Telecommunications (Payphone Performance Benchmarks) Record-Keeping Rules 2022

Applicable payphone. A payphone is an “applicable payphone” if it is situated at a payphone site specified in the payphone register and provided in accordance with paragraph 9(1)(b) and subsection 9(2A) of the TCPSS Act. This limits the Rules’ reach to payphones that form part of the universal service obligation; private or non-registered payphones are excluded.

Maximum rectification period. This term refers directly to the benchmark standard timeframe in subsection 13(1) of the Payphones Determination. That Determination sets separate rectification timeframes depending on whether the payphone is in an urban, rural or remote area. The Rules do not specify those timeframes; they simply adopt whatever the Payphones Determination says from time to time. The “rectification period” as used in the Rules excludes any period during which the PUSP was not required to comply with a payphone benchmark standard because of an exemption under paragraphs 12(1)(a) or (b) of the Payphones Determination. This is a critical distinction: the PUSP must record both the actual time taken to fix the fault and the time that would count against the benchmark only if the exemption did not apply.

Fault or service difficulty, payphone site, payphone register, urban/rural/remote areas. These terms are all given the meaning they have in the Payphones Determination. Urban, rural and remote area classifications matter because they affect the maximum rectification period and must be recorded for each fault report (section 8(2)(i)).

Exemption grounds. Paragraphs 12(1)(a) and (b) of the Payphones Determination allow the PUSP to claim an exemption from compliance with benchmark standards if a law of the Commonwealth, a State or a Territory prevents compliance, or if circumstances beyond the PUSP’s control prevent compliance. The Rules require the PUSP to keep records of the procedures it has in place to ensure it does not rely on an exemption in circumstances that are not truly beyond its control (section 9). The Payphones Determination itself provides that an exemption is not available unless such procedures exist (see note to section 9). This creates a double lock: the PUSP must both have the procedures and keep records of them.

Compliance report and audit report. A compliance report must include the information in Schedule 1 (not reproduced in the text provided) and be in the form of Schedule 2. An “audit report” is defined by cross reference to subsection 16(4), but that subsection is not set out in the Rules. The definition suggests there may be additional verification requirements, but the body of the Rules only mandates compliance reports.

Nominated area. The Rules define “nominated area” as Australia, confirming the national scope.

The Rules directly affect only one entity: the primary universal service provider as defined by section 12A of the TCPSS Act. As of the date of the Rules, that entity is Telstra, which has been designated by the Minister as the PUSP for payphones. No other carrier or service provider is subject to these record-keeping or reporting obligations. This narrow scope means the compliance burden is concentrated on a single firm, albeit one that operates a large payphone network across Australia. The Rules do not impose any obligations on payphone users, local councils, or third parties who might report faults; the PUSP must record the name of the reporting person only if known (section 8(2)(b)(ii)). The Australian Communications and Media Authority (ACMA) is the recipient of the compliance reports and the body that can agree to extend the reporting deadline. The ACMA is likely to use the records to verify compliance with the Payphones Determination, so its enforcement resources are indirectly affected. For payphone users - especially those in rural and remote areas where alternative communication options are limited - the Rules may improve accountability and response times if the records discipline the PUSP’s behaviour. However, the Rules themselves do not directly improve service; they merely increase the cost of failing to meet the benchmark standards by making non-compliance more detectable. The compliance costs will be borne by the PUSP and may be recovered through the universal service regime, which ultimately falls on telecommunications industry levies and, in turn, on consumers. There is no competition effect because the obligation is exclusive to the designated PUSP; no other provider can enter the payphone market under the current regulatory framework. The Rules therefore do not affect market entry, pricing, or consumer choice. For journalists and researchers, the compliance reports may become a source of data on payphone reliability across area classifications, but the information is not publicly searchable in the instrument itself.

Duty to keep records of faults and service difficulties (section 8). The PUSP must create and maintain a record for each report of a fault or service difficulty it receives or produces in respect of an applicable payphone or a carriage service supplied by means of an applicable payphone. The record must contain nine categories of information: (a) if the PUSP produced the report - the date and time of production; (b) if received - date, time and (if known) the name of the reporter; (c) location of the payphone; (d) date and time when the maximum rectification period expires; (e) date and time of actual rectification; (f) the rectification period in business days; (g) if a Commonwealth, State or Territory law prevents compliance - details of the law, reason, date prevented, anticipated rectification date, and date the law ceased to prevent compliance; (h) if circumstances beyond control prevent compliance - description, reason, date arose, anticipated rectification date, and date circumstances ceased; (i) whether the payphone is in an urban, rural or remote area. The notes to section 8 clarify that the maximum rectification period expiry may not be known immediately, especially when an exemption is claimed, and the provider should record that information when it becomes known.

Duty to keep records of exemption procedures (section 9). If the PUSP claims an exemption under paragraph 12(1)(a) or (b) of the Payphones Determination, it must keep records of the procedures it has in place to ensure it does not rely on an exemption in circumstances that are not beyond its control. This is a duty separate from the fault records; it is a standing requirement to document the internal control framework.

Duty to retain records (section 10). All records required by Part 2 must be retained for at least two years after the end of the financial year in which they were created. The note gives the example: a record kept in the 2022-23 financial year must be retained until at least 30 June 2025. This is a minimum; the PUSP may choose to retain records longer, but can destroy them after two years without breaching the Rules.

Duty to prepare compliance reports (section 11). The PUSP must prepare a compliance report each financial year containing the information in Schedule 1 and using the form in Schedule 2. These schedules are not reproduced in the text provided, but their mandatory nature means the PUSP must adhere strictly to the prescribed content and layout.

Duty to give compliance reports to the ACMA (section 12). The PUSP must give the compliance report to the ACMA no later than 40 business days after the end of the financial year, or such later time as the ACMA agrees in writing. Delivery must be by electronic transmission to the published ACMA email address. There is no right to withhold or challenge the reporting requirement, and no right to receive any feedback from the ACMA.

No rights for the PUSP. The Rules confer no rights on the PUSP - only duties. There are no appeal or review mechanisms within the Rules. Any rights would arise under the enabling Act or general administrative law. The ACMA has the discretion to grant an extension of time for submitting the compliance report, but the Rules do not specify criteria for that decision.

The Rules do not themselves prescribe penalties. Enforcement mechanisms are found in the parent legislation: the Telecommunications Act 1997 and the TCPSS Act. Section 529 of the Telecommunications Act, under which the Rules are made, creates a civil penalty provision for non-compliance with the Rules. Specifically, subsection 529(6) of the Telecommunications Act provides that a person must comply with the Rules, and a contravention is a civil penalty provision. The maximum penalty for a body corporate under the civil penalty regime can be significant - up to 10,000 penalty units (currently over $2.2 million) per contravention, with ongoing penalties for continuing failures. The ACMA can also issue infringement notices (on-the-spot fines) for alleged contraventions under Part 31 of the Telecommunications Act. Failure to keep a record required by section 8, failure to retain a record for the mandatory two years, failure to prepare a compliant compliance report, or late or non-delivery of the compliance report could each constitute a separate contravention. The Rules require the PUSP to record specific information about each fault report; a failure to record any prescribed matter for a particular report could be treated as a contravention. Given the volume of payphone faults, the potential exposure is large. The ACMA also has broad information-gathering powers under the Telecommunications Act, including the power to require documents and information. The audit report referenced in the definition of “audit report” (section 4) suggests that the compliance report may need to be verified by an auditor, but the Rules do not mandate an audit; that requirement may arise from a separate determination or from the ACMA’s enforcement practice. The lack of a penalty scale in the Rules means that any enforcement action will be assessed under the general civil penalty framework, which gives the ACMA and the courts considerable discretion. For a large carrier, the prospect of a multi-million dollar penalty for systemic record-keeping failures is real. The Rules also contain no grace period or de minimis exception; every record must be kept accurately. The duty to record anticipated rectification dates when an exemption applies (section 8(2)(g)(iv) and (h)(iv)) creates a particular risk if the PUSP’s estimate proves incorrect or is not recorded at all.

The Rules are part of a regulatory framework that includes the Telecommunications Act 1997, the TCPSS Act, and the Payphones Determination. They are made under section 529 of the Telecommunications Act, which confers a general regulation-making power. The Rules must be read together with the Payphones Determination because many key terms (fault or service difficulty, payphone benchmark standards, payphone site, payphone register, urban/rural/remote area) are defined by reference to that Determination. The maximum rectification period in the Rules is the benchmark standard timeframe in subsection 13(1) of the Payphones Determination. If the Payphones Determination is amended, the Rules automatically adopt the new timeframes because of the definition in section 6 and the general cross-reference rule in section 7 (references to instruments are references to those instruments as in force from time to time). The Rules also interact with State, Territory and Commonwealth laws that might prevent the PUSP from complying with a payphone benchmark standard. Section 8(2)(g) requires the PUSP to record the name of that law, the reason for the prevention, and the dates during which the prevention operated. This creates an implicit duty to identify and document legal impediments. The Rules do not override any such law; they merely require record-keeping about it. The definition of “rectification period” expressly excludes periods during which the PUSP was exempt under paragraph 12(1)(a) or (b) of the Payphones Determination. That exemption, in turn, is only available if the PUSP has procedures in place to avoid using it in non-beyond-control circumstances (see Payphones Determination section 12(3)). The Rules reinforce this by requiring records of those procedures under section 9. If the PUSP fails to keep those records, it may lose its ability to claim the exemption, thereby making it potentially liable for failing to meet the benchmark standard. The Rules also interact with the ACMA’s general powers of monitoring and investigation under the Telecommunications Act. The compliance reports required by section 11 become a tool for the ACMA to verify compliance with the Payphones Determination. The two-year retention period in section 10 aligns with typical limitation periods for civil penalty proceedings. The Rules do not affect any other laws such as privacy laws (the recording of names is optional and only “if known”), competition laws, or consumer protection laws. They are a standalone administrative instrument focused solely on record-keeping and reporting.

The Telecommunications (Payphones) Record-Keeping Rules 2022 were made by the ACMA and registered on the Federal Register of Legislation. The instrument number and date of registration are not provided in the extracted text, but the note to section 7 indicates the instrument references the Federal Register of Legislation. Based on the title, the Rules commenced on the later of registration or when the Payphones Determination commenced. As of the writing of this deep dive, the instrument appears not to have been amended. The absence of amendment history suggests the Rules have operated without material change since their commencement. The stability may reflect their narrow and procedural nature: record-keeping requirements do not typically require frequent updating unless the substantive payphone standards change. If the Payphones Determination is amended (for example, to adjust rectification timeframes or redefine area classifications), the Rules would automatically incorporate those changes through the definitions in sections 4, 5, and 6, without needing a separate amendment to the Rules themselves. Any future amendment to the Rules would likely address changes in administrative processes (for example, the ACMA email address for submitting compliance reports, which is published on the ACMA website rather than prescribed in the Rules). The Rules also contain a general update provision in section 7 that references other instruments as in force from time to time, so cross-references do not need to be updated via amendment. A practitioner should check the Federal Register of Legislation for any amending instruments before relying on the Rules.

There is no publicly recorded litigation involving the Telecommunications (Payphones) Record-Keeping Rules 2022. The instrument is mechanical and relatively recent; its obligations are directed at a single regulated entity. Any challenge would most likely arise if the ACMA seeks civil penalties for non-compliance, and the PUSP defends on the basis that the record-keeping requirements were not properly made or that the alleged contravention did not occur. No such case has been reported. The Rules could also be challenged in an administrative law context - for example, a judicial review application arguing that the ACMA’s decision to refuse an extension of time to submit a compliance report (section 12(1)) was unreasonable or procedurally unfair. However, the scope for such a challenge is narrow because the ACMA’s power to agree a later time is discretionary and not subject to specific criteria in the Rules. Given the high cost of litigation relative to the likely exposure for a single record, any dispute would more likely be resolved through correspondence or an infringement notice rather than court proceedings. The Payphones Determination itself has not been the subject of reported litigation either. Accordingly, the Rules remain judicially untested. This lack of precedent means uncertainty remains about how a court would interpret phrases such as “circumstances beyond the control of the primary universal service provider” (section 8(2)(h)), particularly in the context of a telecom network where many fault causes are within the operator’s control. Similarly, the requirement to record the “reason why those circumstances prevent the provider from complying” could become a focus of evidentiary dispute. For now, the Rules operate in a compliance environment rather than a litigious one.

One gotcha: The definition of “rectification period” excludes exemption periods, but the record must still capture the actual time. The PUSP must record the rectification period in business days (section 8(2)(f)), but that period is the total time taken to fix the fault minus any period during which an exemption applied. If the PUSP records only the exempted period, it may inadvertently under-report the rectification time. The record must separately capture the dates and times the exemption started and ended (section 8(2)(g) and (h)). Getting this wrong could lead to a misleading compliance report.

Two: The duty to record anticipated rectification dates when an exemption is claimed. Sections 8(2)(g)(iv) and (h)(iv) require the PUSP to record the date by which it anticipates the fault will be rectified, if known. This is a prospective estimate that may later prove incorrect. If the estimate is not promptly updated or is omitted, the ACMA could treat the record as incomplete. The PUSP should have a system to generate and update these estimates.

Three: The record-keeping duty applies to each report “received or produced” - including internal automatic generation. The note to section 8(2)(a) acknowledges that a report may be automatically generated (e.g., by a monitoring system). The PUSP must still record the date and time of production. If the system is not configured to log that data, the PUSP is non-compliant.

Four: The name of the reporter is only required “if known”, but the PUSP must still record it if possible. There is no defence of “we did not ask” or “we could not find out”. If the reporter is a PUSP employee or contractor who can be identified, the name should be recorded.

Five: The “maximum rectification period” expiry may not be known immediately when an exemption is claimed. The note to section 8(2)(d) says the provider should record the date and time when it becomes known. But the PUSP must still record all other matters at the time of the report. Delaying the recording of the expiry date until after the exemption resolves could lead to a gap in the record. A better practice is to record a placeholder and then update.

Six: The compliance report deadline is 40 business days after the financial year end - that is about eight weeks, not calendar months. Business days exclude weekends and public holidays. The PUSP must calculate carefully, as the ACMA’s agreement to a later time must be in writing and obtained before the deadline.

Seven: The form of the compliance report must follow Schedule 2 exactly. The schedules are not included in the extracted Rules; the PUSP must obtain the correct form from the ACMA or the Federal Register. Using a different format, even if it contains all required information, may constitute non-compliance.

Eight: The exemption procedures record under section 9 is a separate ongoing duty, not a one-off. The PUSP must maintain current procedures records. If the procedures change, the records must be updated. Failure to keep these records could invalidate an exemption claim under note to section 9 and under section 12(3) of the Payphones Determination.

Nine: The two-year retention period runs from the end of the financial year in which the record is kept, not from the date of the record. A record created on 1 July 2023 must be retained until at least 30 June 2025. Early destruction - even if the record is more than two years old from creation - could breach section 10 if the financial year has not yet ended.

Ten: The rules apply to “applicable payphones” only, but the definition depends on the payphone register and the TCPSS Act. If a payphone is temporarily removed from the register, the PUSP may still need to keep records if it received a fault report before removal. The timing of when a payphone is “applicable” must be monitored.

To comply with the Rules, the PUSP should implement a structured compliance framework covering record creation, retention, reporting, and exemption management. The following steps are grounded in the obligations set out in the instrument:

Step 1: Fault management system. Deploy a system that automatically captures a unique record for each report of a fault or service difficulty concerning an applicable payphone. The system must record the fields in section 8(2): for each report, the date and time of receipt or production; the reporter’s name if known; the payphone location; the date and time the maximum rectification period expires (from the Payphones Determination, by area classification); the actual rectification date and time; the rectification period in business days (net of exemption periods); and all details if a law or circumstances beyond control prevent compliance. The system should flag when an exemption claim is made, and require the operator to enter the specific law or circumstances, the reason, the date of prevention, and the anticipated rectification date. If the prevention ceases, the date and time must be recorded immediately.

Step 2: Area classification. Each payphone site must be classified as urban, rural or remote according to the definitions in the Payphones Determination. The classification must be stored and automatically applied to each fault record. The system should also flag changes in classification if the Determination is updated.

Step 3: Exemption procedures documentation. Under section 9, the PUSP must maintain written procedures that ensure exemptions under paragraphs 12(1)(a) and (b) of the Payphones Determination are not relied upon in circumstances within the PUSP’s control. These procedures should include escalation processes, managerial approval thresholds, and a review mechanism. The records of these procedures must be kept and updated whenever the procedures change.

Step 4: Record retention. All records created under Part 2 must be retained for at least two years after the end of the financial year in which they are created. A practical approach is to retain all fault and exemption records for a rolling period of three financial years to provide a cushion. Implement a secure archive with audit trails. Ensure the retention policy covers both electronic and any paper records.

Step 5: Compliance report preparation. At the end of each financial year, extract from the fault records the information required by Schedule 1 of the Rules. The PUSP must obtain the current Schedule 2 form from the ACMA website (the Rules do not reproduce it). Populate the form accurately, ensuring that all figures reconcile with the underlying records. The report should be reviewed by a compliance officer before submission.

Step 6: Submission to the ACMA. Calculate 40 business days after 30 June (or the relevant year end) to determine the deadline. Submit the compliance report by electronic transmission to the email address published on the ACMA website under section 12(2). If an extension is needed, request it in writing from the ACMA before the deadline, providing reasons. The ACMA’s agreement must be obtained in writing.

Step 7: Periodic audits. Although the Rules do not mandate an audit report for the compliance report, the definition suggests the ACMA may request one. The PUSP should conduct internal audits of its record-keeping systems and exemption procedures at least annually to identify gaps before the ACMA does.

Step 8: Staff training. Ensure all technicians, fault-desk operators, and compliance personnel are trained on the specific fields that must be recorded. Emphasise the importance of recording dates and times accurately, and the consequences of failing to record exemption details. Misunderstandings about “circumstances beyond control” are a common source of error.

Step 9: Monitor instrument updates. The Rules automatically incorporate changes to the Payphones Determination via cross-references. The PUSP must monitor the Federal Register for amendments to that Determination and update its classification database and rectification period calculations accordingly. The Rules themselves may be amended; a responsible officer should subscribe to notification services.

Step 10: Engage with the ACMA. The Rules allow the ACMA to agree a later reporting time. If the PUSP anticipates difficulty meeting the deadline (e.g., due to a system migration), proactive communication with the ACMA is advisable. The ACMA also has the power to require information or an audit; cooperating can reduce the risk of escalation to civil penalties.