Bills Digest No. 127 2004–05
Telecommunications (Consumer Protection and Service Standards)
Amendment (National Relay Service) Bill 2005
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Telecommunications (Consumer Protection and Service Standards) Amendment
(National Relay Service) Bill 2005
Date Introduced: 10
February 2005
House: House of Representatives
Portfolio: Communications, Information Technology and the Arts
Commencement: The main provisions commence on Royal Assent
To amend the Telecommunications (Consumer
Protection and Service Standards) Act 1999 to allow the National
Relay Service (NRS) to be provided by more than one service provider
after the contract with the current provider expires on 30 June 2006.
More than one provider may need to be engaged in two circumstances;
firstly, in any transition or handover period during which the current
provider and a new provider(s) may need to operate concurrently; and,
secondly, in the event that more than one provider is selected to provide
the service.
People who are deaf, hearing impaired and/or speech impaired are able
to communicate with each other—or with anyone else—by having their messages
‘relayed’ by a human telephone operator. The NRS enables communications
to be initiated by the person who is deaf, hearing impaired and/or speech
impaired or by someone wanting to communicate with such a person. Emergency
calls are also handled by the NRS. In essence, the NRS is a text-voice
translation service for users of the standard telephone service.
In general terms, the NRS allows communications to be effected in the
following ways:
-
by having the spoken word converted by the operator into text which
is then conveyed to the other person and read on a special device
-
by having text which is produced by the user on a special device
read aloud by the operator to the other person.
The National Relay Service is mandated under Part 3 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
The legislation is currently drafted in such a way that there can be
only one provider of the National Relay Service. That is, the legislation
speaks of there being one NRS provider which is engaged under one contract
with the Commonwealth.(1) The legislation does not contemplate
that there can be more than one provider or that the NRS can be provided
under more than one contract. The current provider, since 1995, of
the NRS is a not-for-profit company, Australian Communications Exchange
Ltd (ACE).
In addition to the relay service, ACE also provides what is known as
the “outreach program”. The outreach program has two main functions;
to increase public awareness of the relay service and to provide training
to users of the service including training in the use of teletypewriters
(TTY). The inclusion of these functions arose out of the Government’s
acceptance of recommendation 16 of the Besley Report in 2001 (see below).(2)
The contract between the Commonwealth and ACE expires on 30 June 2006.
Prior to that time, the Commonwealth is proposing to conduct a competitive
tender process. In the lead up to the commencement of that process,
in December 2004 the Department of Communications, Information Technology
and the Arts (the Department) released a draft statement of requirement
for the NRS (“the SoR”) asking for comments by 18 February 2005.(3)
In the event that another provider(s) is selected to provide the call
relay service and the outreach program, the legislation, as it is presently
drafted, will not permit the concurrent engagement of ACE and the new
provider(s) during any transition or handover period. As noted, this
is because the legislation contemplates that there is only one provider.
To allow for the possibility of a transition period, it is necessary
to amend the legislation.
In addition to providing for a concurrent engagement of two providers
during any transition period, the amendments will allow for the possibility
that more than one provider may be selected to provide the call relay
service and the outreach program. For instance, the relay service and
the outreach program might have different providers.
To allow for the possibility of there being more than one provider
it is necessary to amend the legislation.
The Labor Party supported the Bill when it was debated in the House
of Representatives.(4)
On their face, both of the reasons given for the amendments are sound.
However, in relation to the second point, it would appear that the Department
presently intends that there will be only one contracted NRS provider.
This is apparent from the Department’s Draft SoR for the NRS which was
released for comment in December 2004.(5) The draft SoR
sets out the proposed framework for the provision of the NRS after the
expiry of the ACE contract in June 2006. The SoR, when finalised, will
form the basis of a competitive tender process that the Department will
conduct in 2005.
The SoR states that the NRS is made up of two discrete components –
the relay service and the outreach program – and that ‘tender responses
will be required to meet the service requirements for both components.(6)
Furthermore, it states that;
“The NRS provider will be required to be a single corporate legal
entity.
It is proposed that there will be a contract between the Department
on behalf of the Commonwealth and the NRS provider, for the provision
of the NRS.” (7)
The SoR does envisage that the single successful NRS provider will
be permitted to use subcontractors to provide the outreach program (but
not the call relay service component of the NRS(8)). While
this would have the effect of allowing for two different providers for
each component of the NRS it is not necessary to amend the legislation
to achieve this result which is permissible under the legislation as
it stands. In these circumstances, the amendment of the legislation
is not justified by this rationale.
It is, however, necessary to amend the legislation to allow for a transition
period in the event that another provider is successful in the tender
process.
Whether the Department’s contemplation of a change of provider is likely
to lead to an ‘efficient, effective and ethical’ use (proper use) of
Commonwealth resource, as required by section 44 of the Financial
Management and Accountability Act 1997 (the FMA Act), is an open
question. While it is common practice, and in accordance with the Commonwealth
Procurement Guidelines,(9) to use a tender process to select
service providers, it is not necessary in all cases. The proper use
of Commonwealth resources is the overriding consideration.
In a situation in which:
-
the NRS is a critical service, especially in relation to emergency
calls
-
the current provider has generally performed well (as to which,
see below),
-
service level problems with the existing provider could be dealt
in a new contract; and in the annual NRS plan which must be prepared
by the provider; and
-
there are no other local providers presently providing a similar
relay service (there is only one NRS), although as the Allen Consulting
Group noted in its report (see below) there are viable alternative
suppliers of the NRS;
it is at least questionable whether proper use would be made of Commonwealth
resources and whether the interest of NRS users are likely to be best
served by a competitive tendering process.
To shed some light upon the earlier comment on the performance of the
current provider the following a very brief survey of publicly available
reports about the NRS—and ACE in particular—is provided. Some of these
canvass the views of interest groups.
At least five publicly available reports and discussion papers deal
with the provision of the NRS.
Two reports dealing with telecommunications generally touched on the
provision of the NRS. The Report of the Telecommunications Services
Enquiry in 2000 (‘the Besley Report’)(10) was followed by
the Report of Enquiry into Regional Telecommunications service in 2002
(‘the Estens Report’)(11). To the extent that these reports
were relevant to the provision of the NRS, they made the following observations:
-
the Besley Report recommended that a training program for users
of TTY machines be incorporated into the NRS.(12)
-
the Estens Report noted the Government’s positive response to
the Besley recommendation and the efforts that had been made by
the Department to develop a new framework for TTY training. This
included the successful negotiation with ACE to undertake the training
function.
A report commissioned by the Human Rights and Equal Opportunity Commission
was released in 2003.(13) While the report deals at great
length with telecommunications services for the disabled, there is little
critical discussion about the provision of the NRS by ACE. The report
does, however, note that;
“The National Relay Service is highly regarded in Australia,
and ACE has clearly developed a great deal of technical expertise and
empathy with consumers. ACE has been a regular contributor to telecommunications
inquiries, raising important issues: any-to-any text connectivity, disability
equipment programs, emergency access, and mobile access denied.”(14)
Allen Consulting
Report – reported performance of ACE 2003
In 2002 DCiTA commissioned the Allen Consulting Group (“ACG”) to conduct
an evaluation of the NRS and the current provider, ACE. NRS users and
stakeholders were involved in this evaluation. The full ACG report
is not publicly available but the summary is generally favourable.(15)
The report notes that;
Stakeholders consulted were of the opinion that ACE has
delivered a generally good service, with significant improvements in
some areas. ACE has, on the whole, had a sound compliance record across
the period from 1998-99 to 2001-02. There are however, specific areas
where compliance could be improved, namely call blockage (the number
of calls that receive a busy signal) and Outreach (a required program
that promotes NRS services and provides information and training for
current and potential users of the service).
In relation to the outreach program, the Report notes that:
Of all aspects of the NRS examined in this evaluation, the outreach
program has attracted the most comment from stakeholders. While most
are generally satisfied with the quality of the Outreach activities
undertaken by the NRS Provider, they think more could be done.
One way of improving outcomes may be for Outreach funds to be separated
from the call minute rate funding used for other aspects of the service.
This change may improve transparency and provide an opportunity for
NRSCC members to be more fully engaged in advising and commenting
on more effective ways to market the NRS more widely.
In relation to the existence of possible alternative suppliers, the
Report notes;
It is important to understand that the process of assessing the requirements
(or indeed testing the market) for an alternative supplier of the
NRS involves more than just identifying individual firms with particular
capabilities. Given the importance of the NRS, the process needs to
be carefully managed to ensure the potential risks associated with
shifting from an existing supplier to a new supplier are minimised.
Alternative Suppliers
…
An examination of possible alternative suppliers in the
current marketplace indicated that there are viable alternative suppliers
of the NRS.(16)
The Australian Communications Authority monitors the performance of
the NRS provider and is required to report after the end of each financial
year. In its first published report after the ACG report was released,
for the 2002/2003 financial year, the ACA reported that for the year
2002/2003;
ACE met all five of the service performance standards
and nine of the ten Community outreach program performance indicators.
The overall result represents an improvement on the performance achieved
in 2001–02, when ACE met four of five performance standards and 11 of
16 Community outreach program performance indicators.
This was the most recent report tabled in Parliament. On the basis
of past patterns, the report for the 2003/2004 year can be expected
to be tabled during the March 2005 sitting period.
The Bill proposes to amend the Telecommunications (Consumer Protection
and Service Standards) Act 1999 (‘the Act’). In general terms,
the amendments change all of the expressions which state or imply that
there is only one NRS provider and only one contract.
Under Item 1 of the Bill, the definition of “NRS contract” is amended
to permit a part of the NRS to be provided under a contract. This will
allow for the possibility that different parts of the NRS may be provided
by different providers. Currently, it is implicit that there can be
only one contract for the whole of the NRS. Similarly, Item 2 amends
the definition of “NRS provider” to recognise that a provider may provide
a part of the NRS. Currently, it is implicit that a single NRS provider
will provide the whole of the NRS.
Items 3, 4,5,6 and 8 make minor amendments to clarify that that the
NRS may be provided by more than one provider. Item 7 corrects a minor
error in the name of some legislation.
Item 9 makes the same minor amendment as Item 8 in Part 1.
It is unusual for government procurement choices to be constrained
by legislation in the way that the Act does presently. However, it
is explicable by the fact that, at the time of commencement of the Act,
ACE was already providing the NRS and simply continued to do so. The
legislation simply described the existing state of affairs. Furthermore,
at the time that ACE was originally engaged, the NRS did not include
the training function which is the major part of the outreach program.
This was included later in response to the recommendations of the Besley
Enquiry. Therefore, at the time of the drafting of the original provisions
of the Act, there would have been no need to allow for the division
of NRS services amongst different providers.
On their face, these amendments are uncontroversial. Both reasons
given for the amendments – to allow for a transition period and to allow
for the engagement of more than one provider–are sound. However, it
would appear that the Department does not, in fact, intend to engage
more than one provider for the NRS. While there is still a need for
the amendments to allow for the concurrent operation of two providers
during any transition period the implication of this is that the advantages
of these amendments will be realised only if a new provider selected.
In the case of a critical outsourced service such as NRS, Parliament
may wish to consider whether the process of selecting – and the engagement
of – a new provider through a competitive tendering process is an efficient,
effective and ethical use of Commonwealth resources as required by the
FMA Act. The current provider has been the subject of generally favourable
reports and is the only established local provider of such a service
(simply because there is only one NRS) and any service level issues
with that provider could be dealt with in the new contract and yearly
NRS plans.
While the amendments seem, on their face, to be uncontroversial, the
practical implementation of them in the manner which seems apparent
from the Departments draft statement of requirement may not lead to
the same conclusion.
-
See, for example, section 94 definition of “NRS provider” and “NRS
contract”.
-
Telecommunications Services Enquiry, Connecting Australia (Besley
M.A., Chairman) Department of Communications, Information Technology
and the Arts, Canberra, 2000.
-
http://www.dcita.gov.au/tel/access_for_people_with_disabilities/national_relay_service_-_draft_statement_of_requirement
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Mr Stephen Smith, Second Reading Speech: Telecommunications (Consumer
Protection And Service Standards) Amendment (National Relay Service)
Bill 2005, House of Representatives, Debates, 16 March 2005,
pp 75–76.
-
NRS draft statement of requirement
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ibid., paragraph 3, page 11 SoR.
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ibid., subparagraph 3.1.1 page 11.
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ibid., subparagraph 3.1.2, page 12.
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http://www.finance.gov.au/ctc/commonwealth_procurement_guide.html
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http://www.telinquiry.gov.au/final_report.html
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http://www.telinquiry.gov.au/rti-report.html
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Besley, op. cit., p182.
-
Human Rights and Equal Opportunity Commission, “When the Tide
Comes In: Towards Accessible Telecommunications For people with
Disabilities In Australia” ,discussion paper prepared by Jolley
W, Human Rights and Equal Opportunity Commission, June 2003.
-
ibid., page 99.
-
Department of Communications, Information Technology and the Arts,
Summary of the Report on the Evaluation of the National Relay Service,
report prepared by Allen Consulting Group, Canberra 2002; available
at: http://www.dcita.gov.au/__data/assets/pdf_file/8356/Detailed_Summary.pdf
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ibid., p. 6.
Jonathan Chowns
7 March 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
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