EXPLANATORY STATEMENT
TELECOMMUNICATIONS (INTEGRATED PUBLIC NUMBER DATABASE – PUBLIC NUMBER DIRECTORY REQUIREMENTS) 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 Requirements) Instrument 2007 (No. 1) (the Instrument) specifies requirements which must be satisfied if a directory product is to be considered a public number directory for the purposes of the proposed definition of that term in subsection 285(2) of the Telecommunications Act 1997 (the Telecommunications Act) as proposed to be amended by item 6 of Schedule 1 to the Telecommunications Amendment (Integrated Public Number Database) Act 2006 (the IPND Act). 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 proposed 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 a 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(5) of the Telecommunications Act, which allows the Minister, by legislative instrument, to specify requirements for the purposes of paragraph (e) of the proposed definition of public number directory in subsection 285(2) 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. Paragraph (e) of the definition provides that a public number directory is a record that satisfies each requirement specified in a legislative instrument under subsection 285(5). Item 8 will insert proposed subsection 285(5).
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 Requirements) 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 specifies requirements which must be satisfied if a directory product is to be characterised as a public number directory. These requirements are in addition to those specified in paragraphs (a) to (d) of the proposed definition of public number directory to be inserted in the Telecommunications Act by item 6 of Schedule 1 to the IPND Act. These requirements at clause 4 are based on suggested requirements contained in the United Kingdom Code of Practice on Telecommunications Directory Information Covering the Fair Processing of Personal Data.
Paragraph 4(a)
Paragraph 4(a) specifies that a public number directory must contain no fewer than 1000 entries. The purpose of this is to protect an individual’s privacy by ensuring that a public number directory cannot be produced that would easily allow a person looking through the directory to identify an individual by simply visually scanning through the directory until they found the entry they were looking for, or by searching by a number or an address. A directory covering a single postcode where there are only 60 people in the postcode (as is the case with some postcodes) would be easily searchable in this manner. It is considered that a minimum of 1000 entries would reduce the ability of a person to easily undertake this type of search.
Paragraph 4(b)
Paragraph 4(b) specifies that entries in a public number directory must not be disaggregated below postcode level. This provision has a similar rationale to paragraph 4(a) and they will work in conjunction. While paragraph 4(b) requires that public number directories must be produced at postcode level or above, if a directory based on a single postcode would contain fewer than 1000 entries then paragraph 4(a) will apply and the directory must therefore cover a sufficient number of postcodes for the number of entries in the directory to total 1000 or more.
Paragraph 4(c)
Paragraph 4(c) requires that a public number directory that is not a classified business directory must contain all listed numbers in the relevant geographical area that the directory covers (for example, all listed numbers in a postcode).
A classified business directory is defined in clause 3 to mean a public number directory that does not contain information about residential telephone subscribers unless a residential telephone subscriber has agreed with the public number directory publisher that information about the subscriber will be included in the directory (for example, where the public number of the residential telephone subscriber is also used for business purposes).
Listed number is defined in clause 3 to mean the public number that the customer of a carriage service provider and the provider have agreed to have included in a public number directory, as indicated by the List Code in the IPND.
The intention of paragraph 4(c) is to prevent a directory being produced that contains, for example, only debtors for debt collection purposes or only persons with a particular level of income for marketing purposes, and such a directory being considered a public number directory.
Paragraph 4(d)
Paragraph 4(d) requires that a public number directory that is not a classified business directory must be organised alphabetically by name, according to standard industry practice. The rationale for this is similar to that of paragraph 4(c) in that it will prevent public number directories being organised on the basis of other principles such as income level, consumer preferences or debtor status.
The reference to ‘standard industry practice’ is intended to deal with situations where standard industry practice means that some names are not listed in a strictly alphabetical fashion in a public number directory, for example, where names starting with ‘Mc’ or ‘Mac’ are listed at the front of the ‘M’ section of the directory.
Paragraphs 4(e), 4(f) and 4(g)
The intention of these requirements is to protect the integrity of information in public number directories by making it more difficult to undertake the large-scale, electronic removal of information from directories to produce databases that may be used for other purposes.
The policy rationale for the production and publication of public number directories is to enable the user of a standard telephone service to contact the user of another standard telephone service and to facilitate any-to-any connectivity.
Technology has evolved since 1997, when the existing regime permitting access to the IPND for the publication and maintenance of public number directories was developed, and now enables much greater manipulation of electronic information.
Scraping technologies enable the fast and easy removal of information from electronic directories for the compilation of secondary databases which may be used for purposes far removed from the original purpose for which the information was collected, and without the consent of the person listed in the directory, for example, for the compilation of population databases which are used to create consumer profiles and segments for marketing purposes.
Telecommunications customers provide their personal information to their telecommunications provider to enable the provider to connect the customer to, and bill them for, a telecommunications service. While customers may be aware that their personal information will be published in telephone directories, it is important to protect the integrity of personal information when it is published in this form so that it cannot be easily stripped out en masse and used for other purposes that they may not be aware of.
Previously, organisations wishing to compile their own databases from public number directories would have had to manually enter the information from print directories, a more expensive and time consuming, and therefore less attractive, process.
Paragraph 4(e) requires that no more than 20 entries may be transferred from an electronic public number directory in a single action. This includes electronically cutting and pasting of entries.
Paragraph 4(f) requires that no more than 100 entries may be generated from a single search of a public number directory that is in electronic form.
The requirements at paragraphs 4(e) and 4(f) are consistent with the current functionality of the White Pages® online directory for residential listings.
Paragraph 4(g) requires that a public number directory published in electronic form must be encrypted or otherwise electronically protected.