Dated 31 May 2002
This document is at http://www.privacy.org.au/Papers/SubmnACIF0205.html
The Australian Privacy Charter Council welcomes the opportunity to comment on the draft guideline. As you know, we have closely followed the discussions that have led to the guideline, having participated in the recent withdrawal of consumer representation from ACI processes because of concerns about the inadequacy of current arrangements.
Information about the Charter Council and its role can be found at http://www.apcc.org.au
Our general view is that the draft Guideline is positive and we support the establishment of a Consumer Consultative Council along the lines set out in the Guideline. As you know, we continue to have grave reservations about the entire regulatory framework for telecommunications, and in particular about the value of consumer codes given the length of time they take, the reluctance of the players to sign up, and the unwillingness and/or inability of the ACA to effectively enforce them. There is a major risk that the existence of Codes that are not effectively implemented works to the detriment of consumers by allowing telecommunications businesses to hide behind an illusion of adequate consumer protections.
However, if ACIF is to continue to produce consumer codes then it is important that they reflect consumer interests. The proposed Consumer Consultative Council may assist in improving outcomes even if it cannot rectify the fundamental flaws.
The criteria for membership are generally sound, but we caution against the use of any of these criteria to exclude members who are well qualified on at least one of the other grounds.
Public interest groups vary widely in terms of their `representativeness' - some like ACA and CTN have membership bases but the credibility of others is founded entirely on the clarity and cogency of their analyses, without any claim to `represent' any particular population. ACIF should not rely on crude measures of membership or support levels in deciding on membership. We welcome the inclusion of privacy interests in the listing of consumer sectors to be represented. Over the past decade, privacy has emerged as a significant issue (particularly in telecommunications) and the need for specialist advocacy on behalf of all consumers has been recognised. While general consumer groups such as CTN, ACA and Electronic Frontiers Australia have made a significant contribution, so too have the two specialist privacy advocacy groups, the Australian Privacy Charter Council and the Australian Privacy Foundation. We believe that in a council of up to fifteen members dealing with `privacy-intensive' telecommunications matters, reservation of one place for a specialist privacy advocate is justified.
Also, the criterion `commitment to working cooperatively within the telecommunications industry to achieve negotiated outcomes' should not be taken as requiring a public agreement with the current legislative and regulatory framework. It would obviously not be appropriate for members to adopt a `spoiling' role, but equally they must remain free, outside the Consumer Council, to criticize the existing framework and lobby for change. In this context we welcome the specific reference to a wider role for the Consumer Council itself in the paragraph on roles and responsibilities.
Paragraph (v) under Membership should specifically mention the Federal and State Privacy Commissioners as persons who might be invited to be represented at meetings with observer status.
The specific forms of input listed as dot points should include two important ones ascribed to the DAB earlier in the Guideline - in particular requesting membership of a Working Committee and representing the Consumer Council's views directly to a Reference Panel or Working Committee (on which there may not be a consumer representative) in the course of their work.
We have a concern about the statement that "[the Consumer Council] cannot inhibit or delay the approval, development or implementation of a Standard, Code or Guideline." Whilst the situation will hopefully not arise, one could envisage an issue on which a majority of the Consumer Council felt so strongly that it would legitimately seek to delay or prevent the implementation of a particular ACIF initiative. While the Consumer Council can clearly not have a veto, the possibility of such a legitimate lobbying role should at least be acknowledged. Experience of the last few years should surely have demonstrated that it will not always be possible to achieve a consensus on some difficult issues.
In this context, the Guideline should perhaps say something about the issue of confidentiality and ability of members to speak publicly about matters under consideration by the Consumer Council. A balance needs to be struck between facilitating early and frank discussion of provisional positions and proposed initiatives, and not limiting members' freedom to participate in public debate.
The draft guideline correctly identifies different levels of resources as a critical factor influencing the ability of consumer (and other) groups to participate in ACI processes. In this respect the DAB may not be a good model as we understand that the disability groups represented are sufficiently well resourced, mostly with government support, for staff to participate in consultative processes of this sort.
The established practice of payment of travel and accommodation expenses for consumer representatives on ACIF committees and panels and working groups is helpful but does not deal adequately with the real resourcing issue for those groups, such as the Charter Council, which are comprised entirely of volunteers and have no funds to recompense them for their time. This is a major problem and means that groups such as ours have to rely on the generosity of our members in devoting their time free of charge, if and when available. The increasing trend to establish consultative mechanisms in a wider range of industries and sectors is welcome, but unfortunately has not been accompanied by any funding to make participation possible.
If we are to participate in ACIF consultative processes, it is essential that some remuneration be made available, preferably in the form of sitting fees - set at a realistic level to reflect the need for informed and constructive input from representatives familiar both with the relevant issues and with committee processes.
We note that ACIF has written to the ACA about funding of consumer representation and welcome this initiative. The Charter Council has also written to the ACA in support.
We have also seen a draft of the CTN submission on the Consultative Council and support all of their recommendations.
Please let me know if you would like any further information about the Charter Council's views.
Nigel Waters
Convenor
Australian Privacy Charter Council
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Created: 7 February 2003
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