Telecommunications Industry Ombudsman Constitution
Introduction
1. The TIO Scheme
| 1.1 |
The Telecommunications (Consumer Protection and
Service Standards) Act 1999 (“the Act”) contains
the following requirements, (these requirements were previously
stated in The Telecommunications Act 1997): |
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(a) |
Each carrier and each eligible carriage service
provider must, in association with other carriers and other
eligible carriage service providers, enter into a scheme providing
for a Telecommunications Industry Ombudsman. |
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(b) |
The scheme is to be known as the Telecommunications
Industry Ombudsman scheme. |
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(c) |
The scheme must provide for the Telecommunications
Industry Ombudsman to: |
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(i) |
investigate; and |
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(ii) |
make determinations relating to; and |
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(iii) |
give directions relating to; |
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complaints about carriage services by end-users
of those services. |
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| 1.2 |
(a) |
The Act also provides for the TIO (with his or
her consent) to issue an evidentiary certificate stating that
a carriage service provider has contravened a “Customer
Service Guarantee” performance standard and setting out
particulars of the contravention |
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(b) |
In addition, The Telecommunications Act 1997 provides
that the TIO (with his or her consent) may have functions and
powers conferred on him or her by industry codes and industry
standards. |
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| 1.3 |
The Telecommunications Industry Ombudsman ("TIO")
scheme has been established by means of a company limited by
guarantee, the Telecommunications Industry Ombudsman
Limited. The Memorandum and Articles of Association
of the company establish: |
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a Board of Directors, composed primarily of directors
appointed by the members and vested with traditional corporate
governance responsibilities; |
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a Council, composed of an equal representation
of member representatives and of consumer interests, chaired
by an independent Chairman, and with responsibility for: |
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complaint-handling and policy issues; |
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maintaining the independence of the TIO; and |
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acting as an intermediary between the TIO and the Board; and |
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a Telecommunications Industry Ombudsman vested
with authority under this TIO Constitution to |
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receive, investigate and facilitate the resolution of complaints;
and |
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exercise such other powers and functions as may be conferred
by statute. |
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An Acting Telecommunications Industry Ombudsman
(“Acting TIO”) and a Deputy Telecommunications Industry
Ombudsman (“Deputy TIO”) are also provided for. |
2. Members
| 2.1 |
All carriers and eligible carriage service providers,
are required to be members of the TIO scheme. |
| 2.2 |
Membership of the TIO scheme is open to all carriers and carriage
service providers (subject to the Articles of Association of
the Telecommunications Industry Ombudsman Limited). |
| 2.3 |
A carrier or carriage service provider becomes a member of
the TIO Scheme by becoming a member of the Telecommunications
Industry Ombudsman Limited. |
| 2.4 |
The TIO shall (as required by the Act) maintain a Register
of the names of the members of the TIO scheme and ensure that
the Register is open for inspection, at all reasonable times,
by members of the public. In allowing a person to inspect the
Register, the TIO shall first provide to the person a statement
of the limitations imposed by the Corporations Law on the use
to which the information contained in the Register may be put. |
2A. Principles
| 2A.1 |
The TIO Scheme is committed to the Principles
of Accessibility, Independence, Fairness, Accountability, Efficiency
and Effectiveness as set out in the Benchmarks for Industry
Based Customer Dispute Resolution Schemes (Department of Industry
Science and Tourism, August 1997). |
| 2A.2 |
In exercising the TIO’s functions and jurisdiction and
in developing procedures for the resolution of complaints, the
TIO shall have regard to the benchmarks as well as to the law,
good industry practice and what is fair and reasonable in all
the circumstances. |
Telecommunications Industry Ombudsman
3. Functions of the
TIO
| 3.1 |
The functions of the TIO are: |
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(1) |
to investigate, make determinations relating to,
and give directions relating to, complaints about |
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(a) |
carriage services; and |
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(b) |
billing by members for the supply of content services provided
by means of a carriage service |
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by end-users of those services. |
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(2) |
to exercise any functions conferred on the TIO
by an industry code or industry standard in relation to any
member of the Telecommunications Industry Ombudsman Limited
including in the case of an industry code where the member has
undertaken to comply with it or, if the code has been registered
by the Australian Communications Authority, has been directed
by the Australian Communications Authority to comply with the
Code; and |
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(3) |
to investigate, make Determinations relating to,
and give Directions relating to complaints about failure to
comply with any approved self-regulatory scheme for the purposes
of the Telecommunications Service Provider (Mobile Premium Services)
Determination 2005 (No.1) (as amended from time to time) or
with the default scheme under that Determination where the self-regulatory
scheme or default scheme nominates the TIO under the complaint
handling procedures set out in that scheme; |
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(4) |
to exercise any other functions conferred on the
TIO under any legislation, including for example the power to
issue a written certificate stating that a specified carriage
service provider has contravened a “Customer Service Guarantee”
standard set by the Australian Communications and Media Authority
and setting out particulars of the contravention, or the power
to approve guidelines for the interception of telecommunications
by a carrier; |
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(5) |
to investigate, make determinations relating to,
and give directions relating to, complaints by owners or occupiers
of land: |
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(i) |
in respect of which a carrier has exercised its statutory
powers, other than complaints in relation to the policy or commercial
decision of a carrier to exercise its statutory rights in relation
to that particular land; or |
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(ii) |
arising from the use of the land by a carrier, under a contract
between that carrier and the owner or occupier of that land. |
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By way of example, the TIO’s functions include
to receive, to investigate and to facilitate the resolution
of: |
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(a) |
complaints about billing, or the manner of charging,
for the supply of carriage services; |
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(b) |
complaints as to the provision or supply of (or
the failure to provide or supply) carriage services by a member,
other than complaints in relation to the general telecommunications
policy or commercial practices of a member; |
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(c) |
such other complaints as may, by agreement with
the complainant, be referred to the TIO by a member. |
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| 3.2 |
(a) |
Complaints may be made to the TIO by end-users
of carriage services and by persons directly affected by the
provision or supply of (or the failure to provide or supply)
such services by scheme members. |
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(b) |
Complaints may not be made by an intermediate
user of a carriage service except where the complaint relates
to a carriage service provided or supplied for the complainant’s
own use. |
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(c) |
Complaints may be made to the TIO on behalf of
a complainant by an authorised representative of the complainant. |
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(d) |
The focus of the TIO scheme is on individual complaints
which may be oral or in writing. |
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(e) |
A complaint must have arisen from events which
became known to the complainant less than one (1) year prior
to the complaint. However, the TIO has a discretion in relation
to a complaint which has arisen from events which became known
to the complainant between one (1) and two (2) years prior to
the complaint. |
4. Jurisdiction of
the TIO
| 4.1 |
For further guidance, the functions of the TIO
include, but are not limited to, investigating and facilitating
the resolution of complaints as to the following: |
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the standard telephone service; |
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the provision of access to the Internet or another
public electronic communications network (including complaints
relating to billing for such a service); |
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public mobile telecommunications services; |
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operator services; |
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directory assistance; |
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fault reporting and repair and maintenance services; |
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printed and electronic white pages; |
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billing not in accordance with a tariff or terms
and conditions which are, under Part 23 of The Telecommunications
Act 1997, applicable; |
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failure to supply a good or service in accordance
with a tariff or terms and conditions which are, under Part
23 of The Telecommunications Act 1997, applicable; |
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interference with the privacy of an individual
in terms of non-compliance with the Information Privacy Principles
contained in s.14 of the Privacy Act 1988 or any industry specific
privacy standards which may apply from time to time; |
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an end-user, or an intended end-user, of a carriage
service being unable to access that carriage service as a result
of a failure to supply or a defect in any mobile phone handset,
or other equipment designed to facilitate access to a carriage
service, where that handset or other equipment is, or is to
be, supplied by a member who supplies or has agreed to supply
the carriage service, a related entity of such a member, or
an entity which has a contractual relationship with such a member
or with a related entity of such a member under which that other
entity solicits, or received applications for, persons to become
end-users of the carriage service; and |
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the recovery of debts owed or allegedly owed by customers
whether by members, their agents or factors. |
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| 4.2 |
Also for guidance, the functions of the TIO in
relation to complaints from owners or occupiers of land include,
but are not limited to, investigating and facilitating the resolution
of complaints as to the following: |
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failure by a carrier to give notice of its intention
to exercise its statutory rights; |
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failure to take all reasonable steps to cause
as little detriment, inconvenience and damage as reasonably
practicable, in accordance with any applicable statutory or
contractual requirement; and |
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inadequate compensation where compensation is
required by any applicable statute or contract to be paid. |
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| 4.3 |
The functions of the TIO do not extend to complaints
relating to: |
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(a) |
the provision or supply of customer premises equipment, other
than the non-switching handset that terminates the standard
telephone service and auxiliary goods supplied under a tariff
or in accordance with terms and conditions applicable under
Part 23 of The Telecommunications Act 1997; |
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(b) |
cabling beyond the network termination point, other than cabling
from the network termination point to the first telephone and,
in the case of residential carriage services, cabling to other
extensions of that service within the residential premises; |
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(c) |
business directories, including but not limited to "Yellow
Pages"; |
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(d) |
commercial activities which do not include the provision of
carriage services; |
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(e) |
the setting of tariffs; |
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(f) |
the 000 emergency service; |
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(g) |
Universal Service Obligation policy matters; |
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(h) |
matters of telecommunications policy; |
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(i) |
matters which may involve anti-competitive behaviour or restrictive
practices potentially in breach of the Trade Practices
Act 1974; |
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(j) |
matters which are specifically under consideration by the
Australian Communications and Media Authority, the Australian
Competition and Consumer Commission or any court or tribunal,
or which have been considered by any of those bodies previously; |
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(k) |
the content of a content service (as defined in The Telecommunications
Act 1997); and |
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(l) |
an alleged breach of an industry code or industry standard
by a member of the Telecommunications Industry Ombudsman Limited,
where the complaint is made by a member of the Telecommunications
Industry Ombudsman Limited or another industry participant;
and |
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(m) |
the billing of a carriage service or of a content service
supplied by a carriage service or relating to a credit management
action including debt recovery action, by a member, unless the
person complaining has paid all undisputed charges or such amount
of charges as, in the opinion of the Ombudsman, are reasonable. |
5. Procedures of
the TIO
| 5.1 |
The TIO, in handling complaints, must pursue the
objective of "fair, just, economical, informal and expeditious"
resolution. In consultation with the Council, the TIO is responsible
for developing procedures which best achieve this objective.
However, these procedures must include the following: |
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(a) |
The TIO on receiving a complaint, will verify
with the complainant whether the complainant has given the member
concerned an opportunity to consider the complaint; |
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(b) |
The TIO may investigate the complaint in detail only after
the TIO has verified with the complainant that the complainant
has given the member concerned an opportunity to consider the
complaint, and after the member has been notified that the TIO
intends to investigate the complaint in detail; |
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(c) |
Within the time reasonably specified by the TIO (which shall
be no more than twenty-eight (28) days after receiving notification
that the TIO intends investigating a complainant in detail),
the member concerned shall (except to the extent the TIO may
defer or waive this requirement upon the member informing the
TIO that it has not in fact had an opportunity to consider the
complaint because the complainant had not raised the complaint
with the member) provide to the TIO all documentation relevant
to the complaint other than documentation containing confidential
information of a third party, who despite the reasonable efforts
of the member, has refused to consent to disclosure of the information
to the TIO; |
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(d) |
With respect to all information concerning or relating to
a complaint, the TIO must act in accordance with the Information
Privacy Principles specified in the Privacy Act 1988 (Cth);
and |
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(e) |
In complying with any subpoena, the TIO must notify the person
who has provided the information which is the subject of the
subpoena so that the person concerned is afforded the opportunity
to appear in court to oppose production of the documents or
the giving of evidence, as appropriate. |
5A. Systemic Problem
Investigations
| 5A.1 |
‘Systemic Problem’ means a problem
with or the failure of a system, process or practice of a member
that causes detriment (that is not trivial) to a significant
number or a class of end-users of a carriage service and which
arises from a complaint that is within the jurisdiction of the
TIO by virtue of another provision of the TIO Constitution. |
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| 5A.2 |
In deciding whether to investigate a potential
Systemic Problem the TIO shall have regard to whether such an
investigation would be ‘practical, fair, efficient and
effective’. In consultation with the Council, the TIO
is responsible for developing procedures which achieve those
objectives. Such procedures must include the following: |
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(a) |
The TIO may not commence an investigation of a
potential Systemic Problem more than twelve (12) months after
receipt of the complaint out of which the potential Systemic
Problem arises. |
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(b) |
Where the TIO is of the opinion that a complaint
may raise a Systemic Problem, the TIO shall: |
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(i) |
notify the relevant member of the complaint and
of the TIO’s opinion; |
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(ii) |
describe the nature of the potential Systemic Problem; and |
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(iii) |
invite the member to make submissions as to whether the complaint
raises a Systemic Problem. |
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(c) |
A member may only make a submission in accordance
with sub-clause (b) (iii), within twenty-eight (28) days of
the date of receipt of the notice by the member. |
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(d) |
The TIO may decide, having regard to any submission
from the member in accordance with sub-clause (c), or, in the
absence of any such submission, to: |
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(i) |
investigate the complaint as raising a potential Systemic
Problem; or |
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(ii) |
continue to investigate the complaint in accordance with clause
5.1 (as a complaint not raising a Systemic Problem); or |
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(iii) |
take no further action in relation to the complaint. |
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(e) |
Where the TIO decides to investigate a complaint
as a potential Systemic Problem, the TIO shall notify the member
of that decision and of the reasons for that decision. The TIO
may then investigate the complaint as a potential Systemic Problem. |
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(f) |
After receiving a notification under sub-clause
(e), the member shall provide to the TIO any additional documentation
relevant to the investigation and resolution of the potential
Systemic Problem, other than documentation containing confidential
information of a third party who, despite the reasonable efforts
of the member, has refused consent to disclosure of information
to the TIO. Documents must be provided within the timeframe
reasonably specified by the TIO. |
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| 5A.3 |
If the TIO is investigating a complaint as a potential
Systemic Problem, or attempting to resolve a complaint which
the TIO has concluded raises a Systemic Problem, the TIO may
defer the investigation of any other complaint (a “deferred
complaint”) which relates to the same actual
or potential Systemic Problem where the TIO: |
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(i) |
has notified the member of the complaint, and |
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notifies the complainant and the member of the
deferral. |
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| 5A.4 |
(a) |
Where after completion of an investigation of
a potential System Problem, the TIO concludes that a Systemic
Problem exists, the TIO shall notify the relevant member of: |
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(i) |
that conclusion and of the reasons for that conclusion; and |
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(ii) |
a recommended resolution of the Systemic Problem. |
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(b) |
Where after the completion of an investigation
of a potential Systemic Problem the TIO concludes that a Systemic
Problem does not exist, the TIO shall inform the relevant member
of that conclusion and of the reasons for that conclusion. |
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(c) |
Where a member receives a notification under sub-clause
(a), the member shall consult with the TIO about the TIO’s
conclusion and recommended resolution. |
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(d) |
Where the TIO and the member agree on a resolution,
the member shall implement that resolution in the manner, and
within the period, agreed. |
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(e) |
Any recommended resolution under sub-clause (a)
or resolution under sub-clause (d) may be applicable to: |
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(i) |
the complaint which has been investigated; |
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(ii) |
a complaint deferred under clause 5A.3; and/or |
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(iii) |
other customers; |
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and may involve the same or different actions
or outcomes for different complainants or customers. |
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(f) |
Where: |
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(i) |
a resolution is not agreed; or |
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(ii) |
a member fails to implement a resolution agreed under sub-clause
(d); |
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(iii) |
the TIO concludes that a Systemic Problem does not exist; |
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the TIO shall resolve the complaint giving rise
to the potential Systemic Problem and any complaints deferred
clause 5A.3, in accordance with clauses 5.1 and 6.1. |
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| 5A.5 |
Where a resolution is not agreed or a member fails
to implement a resolution agreed under subclause 4(d), the TIO
may refer the matter to the Australian Communications and Media
Authority, the Australian Competition and Consumer Commission
or such other statutory authority or industry body as the TIO
considers appropriate. Where the TIO refers a matter under this
sub-clause the TIO must notify the member. |
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| 5A.6 |
Clause 5.1 applies in relation to a complaint
even if the complaint involves an actual or potential Systemic
Problem. |
6. Powers of the
TIO
6.1 Binding Decisions
| After completion of an investigation and in the
absence of a conciliated settlement of a complaint, the TIO
shall resolve a complaint: |
| (a) |
(i) |
by making a determination that the member the
subject of investigation pay compensation to a complainant, |
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(ii) |
by directing a member to provide a carriage service, |
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(iii) |
by directing a member not impose or amend a charge in relation
to a service, |
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(iv) |
by directing a member to provide specified operator services, |
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(v) |
by directing a member to include or omit an entry in any electronic
or printed directory, |
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(vi) |
by directing a member to supply goods or services the subject
of the complaint or undertake any necessary corrective or other
work to resolve the complaint, |
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(vii) |
by directing a member to make an appropriate correction, deletion
or addition to a record, |
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(viii) |
by directing a member to attach to a record a statement provided
by the complainant of a correction, deletion or addition sought
by the complainant, and/or |
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(ix) |
by directing a member to do, not to do, or to cease doing,
an act, |
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provided that the total of such determinations
or directions in relation to an individual complaint are not
to exceed in value $10,000; or |
| (b) |
by dismissing the complaint. |
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| All decisions by the TIO under paragraph 6.1 shall
be automatically binding upon members. However, the complainant
may elect whether or not to accept the decision of the TIO within
twenty one (21) days of the TIO's decision. If the complainant
accepts the decision of the TIO, the complainant shall fully
release the member from all claims, actions etc in relation
to the complaint. In the event that the complainant does not
accept the decision of the TIO, the complainant may pursue his
or her remedies in any other forum the complainant may choose
and the member is then fully released from the TIO's decision. |
6.2 Recommendations
After completion of an investigation and the unsuccessful conciliation
of a complaint, the TIO may also make recommendations to a member
in relation to any or all of those matters identified in paragraph
6.1 up to the total value of $50,000 and a member shall be obliged
to consider whether or not to give effect to any such recommendation
provided that a decision not to give effect to any such recommendation
shall not be the subject of further complaint to the TIO from a
complainant.
6.3 Reasons
The TIO shall provide only such written reasons as give effect
to any decision or recommendation under paragraph 6.1 or recommendation
under paragraph 6.2.
6.4 Findings of Fact
Where a complaint involves a total amount in excess of $50,000,
the TIO may make findings of fact but shall make no determinations,
directions or recommendations about compensation or other remedial
actions.
6.5 Arbitration
Where a complaint involves a total amount in excess of $50,000,
if the complainant and the member agree, the TIO may, if he or she
so agrees, exercise arbitration powers in respect of the complaint.
6.6 Evidentiary Certificates - Customer
Service Guarantee
At any time during or following the investigation of a complaint,
and notwithstanding anything else contained in this Constitution,
the TIO may in his or her discretion (and if empowered to do so
under the Act) issue a written certificate stating that a specified
carriage service provider (as the term ‘carriage service provider’
is defined in The Telecommunications Act 1997) has contravened a
“Customer Service Guarantee” standard set by the Australian
Communications Authority and setting out particulars of the contravention.
6.7 Discretion not to Investigate
| The TIO has the discretionary power to decline
to investigate a complaint or to decline to investigate a complaint
further if in the opinion of the TIO: |
| (a) |
the complaint is frivolous or vexatious or was
not made in good faith; |
| (b) |
the complainant does not have a sufficient interest in the
subject matter of the complaint; or |
| (c) |
an investigation, or further investigation, is not warranted. |
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| The TIO may also decline to investigate a complaint,
or decline to investigate a complaint further, where, under
paragraph 6.8(b) for example, the complaint is more conveniently
or effectively dealt with by the Australian Communications Authority,
the Australian Competition and Consumer Commission, the courts
or any other body. |
6.8 Referral of Complaints
| (a) |
At any time before a binding decision is made
by the TIO, a member may notify the TIO: |
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(i) |
that the member considers that a complaint has
given rise to: |
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an issue of importance to the member's business,
or |
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an issue involving an important or novel point of policy or
law; and |
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(ii) |
that within ninety (90) days the participant or
the complainant: |
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will be seeking advice from the Australian Communications
Authority, the Australian Competition and Consumer Commission,
or another person or body, or |
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will be instituting legal proceedings; and |
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(iii) |
that, in the case of legal proceedings instituted
by a member, the member will: |
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pay the complainant's costs and disbursements (to be taxed,
if not agreed, on a solicitor and own client basis) of the proceedings
at first instance and any subsequent appeal proceedings commenced
by the member (except by way of respondent's notice, cross appeal
or other similar procedure), and |
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make interim payments on account of such costs if and to the
extent that it appears reasonable to the member to do so; and |
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(iv) |
that the member will not take the action on which
the complaint is founded pending resolution of the wider issue. |
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On receipt of such notice, the TIO shall not proceed
with the complaint unless: |
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(i) |
the TIO forms the opinion that any delay would
jeopardise a fair resolution of the complaint or would cause
unreasonable hardship to the complainant; or |
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(ii) |
the member, or the complainant, fails to seek
advice from the Australian Communications Authority, the Australian
Competition and Consumer Commission or another person or body
or to institute legal proceedings within the time specified
in the notice. |
| (b) |
Where, at any time after receipt of a complaint,
the TIO: |
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(i) |
forms the opinion that the complaint could have
been made by the complainant to the Australian Communications
Authority, the Australian Competition and Consumer Commission
or another body; and |
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(ii) |
forms the opinion that the complaint could be
more conveniently or effectively dealt with by the Australian
Communications Authority, the Australian Competition and Consumer
Commission or such other body; and |
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(iii) |
obtains the consent of the complainant to refer
the complaint to the Australian Communications Authority, the
Australian Competition and Consumer Commission or such other
body; |
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the TIO may decide not to investigate the complaint,
or not to investigate the complaint further, as the case may
be. |
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If the TIO so decides, the TIO must: |
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(i) |
refer the complaint to the Australian Communications
Authority, the Australian Competition and Consumer Commission
or such other body as appropriate; |
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(ii) |
give written notice to the complainant and the
member stating that the complaint has been so referred; and |
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(iii) |
give to the Australian Communications Authority,
the Australian Competition and Consumer Commission or such other
body all information or documents that relate to the complaint
and that are in the TIO's possession or under the TIO's control. |
6.9 Restriction on Members Commencing
Proceedings
| Subject to paragraph 6.8(a), between the time
when member is notified of a complaint to the TIO and the time
when that complaint is settled, withdrawn or resolved or otherwise
ceases being handled by the TIO, the member complained against
must not commence proceedings in any court, tribunal or alternative
dispute resolution forum in relation to the subject matter of
the complaint. However, the following exceptions apply: |
| (a) |
If the TIO does not handle the complaint within
a reasonable period of time, the member may give written notice
to the TIO that if the complaint is not settled, withdrawn or
resolved (or the TIO does not otherwise cease handling it) within
60 days of the date the TIO received the notice, the member
intends to commence such proceedings. If the complaint is not
settled, withdrawn or resolved (or the TIO does not otherwise
cease handling it) within that period, the member may commence
such proceedings and must promptly notify the TIO of the commencement
of the proceedings. |
| (b) |
The member may commence such proceedings (including, interlocutory
proceedings) where necessary in order to prevent any ongoing,
or imminent and significant risk of, physical injury to persons
or damage to or interference with equipment or infrastructure. |
| (c) |
The member may commence court proceedings in which the principal
issue is whether the TIO has jurisdiction to handle the complaint
or the interpretation of the TIO Constitution. |
| |
| This paragraph 6.9 does not prevent the member
reporting a matter to any public agency responsible for the
conduct of criminal investigations, enquiries or prosecutions
(eg a police force) or becoming involved in criminal investigations,
enquiries or prosecutions instigated by such an agency. |
7. Other Powers and
Responsibilities of the TIO
| 7.1 |
The TIO is responsible for: |
| |
(a) |
the overall performance of the TIO scheme including,
but not limited to, meeting such objectives as are determined
by the Council from time to time; |
| |
(b) |
managing the day to day operations of the TIO
scheme, including but not limited to, the appointment and termination
of employment of staff; |
| |
(c) |
attending, in a non-voting capacity, meetings
of the Council at the invitation of the Council; |
| |
(d) |
liaising with other industry bodies, the Australian
Communications Authority, the Australian Competition and Consumer
Commission and other relevant government authorities and, in
consultation with the Council, developing working procedures
with these bodies where appropriate; |
| |
(e) |
in consultation with the Council, developing procedures
for the fair, just, economical, informal and expeditious handling
of complaints; |
| |
(f) |
in consultation with the Council, promoting the
TIO scheme and its complaint-handling procedures; |
| |
(g) |
making recommendations to the Council on the TIO
Constitution; |
| |
(h) |
in consultation with the Council, preparing financial
budgets and business plans and any subsequent amendments thereto; |
| |
(i) |
submitting proposed financial budgets and business
plans and any subsequent amendments thereto to the Council for
referral to the Board with recommendations and/or comments as
the Council thinks fit; |
| |
(j) |
controlling and monitoring expenditure within
the agreed budget and for providing regular reports to the Council
and the Board on expenditure; |
| |
(k) |
preparing the annual report of the TIO; |
| |
(l) |
at the TIO's discretion, making ad hoc confidential
reports to members and the Council; |
| |
(m) |
at the TIO's discretion, making general observations
about the operation of the TIO scheme in any public forum; |
| |
(n) |
acting as an interface with the public for the
receipt and referral of complaints; |
| |
(o) |
keeping adequate data on complaints or requests
for information, both for reporting purposes and to identify
the sources of practices giving rise to similar complaints;
|
| |
(p) |
ensuring that an accurate up-to-date list of all
members of the Telecommunications Industry Ombudsman Limited
is readily available to the public at all reasonable times (and
that when that list is inspected by a member of the public,
that person is first informed of the limitations imposed by
the Corporations Law on the use to which the information contained
in the list may be put); and |
| |
(q) |
the nomination to the Council of the Deputy TIO. |
| |
|
| 7.2 |
The TIO also has the power: |
| |
(a) |
to delegate such of the TIO's functions as may
be convenient for the efficient day-to-day operation of the
TIO scheme, other than the power: |
| |
|
(i) |
to make binding decisions under paragraph 6.1, |
| |
|
(ii) |
to make recommendations under paragraph 6.2, |
| |
|
(iii) |
to provide written reasons under paragraph 6.3, |
| |
|
(iv) |
to make findings of fact under paragraph 6.4, and |
| |
|
(v) |
to exercise arbitration powers under paragraph 6.5, |
| |
which powers may only be delegated to a person
occupying the position of Deputy TIO, and other than any power
which is referred to in paragraph 3.1(3) and which is specified
by the relevant industry code or industry standard, or under
the relevant legislation, as not being delegable; and |
| |
(b) |
to make a report to a member where, in the TIO's
opinion, the general telecommunications policy or commercial
practices of a member: |
| |
|
(i) |
have contributed to a complaint; |
| |
|
(ii) |
have been identified as the source of a number of similar
complaints; |
| |
|
(iii) |
have impeded the investigation or handling of a particular
complaint; or |
| |
|
(iv) |
operate in such a manner that the TIO considers that the policy
or practice should be referred to the Australian Communications
Authority. |
| |
(c) |
to publish the TIO’s Determinations, Directions
and Recommendations provided that the anonymity of the complainant
and the TIO Member is preserved. |
| |
|
| 7.3 |
In exercising the powers of determination or recommendation
under paragraph 6.1 and 6.2 respectively, the TIO shall not
make a determination or recommendation which, when given effect,
would involve a member contravening any law of the Commonwealth
or of a State or Territory. |
8. Budgets
| It is the function of the Board to: |
| (a) |
set global limits for funding; and |
| (b) |
approve budgets and any additional expenditure not provided
for in the current budget. |
| |
| In deciding whether or not to approve any proposed
budget, the Board shall be entitled to consider: |
| (i) |
the ongoing financial stability or viability of TIO Limited;
but |
| (ii) |
otherwise shall only be concerned to ensure that the particular
budget comes, or is likely to come, within the global limits
it has set. |
| |
| The Board shall not otherwise take into consideration
the business decisions of the TIO or Council (as the case may
be) in determining how those funds should be allocated within
any particular budget. Nothing shall preclude the Board from
seeking or receiving information about the budget and expenditures,
both past and projected, to assist the Board in setting funding
limits appropriate to the operation of the TIO scheme. |
| |
|
| Because the TIO has responsibility for managing
the day-to-day operations of the TIO scheme, the TIO is responsible
for the preparation of financial budgets and business plans
and any subsequent amendments, in consultation with the Council.
The TIO must submit proposed budgets, plans and/or amendments
to the Council. The TIO is responsible for controlling and monitoring
expenditure within the agreed budget and for providing regular
reports to the Council and the Board on expenditure. |
| |
|
| The Council must consider the proposed budget
plans and/or amendments submitted by the TIO. The Council must
then refer these to the Board with such comments and/or recommendations
as the Council thinks fit. |
The Council
9. Role and Responsibilities
of the Council
| 9.1 |
The primary responsibilities of the Council are
the oversight of the TIO scheme and maintenance of the independence
of the Ombudsman. The Council is to act as an intermediary between
the TIO and the Board. The Council's role is complementary to
that of the TIO. While the TIO will have responsibility for
the day to day operation of the scheme, it is the function of
the Council to provide advice to the TIO on policy and procedural
matters. |
| |
|
|
| |
Council members are selected for their knowledge
of consumer interests and customer service issues within the
context of the telecommunications industry. These resources
will assist the Council in fulfilling its role of providing
policy and procedural advice to the TIO. |
| |
|
|
| 9.2 |
Specifically, the duties of the Council are: |
| |
(a) |
To recommend to the Board a person to be appointed as the
TIO. Similarly the Council may recommend to the Board the termination
of the appointment of the TIO. |
| |
(b) |
To make recommendations, if it thinks fit, to the Board concerning
the appointment and termination of an Acting TIO and a Deputy
TIO. |
| |
(c) |
Within the framework of the TIO Constitution, to determine
policies and practices relating to the administration of the
TIO scheme. |
| |
(d) |
To monitor the TIO Constitution and, from time to time, recommend
to the Board amendments to the TIO Constitution as the Council
thinks fit. |
| |
(e) |
To receive and consider recommendations from the TIO for amendments
to the TIO Constitution. |
| |
(f) |
To provide advice to the TIO on the allocation of resources
within the framework of global resources approved by the Board. |
| |
(g) |
To receive and consider financial budgets and business plans
(and any subsequent amendments thereto) prepared by the TIO. |
| |
(h) |
To refer the financial budgets, plans or amendments to the
Board and to comment and/or make recommendations to the Board
as the Council thinks fit. |
| |
(i) |
Within twelve (12) months of commencement of operation of
the TIO scheme, and within every twelve (12) months thereafter,
to review the financial limits on the determinative and recommendatory
powers of the TIO as referred to in paragraphs 6.1 and 6.2. |
| |
(j) |
To make recommendations to the Board as to the appropriateness,
scope and timing of a review of the TIO scheme. |
| |
(k) |
To provide advice to the TIO on the promotion of the TIO scheme
and the preparation of the Annual Report. |
10. Relationship
between the Council and the TIO
The Council acts as intermediary between the TIO and the Board
and in this way ensures the independence of the TIO. The Council
has prime responsibility for policy matter and oversight of the
TIO scheme's operation. The TIO has responsibility for the day to
day operation of the TIO scheme and the resolution of individual
complaints. These roles are complementary and, as a general rule,
the TIO would attend Council meetings as an observer.
11. Relationship
between the Council and the Board
| 11.1 |
The Board is responsible for the formal administration
of the Company, the Telecommunications Ombudsman Limited, and
exercises final authority in relation to the financial affairs
of the Company. These matters are most appropriately exercised
by Directors. Responsibility for complaint handling, policy
matters and the day to day administration of the TIO scheme
rests with the Council and the TIO, and not the Board. |
| |
|
| 11.2 |
From time to time, the efficacy of the TIO Constitution will
need to be reviewed. It is the role of the Council, in consultation
with the TIO, to prepare recommendations for amendments of the
TIO Constitution. Final authority for approval of amendments
to the TIO Constitution rests with the Board after consultation
with the Federal ministers responsible for communications and
consumer affairs policy. |
| |
|
| 11.3 |
It is the responsibility of the Board to guarantee sufficient
funding for the operation of the TIO scheme. Appropriate funding
will be established in accordance with the principles set out
in clause 8 (Budgets). It is the joint responsibility of the
Council and the TIO to ensure the TIO scheme is operated efficiently
within the global limits for funding set by the Board. |
Document current as at: 26 April 2007
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