ACCAN Informed Consent Project (21 August 2009)

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1. Executive Summary

• Objectives
• Key findings
• Key recommendations
• Methodology
• Participants

Objectives

This research project is designed to inform the development of a consumer perspective on ‘informed consent’ in the communications industry. It includes a focus on the information that should be provided to a consumer, the method of conveying such information and the point at which a consumer is taken to have become informed.

The project also addresses the issue of obtaining informed consent from specific consumer categories, including:

• People with relevant disabilities (intellectual disabilities, cognitive impairment, hearing impairment, visual impairment and communication impairment);
• Indigenous consumers;
• Young people; and
• Culturally and linguistically diverse consumers.

Key findings

This research project made a number of key findings that could contribute to an improved approach to informed consent in the communications sector:

• Organisations participating in the project (including regulators, complaints schemes, community advocacy organisations and casework organisations) reported receiving a total of more than 40,000 communications sector consent complaints each year;
• Organisations participating in the project reported significant concerns regarding consent and vulnerable consumer groups, including the limited capacity of some consumers to consent to communications contracts;
• There is no central / consistent guidance available to industry on consent requirements, or best practice guidance on obtaining consent from consumers; and
• The few consent requirements that exist in laws and codes are inconsistent and do not include coverage of key issues such as capacity; and
• Current industry practice in obtaining consent is extremely diverse and often ineffective.

Key recommendations

This research project makes several important recommendations:

• Industry and consumers would benefit from a move to setting out consistent requirements for consent in laws and codes;
• Consumers would benefit from a requirement to record consent;
• Industry and consumers would benefit from the development and distribution of best practice guidance on obtaining consent from consumers in specific consumer categories;
• Further research is required on consent issues and barriers to accessing redress mechanisms for some specific consumer categories;
• Further research is required in order to evaluate the effectiveness of potential methods to obtain informed consent; and
• It is important to recognise the limits of relying on consent and to continue to develop other consumer protection tools where appropriate.

Methodology

The research project included a detailed review of literature and of policy / best practice guidance in Australia and internationally – backed by the collection of case studies and a brief survey of regulators and front-line consumer caseworkers.

Participants

• Australian Communications Consumer Action Network (ACCAN)
  The project was commissioned by ACCAN – the new peak body for consumers and consumer organisations on issues including telecommunications and the Internet.[1]
• Galexia
  The project research and writing tasks were undertaken by Galexia. Galexia is an independent consultancy specialising in law and technology.[2]
• Advisory Committee
  The research project was guided by input from an Advisory Committee consisting of experts in consumer protection and communications regulatory issues. Members included:
  • Sue Salthouse, ACCAN Board (chair)
  • Helen Anderson, Department of Broadband, Communications and the Digital Economy (DBCDE)
  • Loretta Kreet, Legal Aid QLD
  • Jackie Thorpe, Australian Competition and Consumer Commission (ACCC)
  • Paul Harrison, Deakin University
  • Gerard Goggin, UNSW, ACCAN Board

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[1] <http://www.accan.org.au>

[2] <http://www.galexia.com>

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