TCP Code: Parliament likely to open the door to amendment

2012 TCP CodeLast Thursday, the Senate’s Environment and Communications Legislation Committee gave a green light to the Telecommunications Legislation Amendment (Consumer Protection) Bill 2013 (TLACP Bill) that was introduced into Parliament back in March.

The TLACP Bill would tweak the Do Not Call Register Act, and provide for independent reviews of the TIO Scheme.  But for our purposes, its key payload is a new process that would allow the TCP Code to be amended.

The problem under the current law

Under existing law, the only want to vary an industry code under the Telco Act is to replace the entire Code after following a lengthy consultation and development process.  That makes it impractical to refine codes or correct errors in them.  The full code development process is a very big deal.

The proposed solution

The TLACP Bill provides for an expedited, streamlined process for amending an industry code.

  1. Industry code sponsor (Communications Alliance in the case of the TCP Code) drafts variation.
  2. If changes are minor, code sponsor gives straight to ACMA.
  3. If changes are not minor, code sponsor publishes it on its website, calls for comments, allows at least 30 days for responses, considers comments, publishes comments (although the Senate Committee has recommended that confidential and defamatory elements be omitted.)
  4. Code sponsor consults with ACCC.
  5. Code sponsor consults with TIO / Information Commissioner / consumer advocates (in certain cases).
  6. Code sponsor gives variation to ACMA.
  7. ACMA satisfies itself that variation provides appropriate community safeguards where relevant, and is otherwise appropriate.
  8. If ACMA is satisfied that all above steps have been completed, it registers the variation.

Why it’s a good idea

In its submission to the Senate Committee, Communications Alliance pointed out that:

… the ability to vary codes will:

  • allow industry’s self-regulatory framework to be more responsive to changing
  • consumer priorities, industry circumstances and technologies;
  • allow industry to amend code provisions that may be ambiguous or confusing and to correct minor editorial issues without the need to undertake wide public consultation; and
  • allow the inclusion of additional consumer protections within codes as necessary.

Why it’s happening right now

It can’t be a coincidence that Parliament is moving to allow codes to be amended within a few months of the TCP Code starting.  The Code is riddled with mistakes, ambiguity and unintended consequences.  It needs a thorough clean up.

Some issues are relatively self-contained and will be easy to fix.  But others are structurally embedded into the TCP Code and would involve extensive revision to correct, probably to an extent that falls outside the intended use of the expedited variation process.  Assuming the TLACP Bill is enacted, it will be interesting to see how bravely it is used.

Even with the less dramatic mistakes in the TCP Code, there’s a challenge.  Some of them are so silly that correcting them could feel a little embarrassing.  But it must be done.  This is the law of the land we are talking about, and it should be clear and consistent.

About Peter Moon

A telco lawyer with a truckload of experience
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