Recent public comments and reporting about the ACMA’s approach to telecommunications industry compliance and enforcement contain a range of inaccuracies and ill-informed assertions about how and why the ACMA determines the actions we take when businesses fail to meet their legal obligations under our remit.
We consider it necessary to correct these assertions on the record so that the Australian public can have confidence in the work of the sectoral regulator and its strong commitment to protecting telecommunications consumers from harm.
The ACMA is transparent and accountable in executing its regulatory remit and stands by its integrity and independence. We have an established and publicly available Compliance and enforcement policy that sets out our approach in line with our legislated powers. This policy is supported by a number of Regulatory guides which inform the ACMA’s decisions and provide transparency to regulated industries and the public.
Fundamentally, the objective of the ACMA’s compliance and enforcement actions is to deter any companies from breaking the law, and just as crucially, for them to fix any non-compliant practices, particularly those that may have a harmful impact on their customers.
The ACMA has a range of enforcement options available to it and needs to make decisions, often finely calibrated, about which is the most effective tool to achieve those objectives.
In addition to seeking the imposition of financial and other penalties in Court, the ACMA also uses mechanisms such as remedial directions, formal warnings, infringement notices and court-enforceable undertakings that commit companies to the long-term remediation of compliance issues (and which often involve significant expense by the company). Similar powers are vested in and exercised by many Commonwealth regulators.
The ability to use an array of regulatory actions depending on the circumstances of the breach ensures the best outcome for the public in a timely manner, leading to better customer service and more robust consumer protections.
The ACMA discharges its compliance and enforcement remit consistently with the requirement and constraints of the relevant Acts and instruments for which we have responsibility and broader Commonwealth requirements to act as a model litigant.
When undertaking an investigation or deciding on an enforcement action, the ACMA will generally engage with the regulated entity. This interaction is robust in nature, is conducted with complete independence and is standard practice for regulators.
Specific to the telecommunications sector, for the period September 2023 to September 2024 the ACMA undertook 23 enforcement actions which resulted in the ACMA issuing 12 formal warnings, 2 remedial directions and 20 directions to comply with registered codes. We also agreed to accept 2 enforceable undertakings and accepted payment of close to $7 million in penalties in that period.
Examples of the results which those enforcement actions have achieved for the benefit of consumers include:
- telcos being required to publish financial hardship payment assistant policies so that customers can know what help is available
- telcos being compelled to join the Telecommunications Industry Ombudsman scheme so that customers have access to the external dispute resolution to which they are entitled
- telcos being required to uplift their practices to better protect Australians from call and SMS scams, and to assist other telcos to be able to do the same, and
- telcos having to review and update their internal processes so that customers can have greater confidence that they will be able to get through to Triple Zero when they need help from emergency services and will receive notifications such as emergency alerts from government agencies.
We also commenced court proceedings in the Optus 2022 data breach which affected nearly 10 million current and former Optus customers, and which is currently before the Federal Court. Most recently, Optus also paid a $12 million infringement notice issued by the ACMA in response to regulatory failures related to its 8 November 2023 network outage.
Apart from undertaking such enforcement actions, the ACMA is also active in identifying existing and emerging regulatory gaps and establishing new codes and standards to address them and improve outcomes for consumers.
During 2024 we made new rules to improve protections for consumers experiencing financial hardship, as well as rules that provide for improved communications between telcos and their customers in the event of major network outages.
We have also commenced work on the development of new rules to provide stronger protections for telco users experiencing domestic and family violence. Those rules will be made by June 2025.
Claims have also been made as to our practice of providing regulated entities with advance copies of media releases prior to publication. We consider this practice is consistent with the position set out in our Regulatory Guide No 6 and with the law, including the legal principle of procedural fairness.
Section 518 of the Telecommunications Act 1997 also specifically requires the ACMA to provide a person a reasonable opportunity to comment on a report that may adversely affect their interests before it is published. This includes findings of regulatory non-compliance and associated enforcement actions which are contained in our investigation reports and media releases about those reports.
The ACMA will only consider making changes to media releases which go to the accuracy of the facts contained in the release.
The ACMA is open to scrutiny, and we value and welcome our accountability to the Australian public. However, misinformed views promulgated publicly only have the effect of eroding public trust in vital consumer protection mechanisms. We will correct the record where it is needed and continue to act and to advocate for the best interests of consumers.