EXPLANATORY STATEMENT
TELECOMMUNICATIONS (INTEGRATED PUBLIC NUMBER
DATABASE SCHEME – CRITERIA FOR DECIDINGAUTHORISATION APPLICATIONS) 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 Scheme – Criteria for Deciding Authorisation Applications) Instrument 2007 (No. 1) (the Instrument) specifies the criteria the Australian Communications and Media Authority (ACMA) must apply when deciding applications for authorisations for access to personal information contained in the Integrated Public Number Database (IPND), which may be granted 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 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 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 that 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 section 295N of the Telecommunications Act, which will be inserted by item 9 of Schedule 1 to the IPND Act.
Proposed subsection 295N(1) provides that the Minister must, by legislative instrument, specify criteria for deciding authorisation applications made under the IPND scheme.
Proposed subsection 295N(2) permits the Minister to specify different criteria for different kinds of authorisation applications.
Proposed subsection 295N(3) provides that, in deciding an authorisation application, ACMA must apply the criteria applicable to the application; and may have regard to any other matters that it thinks are relevant.
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 Instrument is the Telecommunications (Integrated Public Number Database Scheme – Criteria for Deciding Authorisation Applications) 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 defines the terms and concepts used in the Instrument.
The key definition is that of ‘customer data’. This definition references the definition contained in the IPND scheme. The definition in the IPND scheme defines what IPND information holders of authorisations will have access to under the IPND scheme. While there are similar definitions in C555:2007 Integrated Public Number Database (IPND) Industry Code and G619:2005 Industry Guideline IPND Data, the definition of ‘customer data’ in the IPND scheme will prevail to extent of any inconsistencies.
Clause 4 – Criteria for Deciding Applications from Public Number Directory Publishers
The application process will enable ACMA to scrutinise persons seeking access to IPND information and the way in which IPND information is proposed to be disclosed and used. Scrutiny by ACMA is intended as a safeguard for preventing inappropriate use of IPND information by public number directory publishers.
The criteria for public number directory publishers is intended to enable ACMA to assure itself that IPND information will be used for the purpose set out in the Telecommunications Act, and that applicants, if granted an authorisation, will comply with the Act and any legislative instruments, including the IPND scheme and conditions of authorisation.
Paragraph 4(1)(a) requires ACMA to be reasonably satisfied that the applicant’s proposed public number directory meets the requirements of the proposed definition of public number directory to be inserted by item 6 of Schedule 1 to the IPND Act.
Paragraph 4(1)(b) requires that the applicant, if granted an authorisation, will use IPND information for the authorised purpose, that is, for the publication and maintenance of a public number directory.
Paragraph 4(1)(c) requires ACMA to be reasonably satisfied that the applicant, if granted an authorisation, will comply with the requirements of the Act, as modified by any legislative instrument, and the IPND scheme.
Paragraph 4(1)(d) requires ACMA, when deciding the application, to consider any processes the applicant has in place, or intends to put in place, to protect the privacy and security of the IPND information.
Subclause 4(2) requires ACMA, when assessing an application against criteria in paragraphs 4(1)(b) and 4(1)(c), to take into account an applicant’s past compliance with the Act in relation to any previous use of IPND information. Alternatively, if the applicant does not have a track record of previous IPND data use and compliance, then ACMA may consider whether the applicant has appropriate processes in place that will enable the applicant, and any contractor, to comply with the requirements of the Act, as modified by any legislative instrument, and the IPND scheme in relation to its future use of IPND information.
Use of the term ‘reasonably satisfied’ throughout the criteria recognises that it will never be possible for ACMA to be absolutely satisfied of these things.
Clause 5 – Criteria for Deciding Applications from Researchers
Subclauses 5(1) and 5(2)
Subclauses 5(1) and 5(2) generally mirror those above for public number directory publishers, with some exceptions. Where the clauses mirror each other the rationale is also the same.
The key difference is that paragraph 5(1)(a) requires ACMA to be reasonably satisfied that the proposed research is of a kind specified in the Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2007 (No. 1).
The Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2007 (No. 1) specifies three kinds of permitted research:
(a) research, or the compilation or analysis of statistics, relevant to public health, including epidemiological research;
(b) research regarding an electoral matter conducted by a registered political party, a political representative, a candidate in an election for a Parliament or a local government authority or a person on behalf of such a party, representative or candidate; and
(c) 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;
where the research is not conducted for a commercial purpose.
Research conducted under any of these specified research purposes must not be conducted for a primarily commercial purpose. An additional criterion is therefore included in paragraph 5(1)(b) requiring ACMA to be reasonably satisfied that the proposed research will not be conducted for a primarily commercial purpose.
In relation to research regarding an electoral matter and research which will contribute to the development of public policy, the instrument is very specific about which persons may conduct such research.
Clause 5, therefore, contains two additional subclauses.
Subclause 5(3)
Subclause 5(3) requires ACMA, before granting an authorisation, to be reasonably satisfied that an applicant applying to conduct research regarding an electoral matter is a registered political party, a political representative, a candidate in an election for a Parliament or local government authority or is a person acting on behalf of such a party, representative or candidate.
Subclause 5(4)
Paragraph 5(4)(a) requires ACMA, before granting an authorisation, to be reasonably satisfied that an applicant applying to conduct research to assist the development of public policy is the Commonwealth, a Commonwealth authority or a prescribed FMA agency, or a person acting on behalf of the Commonwealth, Commonwealth authority or prescribed FMA agency.
Paragraph 5(4)(b) requires ACMA, before granting an authorisation for research which will contribute to the development of public policy, to be reasonably satisfied that the applicant has demonstrated that the research will contribute to the development of public policy.
Use of the term ‘reasonably satisfied’ throughout the criteria recognises that it will never be possible for ACMA to be absolutely satisfied of these things.