Interview with Greg Jennet, ABC News Afternoon Briefing

GREG JENNETT, HOST: Well, some good may come from last November's Optus network crash, now that a Review has been completed by investigator Richard Bean. He's come up with a series of recommendations to overhaul management of the Triple Zero emergency line. No one had taken a root and branch look at this vital service for quite a while - decades, in fact. The Communications Minister, Michelle Rowland accepted all 18 recommendations from the Review. We talked through the changes that have been ordered as we sat beneath the famous Budget Tree here in Parliament's Senate Courtyard.

Michelle Rowland, welcome back to the program. Now, Optus self-inflicted network failure back in November of last year highlighted obviously serious shortcomings with Triple Zero. One of the recommendations from the Review is that compulsory requirements will be embedded on carriers in the future. But isn't it currently a requirement that they manage and automatically cut over these calls if they have a tower go down? So, how will this new regime differ?

MICHELLE ROWLAND, MINISTER FOR COMMUNICATIONS: Part of what you're talking about there is the protocol for camping-on other mobile networks when one network goes down, in order that Triple Zero calls will actually go through. And if I can just explain what happened here, it was very useful that Richard Bean, in his report, highlighted what was the failure of the carriage of these Triple Zero calls. It's because Optus 3G towers were not programmed to what's called ‘automatically wilt’, so to power down. So, we had a signal that was intended for Triple Zero actually continually trying to find the Optus network, that was failing, and it didn't camp-on to either a Telstra or a TPG-Vodafone network. 

Now what has happened in this case, is that Optus has given assurances that that problem has since been fixed, but arising from one of the Bean recommendations following a mass outage, it will be a requirement on carriers to report about what they have done to ensure that remedial action has been taken. I expect that that will form part of that. But you also ask about communications, I think, and sort of protocols. One of the protocols that's in place at the moment is around carriers sharing information and communicating with customers, but also with other aspects of the ecosystem. That protocol, Richard Bean makes very clear, wasn't followed by Optus in this instance, and his recommendation is that that be made mandatory, and we accept that finding.

JENNETT: And with what sort of penalties would you have in mind for non-compliance?

ROWLAND: Well, as we implement this, and we'll be implementing all the recommendations within 12 to 18 months, some of those can go to carrier license conditions; they can go to the Triple Zero determination. So, we'll determine what's the best instrument to put that in. But it's very clear that that wasn't followed. It was very important for consumers and small businesses alike to have that communication that didn't occur. 

Part of the whole reason for this inquiry was to ensure that the whole industry lifts and does better next time. We can never be assured that a mass outage won't happen again in the future, but we can put in place the settings to help minimise that, and to also have a much better arrangement if it happens.

JENNETT: Okay, so one of the settings that's recommended is the creation of a Custodian, a single Custodian, as they have in New Zealand and the UK. Who would carry out those functions? Is it a new and independent entity of any carrier?

ROWLAND: It's a good question, and the Review doesn't specify whether it should be a standalone entity, a single person or within some existing body. But I think what's important here is that it be led by the Telecommunications Industry Ombudsman, given their extensive consumer knowledge, the confidence that the industry has in her, but also utilising the ACMA and my Department to work out what this looks like. They'll be working on that capability and what will be the best result.

JENNETT: But it won't be a carrier, will it? Because there's another recommendation, I think it's recommendation 8, that says the traditional role carried out by Telstra here, which is “emergency call person”, or ECP, as they call it, that's contractual and it's legislated, that is coming to a halt. Is that correct?

ROWLAND: They're quite separate. So, on one hand, there is the recommendation that we have this new Custodian because what was lacking in all of this process was a focus on the consumer and someone who stood in their shoes. And whilst all the players in this ecosystem of Triple Zero were saying, “well, I've ticked my box, I've stayed in my lane, I've done what I need to do,” that's not how the Triple Zero ecosystem should operate. So, there's that element there. We need to determine what that body will look like. But on the second hand, around the ‘emergency call person’, Telstra is currently contracted as the Emergency Call Person (ECP). And one of the Bean recommendations was that all of the regulatory arrangements be reviewed and that will be reviewed. That contract is part of that.

JENNETT: So, that may not continue in its current form? That Telstra ECP role?

ROWLAND: That will continue, there will still continue to be someone who's operating as the emergency call person, but we will review that contract to determine whether it's fit for purpose and whether it's operating effectively in accordance with the Bean recommendations. But again, I'll make this point: this was the most comprehensive review of the Triple Zero service in over a decade, so I think it's important we take that very seriously. There does need to be thought put into this, but we also need to ensure they're implemented with efficiency as well.

JENNETT: And it was strictly limited the Bean Review to the Optus failings on the 8 November last year. But that isn't the only Triple Zero fail, is it? I mean, Telstra itself had one on 1 March. Had these new arrangements been in place on 1 March, how would Telstra's response to that failure, I think it was about 100 calls affected, have differed?

ROWLAND: I think part of that goes to two separate issues. The first was around the carrier and their delivery of Triple Zero. The second was around Telstra's operation as the emergency call person. But absolutely the need to review that has been made very clear by what happened in recent times over that, the failure of manual systems, also the failure of systems and protocols that had been in place for some time. There was clearly errors made by Telstra, which they acknowledged themselves, and the need to do better there. So, I think part of this engagement with the industry is to ensure that all elements lift, including the emergency call person.

JENNETT: All right. Then there's compensation. The call in the Bean Review is for standardised, and I think the term is ‘fairer compensation’. Does that make it then impossible in the future to get in-kind compensation of the sort? Optus, I should say, offered that free data, faster connection speeds to home broadband, will that not be an option in the future?

ROWLAND: Bean doesn't rule that out in his report, but what he does go to is where there is a mass outage, there needs to be a mass solution. With so many people who've had the inconvenience, and many cases suffered financial hardship as a result of that, having such a great number of people needing to either go straight to Optus or pursue a case through the TIO, really is a situation that needs to be simplified. Again, this will be about the industry and the TIO working together. It's useful that they've also examined what happens in other network industries and some of those overseas cases. But whatever it is, it needs to be better than it is now, given the mass outage needs a mass response.

JENNETT: Yeah, I think there were comparisons with the energy industry, compensation and the like. Michelle, I might just take you also to the Online Safety Act. We've discussed it before. You've had an issues paper come out since, and then in the midst of that, of course, the dispute between the eSafety Commission and X. Just explain for those who still don't understand why and whether the Government is deliberately seeking to test the global reach of its takedown powers here.

ROWLAND: Well, to be clear, we have an Online Safety Act and an independent regulator in the eSafety Commissioner. This is action that the eSafety Commissioner has taken as an independent regulator implementing the requirements under Australian law. And part of that is a democratically elected Parliament of Australia has determined that there are certain types of content that should not be seen. They include depictions of actual violence, child sexual abuse material and pro-terror content. They're all called Class 1 content that are refused classification. What eSafety is seeking to do, plainly and simply, is to enforce the legislation that is there to have that taken down, and that is what X is disputing.

JENNETT: But why, with what lawyers would call this ‘extraterritorial reach’, it's not often sought in other areas of online regulation? Why in this case?

ROWLAND: I'm reluctant to add to the commentary there because these are precisely the matters that are in dispute and it's coming back in early May after that injunction expires. But I will say this: the Government backs eSafety. We've seen Peter Dutton and the Opposition all over the shop giving commentary on whether or not this is a worthy case. We back eSafety. The whole point here under the Online Safety Act is to keep Australians safe and the Government supports the work that is being done there.

JENNETT: You back it. But even in the case of overreach, if it is overreaching in its powers, and that, of course, is the assertion being made by Elon Musk and X, would you be prepared to say: “No, limit the jurisdiction here to territorial assertion?”

ROWLAND: Again, that is an assertion and I'm not prepared to enter debate on the substance of the legal case. I will point out that the Online Safety Act has only been in operation since the beginning of 2022. We know that eSafety undertakes a range of measures to have material taken down. They include cooperation with the platforms, but also, they include notices. In this case, one of those notices is being challenged. We support implementation of this Act and the actions by eSafety to keep Australians safe.

JENNETT: All right. More we could discuss. We might leave it for a future occasion. Michelle Rowland, always good to have you on the program.

ROWLAND: Pleasure.