EXPLANATORY STATEMENT
TELECOMMUNICATIONS (INTEGRATED PUBLIC NUMBER DATABASE – PERMITTED RESEARCH PURPOSES) INSTRUMENT 2007 (NO. 1)
Issued by the authority of the Minister for Communications, Information Technology and the Arts (the Minister)
The Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2007 (No. 1) (the Instrument) specifies kinds of research for the conduct of which access to information in the Integrated Public Number Database (IPND) may be permitted. The specified kinds of research are those the Minister considers to be in the public interest.
The IPND is an industry-wide database of all public telephone numbers (both listed and unlisted) and associated customer information including name and address information. It also includes information such as whether the number or address is to be listed in a public number directory and whether the number is used for residential, business, government or charitable purposes. The IPND is established and maintained by Telstra Corporation Limited (Telstra) as a condition of its carrier licence. All carriage service providers who supply carriage services to customers who have public numbers are obliged to provide customer information to Telstra for inclusion in the IPND.
Persons wishing to seek access to information in the IPND to conduct permitted research will have to apply to the Australian Communications and Media Authority (ACMA) for an authorisation under the IPND scheme.
Proposed section 295A of the Telecommunications Act 1997 (the Telecommunications Act), to be inserted by item 9 of Schedule 1 to the Telecommunications Amendment (Integrated Public Number Database) Act 2006 (the IPND Act), requires ACMA to establish an IPND scheme for the granting of authorisations that will permit certain persons to use and disclose protected communications information. The amendments in the IPND Act are a response to allegations of IPND information being directly used for purposes that are not authorised by the Telecommunications Act, such as marketing and debt collection.
The amendments amend the Telecommunications Act to:
- insert a definition of public number directory (PND) into the Telecommunications Act;
- permit access to information in the IPND for research purposes the Minister considers to be in the public interest, as set out in a legislative instrument;
- give ACMA a gatekeeper role in granting authorisations to access information in the IPND for the publication and maintenance of telephone directories and the conduct of permitted research; and
- introduce criminal offences and penalties for breaching a condition of authorisation and for unauthorised disclosure and use of IPND information.
The IPND scheme is established in a legislative instrument, the Telecommunications Integrated Public Number Database Scheme 2007, which will come into operation on 15 May 2007 when Schedule 1 to the IPND Act is proclaimed to commence. The scheme requires persons seeking access to information in the IPND for the purposes of publishing and maintaining a public number directory or conducting research the Minister considers to be in the public interest (as set out in the instrument), to apply to ACMA for an authorisation before access to IPND information may be granted.
Regulation Impact Statement
The Office of Best Practice Regulation has advised that a Regulation Impact Statement (RIS) is not required on the basis that a RIS was prepared and cleared by the Office of Best Practice Regulation prior to introduction of the Telecommunications Amendment (Integrated Public Number Database) Bill 2006 (now the IPND Act). It is the IPND Act which provides the legislative basis for the Instrument.
Consultation
The Instrument has been drafted in consultation with ACMA, the Office of the Privacy Commissioner and the Attorney-General’s Department, in response to commitments made by the Minister during passage of the Legislation. Individual consultations with current registered IPND users and other interested persons were conducted between 19 January 2007 and 7 February 2007.
A draft of the Instrument was released for public comment on 7 February 2007. The consultation period closed on 5 March 2007. Seven submissions were received through this process. ACMA also undertook consultation on the draft IPND scheme Instrument from 29 January to 2 March 2007. ACMA received 13 submissions.
Feedback on the draft legislative instrument was taken into account when finalising the instrument.
Legislative basis
The Instrument is made under:
- section 4 of the Acts Interpretation Act 1901, which allows the Instrument to be made before Schedule 1 to the IPND Act is proclaimed; and
- proposed subsection 285(3) of the Telecommunications Act.
Proposed subparagraph 285(1A)(c)(iv), to be inserted by item 3 of Schedule 1 to the IPND Act, provides that sections 276 and 277 of the Telecommunications Act do not prohibit a disclosure by a person of information or a document that relates to information (other than information relating to an unlisted telephone number) contained in the IPND, and the information or document relates to the affairs or personal particulars of another person (other than an address relating to an unlisted telephone number), and the disclosure is made to another person for purposes connected with the conduct of research of a kind specified in an instrument under proposed subsection 285(3), to be inserted by item 8 of Schedule 1 to the IPND Act.
Proposed subsection 285(3) empowers the Minister to specify kinds of research, by legislative instrument, for the purposes of subparagraph 285(1A)(c)(iv). The Minister must be satisfied that the kind of research specified is in the public interest.
The Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (see section 5 of that Act). The Instrument must therefore be registered on the Federal Register of Legislative Instruments, tabled in Parliament and is subject to Parliamentary disallowance.
NOTES ON CLAUSES
Clause 1 – Name of instrument
Clause 1 provides that the name of the legislative instrument is the Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2007 (No. 1)
Clause 2 - Commencement
Clause 2 provides that the Instrument commences on the same day as Schedule 1 to the IPND Act.
The IPND Act provides for Schedule 1 to commence on a day to be fixed by Proclamation, provided that day is within the period of 6 months from the day the Bill received Royal Assent. However, if Schedule 1 is not proclaimed within the 6 month period, then Schedule 1 will commence on the first day after the end of the 6 month period. The Bill received Royal Assent on 8 December 2006.
It is proposed that Schedule 1 will be proclaimed to commence on 15 May 2007. The reason for a delayed commencement of Schedule 1 is to allow time for the making of the legislative instruments provided for in the IPND Act, particularly the instruments establishing the IPND scheme, including this Instrument.
Clause 3 – Definitions
Clause 3 provides definitions of terms used in the instrument.
Clause 4 - Specification
Clause 4 provides for certain kinds of research to be specified as research purposes for which access to IPND information may be permitted. The intention of permitting disclosure and use of IPND information for these specified research purposes is to recognise the value of the IPND as an accurate and up-to-date source of information that may assist researchers in producing quality research that will be of benefit to the public.
The instrument specifies that the research conducted under any of these specified kinds of research must not be for a primarily commercial purpose. This is intended to mean that the purpose of the research project itself, that is, the purpose to which the research findings will be put, must not be primarily commercial. It is not intended to prevent the person conducting the research from doing so on commercial terms.
Use of the term ‘primarily’ is intended to permit some types of research, including health and medical research, which are in the public interest but which may have some commercial application in the future, to be conducted using IPND information. This may not be possible if the qualifying term ‘primarily’ is not used. Use of this term is not intended to permit commercial businesses, for example pharmaceutical companies, accessing IPND information to conduct research which has the primary purpose of developing a drug or other product or service for sale for commercial gain.
Paragraph 4(a)
Paragraph 4(a) specifies research, or the compilation or analysis of statistics, relevant to public health, including epidemiological research. This category of research is intended to permit access to information in the IPND to conduct health and medical research. The terminology reflects similar terminology used in the Privacy Act 1988 and National Privacy Principles.
Examples of the kind of research that might be conducted under this exception include surveys of child immunisation rates, obesity levels in children, research into mental health, the incidence of, and risk factors for, major diseases such as cancer, diabetes and heart disease and research into the health of specific communities such as the elderly, regional communities and indigenous communities.
This category of research is intended to permit access to IPND information in order to conduct health and medical research. Research of this kind does not involve contacting persons to conduct sales, promotional or fundraising activities or to impart information to, rather than collect information from, persons.
Paragraph 4(b)
Paragraph 4(b) specifies research regarding an electoral matter conducted by, or on behalf of, a registered political party, a political representative or a candidate in an election for a Parliament or local government authority.
An electoral matter is defined in the Instrument as a matter which is intended to, or is likely to, affect voting in an election, in particular an election to a Parliament or to a local government authority, or referendum under a law of the Commonwealth, a State or a Territory.
A registered political party is defined as a political party, or a branch or division of a political party, that is registered under the Commonwealth Electoral Act 1918, or a law of a State or Territory that deals with electoral matters and provides for the registration of political parties.
A political representative is defined as a member of Parliament or a councillor (however described) of a local government authority.
A Parliament is defined as meaning the Parliament of the Commonwealth, a State Parliament or the legislature of a Territory. A local government authority is defined as a local governing body established by or under a law of a State or Territory.
References to Territory do not include the Territory of Norfolk Island.
The intention of specifying this kind of research is to enable:
- Federal, State and Territory members of Parliament (both lower and upper house) and Local Councillors;
- Federal, State and Territory registered political parties; and
- Candidates in elections for Federal, State and Territory Parliaments and local government authorities;
and those acting on their behalf, to have access to IPND information to conduct research regarding an electoral matter.
It is intended that political polling by, or on behalf of, a registered political party, a political representative or a candidate in an election for a Parliament or local government authority, will fall within this category of research.
This category of research is intended to permit access to IPND information in order to conduct research regarding an electoral matter. Research of this kind does not involve contacting persons to conduct sales, promotional or fundraising activities or to impart information to, rather than collect information from, persons.
Paragraph 4(c)
Paragraph 4(c) specifies research conducted by or on behalf of the Commonwealth, a Commonwealth authority or a prescribed FMA agency which will contribute to the development of public policy.
The instrument defines a Commonwealth authority as having the meaning given by section 7 of the Commonwealth Authorities and Companies Act 1997. Commonwealth authorities are bodies corporate incorporated for a public purpose by a Commonwealth Act that hold money on their own account and other bodies corporate incorporated for a public purpose that hold money on their own account that are prescribed by the Commonwealth Authorities and Companies Regulations 1997. They do not include Corporations Act companies, Aboriginal associations or associations of employees that are organisations under the Workplace Relations Act 1996.
The instrument defines a prescribed FMA agency as meaning a body, organisation or group mentioned in Schedule 1 of the Financial Management and Accountability Regulations 1997.
Specifying this kind of research is intended to enable the Commonwealth, including Commonwealth authorities and prescribed FMA agencies, and those acting on their behalf, to access IPND information for the purpose of conducting research, if the research will contribute to the development of public policy. Research of this kind does not involve contacting persons to conduct sales, promotional or fundraising activities or to impart information to, rather than collect information from, persons.