Telecommunications (Customer Service Guarantee – Retail Performance Benchmarks) Instrument 2023

The instrument introduces or refines several key concepts that determine its scope and operation.

Qualifying carriage service provider. Defined in section 4(1) as a carriage service provider that, on the last day of the financial year preceding the benchmark period, supplied 100,000 or more CSG services and was obliged to comply with any one or more of the performance standards in respect of those services. This captures the largest telcos - essentially Telstra, Optus, TPG Telecom and possibly others - but excludes smaller players. The threshold is based on total CSG services supplied, not per geographic area.

Area thresholds. Rather than applying benchmarks uniformly, the instrument ties benchmark obligations to the volume of services a provider supplies in each area type. The thresholds are set by reference to the number of CSG services supplied in that area on the last day of the preceding financial year: urban areas (10,000), major rural (1,000), minor rural (1,000), rural (1,000 - but note that rural is the sum of major and minor rural) and remote (500). A provider only needs to meet the benchmark for new connections in an area type if it meets the relevant threshold. For rectifications, the rural area threshold is used; for in-place connections, the threshold is not area-specific - the 90 per cent applies to all in-place connection requests globally. The appointment-keeping benchmark is also global.

Geographic classifications. These are based on population. Urban area: 10,000 or more. Major rural area: greater than 2,500 but less than 10,000. Minor rural area: greater than 200 but not more than 2,500. Remote area: any geographic area that is not an urban, major rural or minor rural area. Note that “rural area” is defined as either major or minor rural. This means areas with populations of 200 or fewer are not “rural” - they are “remote” by default. This is a relatively low remote threshold; many small hamlets and outback communities will fall into that category.

Performance standards. Each benchmark measure refers to the “connection period performance standard”, “rectification period performance standard” and “appointment-keeping performance standard”. These are not defined in this instrument directly but by reference to the CSG Standard (the legislative instrument made under sections 115, 117 and 120 of the Act as in force from time to time). The CSG Standard sets the maximum guaranteed connection and rectification periods (e.g., for standard connections in urban areas, a maximum of 10 working days, with longer periods for rural and remote areas). The benchmarks require that the provider meets those maximum periods at least 90 per cent of the time.

Benchmark period. A financial year is the unit of measurement. The first benchmark period is the financial year in which the instrument commenced (2023-24). This creates a timing issue: the instrument commenced on 1 September 2023, halfway into the first month of the new financial year. Providers must therefore calculate compliance for the entire 2023-24 financial year, but the instrument was not in force for the first two months (July and August 2023). The instrument does not state that it applies retrospectively. A literal reading would mean that only requests, faults or appointments that fell due after commencement count toward the denominator. The ACMA would likely need to issue guidance on this.

New CSG standard. Direction 2023 requires ACMA to make a new CSG standard. Once that standard commences, this instrument is repealed 36 months later. The new CSG standard will presumably replace the existing CSG Standard and may introduce different performance periods, compliance mechanisms or enforcement options. This instrument is a bridge.

The direct duty-holders are qualifying carriage service providers that supply 100,000 or more CSG services. This is a small cohort of the largest fixed-line and fixed-wireless retailers in Australia. Based on market share, these would include Telstra, Optus, TPG Telecom (including iiNet, Internode, etc.), and possibly Vocus and Aussie Broadband depending on their customer numbers. Smaller providers (e.g., regional ISPs, NBN resellers with fewer than 100,000 services) are not captured, even if they supply services in remote areas. This asymmetry may affect competition: large providers bear the compliance and record-keeping burden of meeting 90 per cent benchmarks across multiple geographic segments, while smaller competitors face no such aggregate obligation (although they remain subject to individual CSG Standard obligations and potential customer compensation).

Indirectly, the instrument affects consumers in all areas, but especially those in rural and remote zones where meeting the 90 per cent benchmark is likely more difficult due to infrastructure constraints, distance and workforce availability. The instrument does not impose any new remedies for individual consumers; it only creates an aggregate measure that ACMA can use to take enforcement action. Consumers whose connections or faults exceed the CSG Standard maximum periods may still be entitled to automatic compensation under the CSG Standard itself, but that compensation regime is separate from these benchmarks.

The instrument also affects ACMA as the enforcement body. It must assess compliance each financial year, decide whether to take action for contraventions, and potentially issue directions or seek civil penalties under the Act. The benchmarks are “minimum benchmarks” for the purposes of section 117B of the Act, which ACMA must consider when determining whether to take certain enforcement steps. The instrument does not specify the penalty for a contravention; that is left to the Act (likely civil penalties up to 10,000 penalty units for a body corporate, per contravention). Given that each failure to meet a benchmark is a separate contravention, and there can be up to 10 separate benchmarks (one in-place connection, up to four area-specific new connection benchmarks, up to three area-specific rectification benchmarks, and one appointment-keeping benchmark), a single provider could face up to nine separate contraventions in one benchmark period. The potential liability is significant.

For the broader industry, the instrument signals the government’s intent to maintain and refine aggregate performance expectations while a new CSG standard is developed. It provides continuity for the regulator and the market, but the sunset clause means providers cannot rely on these benchmarks being static. The new CSG standard may impose different or more onerous obligations.

The primary duty under this instrument is for a qualifying carriage service provider to meet each applicable benchmark. That is a duty to achieve the 90 per cent compliance rate for each relevant category. The duty is not to comply with the CSG Standard in every individual case - that duty already exists under the CSG Standard itself. Rather, it is to ensure that, in aggregate across a financial year, at least 90 per cent of the relevant requests, faults or appointments are handled within the maximum periods.

The duty attaches only if the provider meets the corresponding area services threshold. For example, if a provider supplies 15,000 CSG services in urban areas but fewer than 1,000 in major rural areas, it must meet the new connection benchmark for urban areas but not for major rural areas. The provider has a right to exclude from its rectification benchmark calculation any faults or service difficulties that relate to an inoperative enhanced call handling feature on services that include such a feature. This is a narrow exclusion and the provider must be able to identify which faults qualify.

Providers also have the right to rely on the CSG Standard’s provisions that allow for longer or shorter connection or rectification periods by individual arrangement with customers. The definitions in section 4(1) recognise that the “connection period performance standard” and “rectification period performance standard” include the period provided under such an arrangement if one is in place. So if a customer agrees to a longer connection time in exchange for a discount, that arrangement period is the applicable standard for that request. The 90 per cent benchmark is measured against that agreed period, not the default maximum. This gives flexibility to providers that offer tiered service levels.

Consumers do not obtain any direct right from this instrument. They cannot sue a provider for failing to meet a benchmark. Their rights remain under the CSG Standard (automatic compensation for delays) and under general consumer law. The instrument is a regulatory tool, not a source of private rights. A consumer might, however, use the fact that a provider failed to meet a benchmark as evidence in an ACMA complaint or in a submission to the regulator.

Another duty, though implicit, is record-keeping. To demonstrate compliance, a provider must accurately record the total number of requests, faults and appointments, the geographic location of each customer, whether the performance standard was met, and whether any exclusions apply. The instrument does not prescribe record-keeping methods, but the burden of proof in any enforcement action would likely rest on the provider if it claims compliance. Non-compliance could be inferred from published data or from consumer complaints.

Section 11 provides that each instance of a qualifying carriage service provider failing to meet or exceed any one of the performance benchmarks in sections 8, 9 or 10 constitutes a separate contravention of the relevant performance benchmark. The instrument does not specify the penalty for such a contravention. That is left to the Act. Subsection 117B(2) of the Act (not reproduced in this instrument but referred to in the authority) likely provides that ACMA may give a direction or the Federal Court may impose a civil penalty for a contravention of a benchmark. Civil penalty provisions typically attract a maximum penalty of up to 10,000 penalty units for a body corporate (currently 1 penalty unit is $313, so 10,000 units is $3.13 million). However, each contravention is separate, so a provider that fails to meet both the in-place connection benchmark and the urban new connection benchmark would face two separate contraventions, potentially totalling over $6 million. The Act may also allow the court to order remediation, compliance programs, or reporting.

ACMA is the primary enforcement body. It may investigate compliance, require information, issue infringement notices (with lower penalties), or seek court orders. The instrument does not create a right of private enforcement; only ACMA can take action. This concentrates enforcement discretion in the regulator, which may be influenced by resourcing, political priorities, or negotiated undertakings. The compliance history of the provider under the previous 2011 instrument would be relevant. There is also scope for providers to self-report and negotiate enforceable undertakings with ACMA to avoid litigation.

The benchmarks are “minimum benchmarks”, which suggests that ACMA may take into account factors such as whether the failure was due to factors outside the provider’s control (e.g., extreme weather, infrastructure damage, or third party delays). However, the instrument itself does not include any defence or exception - unlike the underlying CSG Standard, which allows for extensions in extraordinary circumstances. The benchmark is a pure numerical test: if the provider falls below 90 per cent, it is a contravention. The only concession is the exclusion for enhanced call handling features in rectification calculations. This hardness means that providers must invest in sufficient capacity and redundancy to ensure aggregate performance even during disruptions.

The sunset clause (section 7) also affects enforcement. Once the new CSG standard commences, this instrument remains in force for 36 months, but during that period ACMA may need to decide whether to pursue enforcement for past benchmark periods that have already concluded. The maximum period for bringing civil proceedings under the Act may be relevant.

This instrument sits within a broader legislative framework governing telecommunications consumer protection. It is made under subsection 117B(1) of the Act, which empowers the Minister to determine minimum benchmarks for compliance with the CSG Standard. The Act itself is the primary law; this instrument adds specificity to the enforcement regime.

The instrument defines its key terms by reference to the CSG Standard (the existing instrument under sections 115, 117 and 120 of the Act). That standard sets the actual maximum connection and rectification periods, the circumstances in which extensions apply, and the amount of automatic compensation. The benchmarks do not alter those individual periods; they only aggregate performance over a financial year. A provider could meet the 90 per cent benchmark while still failing thousands of individual customers - each of whom would be entitled to compensation under the CSG Standard. Conversely, a provider could fail the benchmark while still compensating customers under the CSG Standard. The two regimes are complementary, not overlapping.

The instrument also interacts with the Telecommunications Act 1997 via the definition of “carriage service provider” (section 87 of that Act). The definition of “qualifying carriage service provider” uses the same meaning. This ensures consistency across the regulatory framework.

The Direction 2023 (Telecommunications (Customer Service Guarantee) Direction 2023) is a separate instrument that directs ACMA to make a new CSG standard. This instrument is a transitional measure pending that new standard. Once the new standard commences, the old CSG Standard will presumably be repealed. This instrument will be repealed 36 months later, not immediately. That three-year buffer allows ACMA and industry to transition to whatever new benchmarks or compliance mechanisms the new CSG standard introduces. It also means that for a period, there could be two sets of benchmarks in force: the ones in this instrument (for the old CSG Standard) and potentially new ones under the new CSG standard (if the new standard includes its own benchmarks). The interaction is unclear: if the new CSG standard includes benchmarks, they would supersede this instrument after the three years, but during the overlap providers must comply with both. The Minister presumably intends that the new CSG standard will either replace the need for a separate benchmark instrument or include its own benchmarks, leading to the repeal of this instrument.

State and territory consumer laws (Australian Consumer Law) also apply to telecommunications services. A failure to connect or repair within a reasonable time may also breach consumer guarantees, leading to individual remedies. Those laws are not affected by this instrument. The instrument does not create any immunity from state-based enforcement.

Finally, the instrument interacts with competition law. Larger providers face compliance costs that smaller providers do not. This could raise barriers to entry or expansion in rural and remote areas, where meeting the 90 per cent benchmark may be more expensive for a smaller new entrant that grows to exceed 100,000 services but still has a thin rural customer base. However, for now the threshold protects smaller providers from the benchmark obligation, which may preserve competition at the lower end of the market.

This instrument is a new legislative instrument that replaces the 2011 benchmarks. It has not been amended since it was made on 31 August 2023. The instrument itself contains only one amendment: the repeal of the earlier instrument via Schedule 1. No other amending instruments are referenced.

The previous instrument (the 2011 version) used different definitions. For example, the 2011 instrument defined “urban” as a population of 10,000 or more, “rural” as a population between 200 and 9,999, and “remote” as under 200. The 2023 instrument splits rural into major (2,500-9,999) and minor (201-2,499), and raises the remote threshold to under 200 (or any area not classified otherwise). The threshold for meeting the remote area services threshold was also raised from 200 to 500 CSG services. These changes reflect updated population data and policy preferences to hold providers to higher standards in remote areas.

The instrument’s sunset clause (section 7) is itself an amendment mechanism: it will repeal the instrument automatically 36 months after the new CSG standard commences. This is a novel feature; the 2011 instrument had no such built-in expiry. The Minister’s explanatory statement (not provided) would likely explain that the instrument is intended as a transitional measure while the ACMA develops a new CSG standard that will incorporate its own compliance benchmarks. Once that new standard is in place, a separate instrument under section 117B may no longer be necessary. The 36-month period gives industry time to adjust.

Future amendment history will depend on whether the new CSG standard is delayed. If it takes longer than 36 months to develop and commence, this instrument remains in force indefinitely (the repeal is tied to the new CSG standard’s commencement, not to a fixed date). That introduces uncertainty: providers cannot predict when the regime will change. They must monitor the progress of the Direction 2023 and the new standard.

Practitioners should note that the instrument is made by the Minister, not by ACMA. Any amendment to this instrument would require a new legislative instrument from the Minister. ACMA does not have power to amend the benchmarks directly; its role is limited to enforcement and to making the new CSG standard.

As of the time of writing, there is no known litigation under this instrument. It commenced only on 1 September 2023, and the first benchmark period (2023-24) has only recently concluded. Enforcement action, if any, would likely take time to reach court. However, the predecessor (the 2011 instrument) had a modest litigation history. ACMA occasionally issued infringement notices or accepted enforceable undertakings from providers that failed to meet benchmarks. Notable cases under the 2011 instrument include ACMA actions against Telstra for connection delays in rural areas (resulting in a direction and compliance program). The 2023 instrument’s stricter definitions and higher remote threshold may prompt further enforcement, especially for providers struggling to meet the 90 per cent target in remote areas.

Potential areas of legal challenge include the definition of “qualifying carriage service provider”. A provider might dispute whether it supplied 100,000 CSG services or more, or whether it was obliged to comply with the performance standards in respect of those services (e.g., if it had exemptions). The calculation of whether a provider meets an area threshold (s 6) is based on “the last day of the financial year preceding that benchmark period”. That snapshot could be manipulated or could exclude services that were supplied during the year but not on the last day. A challenge could argue that the threshold should be an average, not a point-in-time measure. The instrument is silent on this, so a court would likely interpret the plain meaning.

Another litigation risk is the interaction between the instrument and the underlying CSG Standard. The instrument defines “connection period performance standard” as either the guaranteed maximum period or any shorter/longer period agreed by arrangement. If a provider uses longer arrangement periods (e.g., with business customers) to artificially lower the standard it must meet, ACMA might argue that the arrangement is not genuine or that the provider is evading the benchmark. The instrument does not define what constitutes a valid arrangement; reliance on the CSG Standard’s provisions may be contested.

Litigation could also arise from the exclusion of enhanced call handling faults (s 9(3)). A provider and ACMA might disagree on what constitutes an “inoperative enhanced call handling feature” or whether the service “include[s] an enhanced call handling feature”. This could require expert evidence.

Finally, the sunset clause raises a novel issue: if the new CSG standard commences but is later overturned by the Administrative Appeals Tribunal or a court, does the 36-month period still run? The instrument says “the new CSG standard ACMA made in accordance with the Telecommunications (Customer Service Guarantee) Direction 2023 commences”. If the Direction is invalid, the new standard would have no effect, and the instrument’s repeal condition would never be satisfied, leaving it in force indefinitely. This creates legal uncertainty for providers planning for the transition.

Several provisions in this instrument may catch unwary providers or practitioners.

First benchmark period includes past. The instrument commenced on 1 September 2023. The first benchmark period is the 2023-24 financial year (section 4(3)). This means the provider must calculate compliance for the entire 12 months, but the instrument was only in force for the last 10 months. There is no transitional provision addressing whether only requests after commencement count. A literal reading suggests all requests during the benchmark period are included, even those before commencement, because the definition of “connection period performance standard” and “rectification period performance standard” refer to the CSG Standard which was already in force. However, the benchmark obligation itself (s 8, 9, 10) cannot have applied before the instrument’s commencement because it did not exist. A provider could argue that only requests received after commencement should be counted. The safest approach is to calculate separately and be ready to defend whichever method ACMA adopts. This ambiguity could be a compliance trap.

Remote area is a residual category. “Remote area” means any geographic area that is not urban, major rural or minor rural. Because rural areas only include populations between 200 and 9,999, any area with 200 or fewer inhabitants is automatically remote. This captures tiny localities, caravan parks, isolated homesteads, mines, and even uninhabited land. Providers must identify which of their customer premises qualify. The threshold for triggering a remote area obligation is 500 CSG services supplied in remote areas in the preceding financial year. A provider might not realise it has crossed that threshold, especially if its remote customer base is widely scattered. Once crossed, the provider must meet the 90 per cent benchmark for new connections in remote areas and for rectifications in remote areas, which may be much harder to achieve than in urban areas.

Multiple contraventions per period. Section 11 says each failure to meet any one benchmark is a separate contravention. A provider that fails the in-place connection benchmark, the urban new connection benchmark, and the urban rectification benchmark could face three contraventions, not one. The instrument does not say that only one benchmark per area is contravened. Worse, the new connection benchmarks are broken down by area threshold even if the provider meets multiple thresholds. So a provider meeting thresholds for urban, major rural, minor rural and remote could face four separate new connection contraventions (if it fails all). That is potentially nine contraventions in one year.

Exclusion is narrow. The enhanced call handling exclusion only applies to faults or service difficulties relating to an “inoperative enhanced call handling feature on services that include an enhanced call handling feature”. Many services do not include such a feature; for them, all faults are included. The exclusion does not cover any other type of fault. Providers must maintain accurate records to distinguish these faults from others.

Repeal is not automatic in any event. The instrument is repealed only once the new CSG standard commences, and then after 36 months. But if the new standard never commences (e.g., due to legal challenge or change in government policy), this instrument continues indefinitely. Providers cannot rely on the sunset to plan.

Definitions rely on the CSG Standard as in force from time to time. If the CSG Standard is amended during the life of this instrument, the benchmarks automatically track those changes. For example, if the CSG Standard changes the maximum connection period for remote areas, the benchmark measure adjusts accordingly. Providers must keep on top of CSG Standard amendments.

No carve-out for uncontrollable events. Unlike the CSG Standard, which allows for extensions in circumstances beyond the provider’s control, the benchmarks have no such safety valve. A provider can meet the 90 per cent in every month but a major natural disaster could tip it below the threshold for the full year. There is no defence of force majeure or reasonable steps. This places a heavy premium on forecasting and capacity planning.

Appointment-keeping benchmark is geographic-agnostic. All appointments count, regardless of where they occur. This could penalise providers that serve remote areas where travel distances make appointment adherence harder, because the benchmark is global. A provider with a large urban base will compensate, but a provider with a high proportion of remote customers may struggle.

Compliance requires systematic data collection, calculation and strategic management. The process can be broken into steps.

Step 1: Determine whether you are a qualifying carriage service provider. On the last day of each financial year, count the number of CSG services you supplied where you were obliged to comply with any of the CSG Standard performance standards. If the count is 100,000 or more, you are captured for the next benchmark period. This obligation arises annually; a provider might qualify in one year and not the next.

Step 2: Determine which area thresholds you meet. For each benchmark period, identify your supply numbers in each area classification as at the last day of the preceding financial year. Use the population-based definitions in section 4(1) to classify the location of each CSG service. Calculate: (a) total urban services; (b) total major rural services; (c) total minor rural services; (d) total rural services (major + minor); (e) total remote services. Compare with thresholds: urban 10,000; major rural 1,000; minor rural 1,000; rural 1,000; remote 500. If you meet the threshold for an area type, the corresponding benchmark obligation applies.

Step 3: Collect data for the benchmark period (financial year). For each relevant category:

• In-place connection requests: all requests for connection at a site that has an in-place connection. Record whether each request was complied with within the applicable maximum period (or the period agreed by arrangement). Calculate total number of such requests subject to the connection period performance standard during the benchmark period. Compute percentage of requests where compliance was achieved. If 90 per cent or higher, benchmark met.
• New connection requests by area: repeat for each area type where you meet the threshold. You need to know the geographic area for each new connection request. Calculate compliance percentage per area.
• Rectification requests: for faults or service difficulties reported by customers, allocate by area (urban, rural, remote) based on customer location. Exclude any faults or service difficulties that are exclusively related to an inoperative enhanced call handling feature on services that include such a feature. You must be able to identify these exclusions separately. Calculate compliance percentage per area.
• Appointments: total appointments to which you are a party during the benchmark period. Determine whether each appointment was kept (i.e., the provider attended at the agreed time or within any incident window as per CSG Standard). Calculate global compliance percentage.

Step 4: Ensure each percentage is at least 90 per cent. If any is below 90 per cent, you have contravened that benchmark.

Step 5: Maintain records. The instrument does not prescribe retention periods, but under general regulatory requirements, records should be kept for at least seven years. You must be able to demonstrate the source data, classification methodology, exclusion decisions, and calculations to ACMA on request. Consider implementing systems that flag any category approaching the 90 per cent threshold early in the financial year, allowing corrective action (e.g., prioritising delayed connections or increasing field resources in an area).

Step 6: Monitor the new CSG standard. This instrument will be repealed 36 months after the new standard commences. You should participate in ACMA’s consultation on the new standard to understand the benchmarks that may replace these. During the transition period, you must continue to comply with this instrument until repeal. Plan for a potential change in compliance obligations.

Step 7: Consider individual customer compensation. Meeting the benchmarks does not excuse individual failures. Continue to pay automatic compensation under the CSG Standard to customers who suffer delays. Failure to pay compensation is a separate compliance risk.

Step 8: Review arrangements with customers. If you use arrangements for longer or shorter connection or rectification periods, ensure they are properly documented and agreed. The instrument allows these periods to be the standard for benchmark measurement, but each arrangement must be a valid “arrangement in the CSG Standard”. Review the CSG Standard provisions on customer agreements to avoid any challenge that the arrangement is not genuine.

Step 9: Prepare for enforcement. If you identify a likely or actual breach, consider self-reporting to ACMA and offering an enforceable undertaking. This may reduce the risk of litigation and penalty. The instrument does not require self-reporting, but early engagement with the regulator may mitigate the consequences. Document all efforts to meet the benchmark, including any external factors, even though the instrument provides no explicit defence.

Step 10: Seek legal advice on the first benchmark period ambiguity. The 2023-24 period includes months before the instrument commenced. Determine a defensible position on whether only post-commencement requests count. If you adopt the favourable interpretation (post-commencement only), ensure your calculations are clearly documented and consistent with that approach. If ACMA later takes a broader view, you may have a compliance gap. Given the lack of transitional wording, the safer approach may be to calculate compliance for the full financial year using all requests, but adjust the denominator to exclude any that were actually required to be complied with only after commencement. This is a legal interpretation that may require external advice.