consider any reasonable and practical steps available to it to lawfully avoid a potential contravention (for example, if an activity was generally prohibited by law unless a specific type of permit was granted, the primary universal service provider would be expected to explore the grant of such a permit before seeking to rely on this circumstance).

Subparagraph 7(1)(a)(ix) clarifies that, subject to subsection 7(3), the primary universal service provider is not required to supply a standard telephone service to a premises if the person making the request refuses to accept a reasonable offer for connection or supply of the service. Subsection 7(3) clarifies that an offer would not be considered reasonable if the primary universal service provider is required to offers to supply equipment or other goods or services, under subsection 9E(1) of the Act in order to comply with the Disability Discrimination Act 1992, but does not do so.

Subparagraphs 7(1)(b), (c) and (d) require that where the primary universal service provider does not accept a request to supply a STS, it must comply with different notification requirements. These are discussed further below at the notes for section 8.

Subsection 7(4) provides a list of circumstances in which a primary universal service provider is not required to provide a standard telephone service under Paragraph 9(1)(a) or subsection 9(2) of the Act, subject to also complying with notification requirements provided for by subsection 8(7).

Paragraphs 7(4)(a) and (b) provides that a primary universal service provider does not need to supply a service if the person making the request does not provide adequate resources for the necessary standard telephone services technology to be used, such as an electrical supply or payment for costs of trenching and laying underground cabling, or for the erection of a pole at the premises if underground cables are not feasible. This reflects that while the primary universal service provider will provide much of the infrastructure to provide connections, there may be circumstances where other works need to be completed, generally by developers, or the person responsible for the premises (e.g. the owner), before a service can be supplied. In has been longstanding practice that the person responsible for the premises is responsible, if required, for arranging infrastructure between the property boundary and the premises.

Paragraphs 7(4)(c) and (d) provides that the person making the request must agree to the primary universal service provider’s standard form of agreement, and provide identification. Telstra (the current primary universal service provider) makes its standard form of agreement publicly available from its website. This for example provides customers must accept responsibility for payment of services and also for the proper care of any telecommunications equipment installed at the premises.

Paragraphs 7(4)(e), (f) and (g) provide that the primary universal service provider is not required fulfil a request to supply a standard telephone service if there is not unimpeded access and egress to the premises, or land leading to the premises, to enable the provider to use electricity or infrastructure necessary for the connection and supply of a standard telephone service.

Paragraph 7(4)(h) states that a primary universal service provider does not need to fulfil a request to supply a standard telephone service for such time there are circumstances beyond its control, as determined through exemption provisions set out in section 21 of the CSG standard. Note that where the primary universal service provider provides standard telephone services in accordance with the USO, these will also be subject to the CSG standard. While the CSG allows for waivers in some instances, the primary universal service provider is prevented from seeking such waivers due to section 120(7) of the Telecommunications (Consumer Protection and Service Standards) Act 1999. Circumstances beyond the control of carriage services providers under the CSG standard may include disruptions caused by natural disasters or extreme weather events, damage to its facilities or infrastructure by a third party, or if the service provider is asked to provide emergency communications services that may impact supply of a standard telephone service, such as for a police or ambulance service. Subsection 21(3) of the CSG standard also currently provides that circumstances beyond the control of a service provider may include acts or omissions of another carriage service provider, but only where that other carriage service provider has also claimed a section 21 exemption under the CSG standard. NBN Co is a wholesale only provider, and therebefore is not subject to CSG arrangements. Consequently, section 7(5) provides that where there is damage to, or a failure of the NBN fixed line network that causes mass outages and restricts connection or supply of services, primary universal provider will also be able to rely on the circumstance in paragraph 7(4)(h). Otherwise, the primary universal service provider would be required to provide phone services (including, potentially, infrastructure) at its own cost in order to meet its STS obligation, despite having no responsibility for, or control over, that damage or failure.

Paragraph 7(4)(i) states that a primary universal service provider is not required to provide a standard telephone service where the installation or supply of services may pose a hazard to public safety. For example, this could be where the installation would impede a fire escape. However, such circumstances would be rare, as it would be expected that the primary universal service provider would seek to pursue different practical options to install and supply services to avoid or mitigate any hazards.

Paragraph 7(4)(j) provides that a primary universal service provider does not have to supply a standard telephone service if any staff or contractors of the primary universal service provider are at risk of being exposed or subject to threatening or intimidating behaviour from other people (including the person making the request) or animals; unhealthy or unsanitary conditions, such as the presence of potentially hazardous waste, infestation, chemicals or other conditions; or risk of injury from unsafe building space or substandard electrical fittings.

Paragraph 7(4)(k) clarifies that the primary universal service provider is not required to supply a standard telephone service if installation would have significant adverse environmental impact and is unable to be completed in compliance with Schedule 3 of the Telecommunications Act 1997 or is prevented due to the Environment Protection and Biodiversity Conservation Act 1999. Schedule 3 provides for carriers’ powers and immunities, including providing some exemptions from state and territory laws in particular cases so that carriers can access and enter land to inspect premises, install telecommunications facilities or maintain established facilities.

Paragraph 7(4)(l) states that a primary universal service provider is not required to connect a standard telephone service to a premises if the proper consent or authority from any third party is necessary to arrange installation works. This reflects that a primary universal service provider may require access to common property. For example, if a person makes a request for a standard telephone service for an apartment which is part of a larger complex, the primary universal service provider may need to seek consent from the building manager or owner to gain access to common equipment rooms or similar facilities in the apartment building in order to supply a standard telephone service.

Subparagraph 7(4)(m)(i) provides that the primary universal service provider is not required to supply a standard telephone service to a premise that already has a pre-existing standard telephone service that is supplied by a different carriage service provider. However, the primary universal service provider cannot rely on this exemption where a person at the premises is requesting Priority Assistance and the existing provider does not offer Priority Assistance. Telstra is the current primary universal service provider, and is subject to a separate carrier licence condition that requires it to offer arrangements which are designed to maximise expedited connection and repair of voice services to people with serious medical conditions. However, subsection 7(6) also provides that subparagraph 7(4)(m)(i) does not apply where the existing standard telephone service is a public mobile telephone service or a mobile satellite service. Subparagraph 7(4)(m)(ii) provides that the primary universal service provider is not required to supply a standard telephone service where it is already providing a standard telephone service in fulfilment of the USO. This is subject to subsection 7(7) that provides that subparagraph 7(4)(m)(ii) does not apply where the request would require the supply of equipment, or other goods or services, under subsection 9E(1) of the Act in order to comply with the Disability Discrimination Act 1992 and the existing standard telephone service does not require the supply of such equipment, or such goods or services.

8        Notification requirements

To rely on exemptions set out in subparagraph 7(1)(a) or subsection 7(4), the primary universal service provider must provide relevant notifications to the person making the request within 10 working days. These notifications are similar but not identical in all cases, but have some common requirements, including setting out a process whereby the primary universal service can be asked to reconsider its decision not to supply a service. Such notifications also explain that a complaint can be made to the Telecommunications Industry Ombudsman (TIO), following such a request for reconsideration by the primary universal service provider. However, notes are included throughout section 8 to draw readers attention to the fact that the TIO will only be in a position to investigate, or facilitate the resolution of a complaint, if the TIO has the jurisdiction to do so.

Notifications involving circumstances at subparagraphs 7(1)(a)

Subsection 8(3) deals with the detail of notifications where a primary universal service provider considers one or more circumstances at 7(1)(a) apply, with the exception of subparagraphs 7(1)(a)(iv) and (v), which deal with credit worthiness of customers and fraud respectively. These have different notification requirements as discussed further below.

Under subsection 8(3), the primary universal provider must provide a notification setting out the circumstances it is relying on, the grounds by which it judges those circumstances apply and the entitlement of the person making the request to request that the primary universal service provider reconsider its decision not to supply a service. Such a notification must also explain that a complaint can be made to the Telecommunications Industry Ombudsman (TIO), following such a request for reconsideration by the primary universal service provider. To facilitate these processes, contact details must be provided for the primary universal service provider and the TIO.

Notifications involving circumstances at subparagraph 7(1)(a)(iv)

Notifications provided for under subsections 8(4) and 8(5) are similar to those required by subsection 8(3), but provide for two separate notices to be provided to the person where the primary universal service provider has decided that the lack of creditworthiness circumstance (subparagraph 7(1)(a)(iv)) applies. An initial notice must be provided by the primary universal service provider within 10 working days and include a statement setting out the decision not to provide a service to the person making the request based on that person’s credit history, or any other relevant grounds; and the entitlement of that person to request that the primary universal service provider reconsider its decision not to supply a service.

If the person requests a reconsideration, and the primary universal service provider decides that the circumstance in subparagraph 7(1)(a)(iv) still applies to that person, within 10 business days of making that decision, it must send to that person a second written notification. This must be provided within 10 working days and include a statement setting out the decision not to provide a service to the person making the request based on that person’s credit history, or any other relevant grounds; and the entitlement of that person to request that the primary universal service provider reconsider its decision not to supply a service. This second notification must also explain that a complaint can be made to the TIO, following such a request for reconsideration by the primary universal service provider. Similar to 8(3) notifications, contact details must be provided for the primary universal service provider and the TIO.

Notifications involving circumstances at subparagraph 7(1)(a)(v)

Section 8(6) sets of how the primary universal service provider must provide written notifications if it reasonably believes a request for a standard telephone service at a premises is fraudulent, as per subparagraph 7(1)(a)(v).

The requirements for this notification are similar to those applying under subsection 8(3), except the notification here does not need to specify the precise circumstance (i.e. fraud). Instead, a general statement must be provided that the primary universal service provider has decided that the obligation to supply a standard telephone services does not apply to the request; and that the primary universal service provider, in making that decision, relied on the information provided to it by the person requesting the service. This is intended to ensure that any fraud inquiry being undertaken is not potentially undermined by the primary universal service provider having to make that person aware at a preliminary stage that they are being investigated for fraud, or by the primary universal service provider having to provide the person with the detailed grounds for such an investigation.

Notifications involving circumstances at subsection 7(4)

Subsections 8(7) and (8) set out the detail of written notifications that must be provided where the primary universal service provider believes that one or more of the circumstances listed in subsection 7(4) apply to a request. In such cases, a written notification that is similar to the notification required by subsection 8(3). However, subsection 7(4) deals with provisional circumstances which are not expected to be open-ended. Accordingly, the notification requirements here are slightly modified, as the primary universal service provider must also include, if practical, an estimate of how long those circumstances may apply. Section 8(8) provides that for the purposes of making that estimate, the primary universal service provider is to have regard to the circumstances and the resources that would needed to be committed to mitigate the consequences and minimise the duration of any grounds identified by the provider as the basis for the claimed circumstance.

9        Repeal  

Stakeholders had an opportunity to comment on the duration of the Requirements and Circumstances Determination. There were mixed views, with some stakeholders advocating that the Requirements and Circumstances Determination be subject to the 10-year sunsetting period provided for under the Legislation Act 2003. Others argued the ongoing need and effectiveness of the Requirements and Circumstances Determination should be revisited within a shorter period. Guidance from the Senate Standing Committee for the Scrutiny of Delegated Legislation Committee was also considered[2]. The Committee’s guidance is that instruments that provide an exemption from primary legislation (as in this case) should generally have a duration of no more than three years. The Requirements and Circumstances Determination is subject to a self-repeal provision and will repeal automatically from the start of 1 July 2026. This balances certainty for stakeholders, with the benefit of regular review of delegated legislation. It also provides for the possibility of extending the related Telecommunications (Statutory Infrastructure Providers—Circumstances for Exceptions to Connection and Supply Obligations) Determination 2021, with a view to both instruments being reviewed in parallel in future given the similarities between them. As is the case with all legislative instruments, this Determination may be further amended or repealed earlier if further consideration of issues raised shows that is desirable, noting that this would necessarily involve further stakeholder consultation.

Schedule 1 – Repeals

The Requirements and Circumstances Determination is a replacement for the Telecommunications Universal Service Obligation (Standard Telephone Service – Requirements and Circumstances) Determination (No. 1) 2011. Accordingly, this schedule entirely repeals that earlier instrument.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications Universal Service Obligation (Standard Telephone Service—Requirements and Circumstances) Determination 2023

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

The Universal Service Obligation (USO) is a long-standing legislated consumer safeguard that provides that standard telephone services (STS) and payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business. The USO is set out in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (‘the Act’).

Subsection 9(1)(a) of the Act provides that part of the USO is the obligation to ensure that a standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.

Subsection 9(2) of the Act requires the primary universal service provider to supply a standard telephone service to people on request.

Subsection 9(2D) of the Act enables the Minister, by legislative instrument to determine requirements for requests for a standard telephone service such as the form of the request or information to be provided in a request.

Subsection 9(3) of the Act enables the Minister to determine circumstances under which an obligation to supply a standard telephone service under the USO does not arise.

The primary objective of the Requirements and Circumstances Determination is to provide clarity and consistency for stakeholders by setting out circumstances where the primary universal service provider is not required to provide a standard telephone service under the Universal Service Obligation (USO) and requirements for a valid request.

Human rights implications

No human rights issues were raised during the consultation process. The Requirements and Circumstances Determination does not engage any of the applicable rights or freedoms, and is compatible with 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.

However, access to telecommunications services is increasingly seen as important to broader social, economic, political and cultural participation.

Alongside the statutory infrastructure provider regime set out in Part 19 of the Telecommunications Act 1997, which is focused on maximising access to baseline broadband services, the USO regime is focused on maximising access to baseline voice services.

Accordingly, the Requirements and Circumstances Determination starts from the principle that each premises in Australia should have access to a standard telephone service as the default, and it is only in specific and exceptional circumstances that this principle should be limited. In applying the Requirements and Circumstances Determination, the primary universal service provider should preference supply over refusing such requests. However, the Requirements and Circumstances Determination recognises that there may be circumstances where it is simply impractical, unsafe, unreasonable or wholly unaffordable for the primary universal service provider to provide USO services and specifies these limited set of circumstances for the greater confidence and certainty of consumers and other stakeholders.

Conclusion

The Requirements and Circumstances Determination is compatible with human rights as it does not raise any human rights issues.