3CDispute resolution scheme Empowered by ss 155ZG, 155ZH
1Purpose of dispute resolution scheme
The purpose of the dispute resolution scheme is to ensure that, if 2 or more persons have a dispute within section 155ZI in relation to an installation, they have access to a dispute resolution scheme for resolving that dispute.
To achieve the purpose, a scheme is to be established that—
- provides for a range of dispute resolution processes, including facilitative, evaluative, and determinative processes, so that—
- each dispute can be resolved through the process assessed to be the most appropriate to the particular dispute, having regard to the nature and circumstances of that dispute; and
- if the dispute cannot be resolved by agreement between the parties, the dispute is determined by a neutral third party whose decision is legally binding on the FTTP service provider or a network operator (if either is a party to the dispute); and
- the scheme combines both formality and flexibility in a manner most likely to achieve the purposes referred to in paragraph (b); and
- each dispute can be resolved through the process assessed to be the most appropriate to the particular dispute, having regard to the nature and circumstances of that dispute; and
- provides for disputes to be assessed promptly after they are received for the purposes of—
- identifying the process that is the most appropriate for resolving the dispute; and
- ensuring that the dispute is resolved within the time provided in the rules of the scheme, whether by agreement between the parties or determination by a neutral third party.
- identifying the process that is the most appropriate for resolving the dispute; and
Notes
- Schedule 3C clause 1: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
2Interpretation
In this schedule, unless the context otherwise requires,—
affected person has the same meaning as in section 155D
approved scheme is the disputes resolution scheme approved by the Minister under clause 5 (provided that the scheme's approval has not been withdrawn)
dispute resolution scheme, at any time, means whichever of the following is in force under this schedule at the time:
- the approved scheme:
- the regulated scheme
installation includes a proposed installation, an installation being carried out, and an installation that is completed (or claimed or disputed to be completed)
member, in relation to the dispute resolution scheme, means an FTTP service provider or a network operator
provider,—
- in relation to a scheme, means the person responsible for that scheme; and
- in relation to a proposed scheme, means the person proposed to be responsible for that scheme
regulated scheme means the scheme provided for in regulations made under clause 16.
- the approved scheme:
Notes
- Schedule 3C clause 2: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
3Application for approval
The provider of a scheme may apply to the Minister for approval of the scheme as the approved scheme.
The application must include—
- the rules of the scheme; and
- any other information that the Minister, by notice in the Gazette, prescribes as being required to be included in an application under this clause; and
- the prescribed fee (if any).
The Minister may ask an applicant to supply any further information or documentation in support of the application.
Notes
- Schedule 3C clause 3: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
4Mandatory considerations for approval
When considering an application under clause 3, the Minister must have regard to the following considerations in light of the principles listed in subclause (2):
- whether the scheme is capable of meeting the purpose of the dispute resolution scheme as set out in clause 1:
- the views of persons who are required to be members:
- whether the scheme is capable of dealing with the wide range of disputes that persons and entities are entitled to refer to it:
- whether the applicant has adequate funding to enable it to operate the scheme according to its purpose and in accordance with its rules:
- whether the applicant’s directors and senior managers are competent to manage a dispute resolution scheme:
- whether the rules of the scheme are adequate and comply with—
- the principles listed in subclause (2); and
- the requirements of clause 12 (rules of approved scheme).
- the principles listed in subclause (2); and
The principles are—
- accessibility:
- independence:
- fairness:
- accountability:
- efficiency:
- effectiveness.
Compare
- 2010 No 116 Schedule 4 cl 5
Notes
- Schedule 3C clause 4: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
5Minister must decide application for approval
After considering an application made under clause 4, the Minister may—
- approve the scheme as the approved scheme; or
- decline the application.
The Minister may decide whether to approve the scheme or decline the application only after consulting—
- the industry bodies (if any) for the telecommunications industry; and
- any other persons (or their representatives) that the Minister considers are likely to be substantially affected by the approval.
A failure to consult the persons referred to in subclause (2) does not affect the validity of any approval of the scheme.
The Minister may approve a scheme if there is already another approved scheme, but in that case the approval does not take effect until the approval of the other scheme is withdrawn.
Compare
- 2010 No 116 Schedule 4 cl 6
Notes
- Schedule 3C clause 5: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
6Decision must be notified and publicised
The Minister must, as soon as practicable after deciding an application,—
- notify the applicant of the decision; and
- if the decision is to approve the application, ensure that the approval is publicised.
Compare
- 2010 No 116 Schedule 4 cl 7
Notes
- Schedule 3C clause 6: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
7Rules of approved scheme not to change without ministerial approval
The rules of the approved scheme must not be changed unless the Minister approves the change.
If the provider of the approved scheme notifies the Minister of a proposed rule change, the rule change is deemed to be approved by the Minister 45 working days after the date of notification, unless the Minister declines approval within that 45-day period.
Despite subclause (2),—
- the Minister may require the provider of the approved scheme to provide further information before the Minister decides whether to approve or decline the proposed rule change; and
- if the Minister requires further information to be provided, the rule change is deemed to be approved by the Minister 45 working days after the Minister receives that information, unless the Minister declines approval within the 45-day period.
The Minister may decline approval for a rule change only on the grounds that, if the rules were changed as proposed, they would not comply with the principles listed in clause 4(2) or the purpose in clause 1.
Compare
- 2010 No 116 Schedule 4 cl 8
Notes
- Schedule 3C clause 7: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
8Notice of intention to withdraw approval
If the Minister proposes to withdraw approval for an approved scheme, the Minister must notify the provider.
The Minister's notice must—
- state that the Minister intends to withdraw approval of the scheme; and
- identify which of the 1 or more grounds described in subclause (3) apply; and
- state why the Minister considers those grounds apply; and
- specify the notice period, which must be at least 3 months, during which the provider may object, under clause 9, to the intended withdrawal.
The only grounds for withdrawing approval are as follows:
- the scheme is not, or is no longer, capable of meeting the purpose of the dispute resolution scheme as set out in clause 1:
- there has been a loss of broad support for the scheme:
- there has been a failure to comply with the rules of the scheme:
- the provider has not publicised the rules as required by clause 12(2):
- the provider has not supplied the Minister with either or both of the following:
- the provider has not notified the Minister before changing the rules of the scheme as required by clause 7:
- the scheme no longer complies with the principles listed in clause 4(2).
The Minister's notice may require the provider to—
- notify all members of the Minister's intention to withdraw approval of the scheme; or
- provide the Minister with a list of the names and business addresses of current members so that the Minister can, if the Minister wishes, notify all members of the Minister's intention to withdraw the scheme's approval.
Compare
- 2010 No 116 Schedule 4 cl 9
Notes
- Schedule 3C clause 8: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
9Objection to withdrawal of approval
During the notice period, the provider may object (with reasons) to the proposed withdrawal of approval.
The Minister must consider any objection that is received before the end of the notice period.
Compare
- 2010 No 116 Schedule 4 cl 10
Notes
- Schedule 3C clause 9: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
10Withdrawal of approval
If the Minister has given notice of intention to withdraw his or her approval, the Minister may withdraw the approval at any time after the expiry of the notice period.
When considering whether to withdraw approval, the Minister must have regard to the considerations referred to in clause 4(1) in light of the principles listed in clause 4(2).
The Minister must, as soon as practicable, withdraw the approval of an approved dispute resolution scheme if the provider requests that it be withdrawn, in which case the scheme is no longer approved from the date that is 6 months after the date of withdrawal of approval.
Compare
- 2010 No 116 Schedule 4 cl 11
Notes
- Schedule 3C clause 10: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
11Effect of withdrawal of approval
On the date that the withdrawal of approval of a scheme takes effect, the members of the scheme become members of—
- any other approved scheme that is approved with effect from that date; or
- the regulated scheme.
Compare
- 2010 No 116 Schedule 4 cl 12
Notes
- Schedule 3C clause 11: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
12Rules of approved scheme
The rules of the approved scheme must provide for, or set out, the following:
- who may refer disputes to the scheme for resolution:
- how disputes may be referred to the scheme:
- the kinds of disputes that the scheme will deal with:
- when a dispute referred to the scheme may be investigated under the scheme:
- that any investigation as part of a process for resolving a dispute must be undertaken in a way that is consistent with the rules of natural justice:
- when a neutral third party may make a determination on a dispute referred to the scheme:
- that a hearing for the purposes of making a determination on a dispute is to be conducted on the papers, unless the person making the determination thinks that an oral hearing is required:
- the procedure for conducting a hearing on the papers:
- the time within which a determination on a dispute is to be made:
- that a determination must be made in writing and include the reasons of the decision maker:
- that, in relation to a dispute, any information may be considered and any inquiry may be made, that is fair and reasonable in the circumstances:
- the kinds of remedial action that the scheme may require FTTP service providers or network operators to take in order to resolve disputes (for example, a requirement to compensate up to a certain amount stated in the rules, or to carry out reinstatement work, or, in the case of an affected person, to consent to a category 2 installation):
- when parties to a dispute are bound by an agreement or a determination under the scheme and what rights parties to a dispute (other than scheme members) have to appeal against a determination:
- that the scheme may stop investigating and resolving a dispute if any party to the dispute takes alternative court action against another party to the dispute:
- that the scheme will not charge any person (other than a scheme member) a fee for an investigation or assistance to resolve a dispute (including by determination, if the parties to the dispute are unable to resolve the dispute by agreement):
- how the provider will promote knowledge about, and access to, the scheme to members and persons entitled to make a complaint.
The responsible person of the approved scheme must publicise the rules.
Compare
- 2010 No 116 Schedule 4 cl 13
Notes
- Schedule 3C clause 12: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
13List of members
The provider of the approved scheme must maintain and publicise a list of current members of the scheme.
Compare
- 2010 No 116 Schedule 4 cl 14
Notes
- Schedule 3C clause 13: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
14Five-yearly review
The provider of the approved scheme must ensure that, 2 years after the scheme starts and at least every 5 years after that, a review of the scheme is carried out and a report of the review is provided to the Minister within 3 months of its completion.
The report may be of an independent review or a review by the provider, whichever the Minister thinks appropriate, having regard to all the circumstances at the time, including the likely costs associated with an independent review and whether those are justified, having regard to the scheme’s operations and performance.
Compare
- 2010 No 116 Schedule 4 cl 15
Notes
- Schedule 3C clause 14: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
15Provision of information
The provider of the approved scheme must, on request by the Minister, provide information on the following:
- matters relating to any information or reports that the provider of the approved scheme is required to provide under the rules of the scheme:
- the scheme's compliance with the principles listed in clause 4(2).
Nothing in this clause or clause 14 authorises a breach of the Privacy Act 2020 or any obligation of confidentiality.
Compare
- 2010 No 116 Schedule 4 cl 17
Notes
- Schedule 3C clause 15: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
- Schedule 3C clause 15(2): amended, on , by section 217 of the Privacy Act 2020 (2020 No 31).
16Regulations setting out rules of regulated schemes
The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing for the regulated scheme.
The regulations must—
- set out the rules of the scheme, which must comply with clause 12; and
- be consistent with the purpose in clause 1.
Before recommending that regulations be made, the Minister must consult—
- the industry bodies (if any) for the telecommunications industry; and
- any other persons (or their representatives) that the Minister considers are likely to be substantially affected by the recommendation.
However, a failure to consult the persons referred to in subclause (3) does not affect the validity of the regulations.
Regulations under this clause are secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare
- 2010 No 116 Schedule 4 cl 18
Notes
- Schedule 3C clause 16: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
- Schedule 3C clause 16(5): inserted, on , by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
17Order in Council appointing provider of regulated scheme
The Governor-General may, by Order in Council made on the recommendation of the Minister, appoint a person to provide the regulated scheme.
The Minister may make a recommendation under this clause only if the Minister is satisfied that the person appointed as the provider—
- is a formally constituted dispute resolution body; and
- is capable of providing the scheme in accordance with the purpose in clause 1 and the rules of the scheme.
An order under this clause is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Compare
- 2010 No 116 Schedule 4 cl 19
Notes
- Schedule 3C clause 17: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).
- Schedule 3C clause 17(3): inserted, on , by section 3 of the Secondary Legislation Act 2021 (2021 No 7).
18Notice of intention to revoke appointment
An appointment made by Order in Council may not be revoked on the ground that the Minister has approved, or intends to approve, an approved scheme under clause 5 unless the Minister has given the scheme provider at least 3 months' notice in writing of the intention to revoke the appointment.
Nothing in this clause limits the grounds on which the Minister may otherwise recommend the revocation of any appointment.
Compare
- 2010 No 116 Schedule 4 cl 20
Notes
- Schedule 3C clause 18: inserted, on , by section 21 of the Telecommunications (Property Access and Other Matters) Amendment Act 2017 (2017 No 16).