EXPLANATORY STATEMENT
TELECOMMUNICATIONS (INTEGRATED PUBLIC NUMBER DATABASE – PUBLIC NUMBER DIRECTORY ADDITIONAL INFORMATION) 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 – Public Number Directory Additional Information) Instrument 2007 (No. 1) (the Instrument) modifies the proposed definition of public number directory to be inserted in the Telecommunications Act 1997 (the Telecommunications Act) by item 6 of Schedule 1 to the Telecommunications (Integrated Public Number Database) Act 2006 (the IPND Act), by specifying additional information in relation to a qualifying entity which may be included in a public number directory. It is proposed that Schedule 1 to the IPND Act will be proclaimed to commence on 15 May 2007.
The Australian Communications and Media Authority (ACMA) will assess whether a directory product meets the definition of public number directory to be contained in subsection 285(2) of the Telecommunications Act, as modified by this instrument, when considering applications for access to the information in the Integrated Public Number Database (IPND) for the purpose of publishing and maintaining public number directory under the IPND scheme.
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.
Proposed section 295A of the Telecommunications Act, to be inserted by item 9 of Schedule 1 to 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 Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2007 (No. 1)), 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 IPND Act. 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(4) of the Telecommunications Act (see items 6 and 8 of Schedule 1 to the IPND Act.
Item 6 of Schedule 1 will insert a definition of ‘public number directory’ into the Telecommunications Act. Subparagraph (c)(i) of the definition provides that a public number directory is a record that, in relation to a person or body that is a qualifying entity (a term that is separately defined – see item 7 of Schedule 1), contains no other information about the person or body apart from information that is of a kind specified in a legislative instrument under subsection 285(4).
Proposed subsection 285(4) empowers the Minister, by legislative instrument, to specify kinds of information for the purposes of subparagraph (c)(i) of the definition of public number directory in subsection 285(2). The Minister may specify different kinds of information in relation to different kinds of qualifying entities.
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 – Public Number Directory Additional Information) 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 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
Subclause 4(1)
Subclause 4(1) provides that if a ‘qualifying entity’ and a public number directory producer agree orally or in writing, a public number directory may contain additional information about the qualifying entity. Item 7 of Schedule 1 to the IPND Act, which will insert a new definition of ‘qualifying entity’ in subsection 285(2) of the Telecommunications Act, defines a qualifying entity as:
‘…(a) a person or body carrying on a business; or
(b) a charity or charitable institution; or
(c) an educational institution; or
(d) a religious organisation; or
(e) a department of the Commonwealth, a State or a Territory; or
(f) an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or
(g) any other person or body of a kind specified in an instrument under subsection (6)…’
The definition of public number directory to be inserted in the Telecommunications Act by item 6 of Schedule 1 to the IPND Act states that public number directories may only contain the name, public number and, optionally, address of a person or body. While this has the effect of protecting the privacy of individuals, it also excludes additional information, such as email addresses, opening hours and business category, for businesses and other entities from being included in a public number directory. The intent of this legislative instrument is to ensure that such additional information can be included in a public number directory.
Allowing additional information about qualifying entities to be included in a public number directory reflects current industry practice and provides public number directory publishers the flexibility to determine the content of their directories. The intention is also to give the entities themselves control over what information is included about them in a directory by requiring public number directory publishers to obtain their prior consent to the inclusion and publication of that information.
Subclause 4(2)
Subclause 4(2) requires that, where there is an oral agreement between a public number directory publisher and a qualifying entity, the public number directory publisher must create and keep a record of the agreement for a minimum period of two years. The retention period may be longer if the Telecommunications Act is amended, or regulations are made under that Act, specifying a longer period.
The two-year period reflects the retention period for similar types of records contained in the Communications Alliance C546:2006 Customer Transfer code.
A record of an oral agreement could be in the form, for example, of a recording or a file note.