EXPLANATORY STATEMENT
Issued by the authority of Australian Communications and Media Authority
TELECOMMUNICATIONS (SECTION OF THE TELECOMMUNICATIONS INDUSTRY) DETERMINATION 2007
Legislative Basis
Part 6 of the Telecommunications Act 1997 (the Act) relates to the development of self-regulatory Industry codes which may be registered by ACMA and relate to a telecommunications activity as defined by section 109 of the Act. Industry Codes apply to sections of the telecommunications industry as defined in section 110 of the Act. In some circumstances, parties who undertake telecommunications activities may not be a section of the telecommunications industry. Subsection 110(3) specifies that: “ACMA may, by written instrument, determine that persons carrying on, or proposing to carry on, one or more specified kinds of telecommunications activity constitute a section of the telecommunications for the purposes of this Part (Part 6).”
In this case, the Telecommunications (Section of the Telecommunications Industry) Determination 2007 (the determination) applies to public number directory publishers who undertake the telecommunications activity of publishing and maintaining a public number directory as defined in subsection 285(2) of the Act.
Background
Part 13 of the Act imposes requirements on eligible persons (which includes a carrier, a carriage service provider, a telecommunications contractor or an employee of one of these) regarding the protection of communications.
Division 2 of Part 13 prohibits the disclosure or use of such information by an eligible person, and Division 3 of Part 13 contains various exceptions recognising that there are circumstances in which disclosure or use may be appropriate.
The IPND is an industry wide database of all listed and unlisted public telephone numbers. It was established in 1998 and is currently managed by Telstra under the Carrier Licence Conditions (Telstra Corporation Limited) Declaration 1997 (the Licence Conditions).
One of the exceptions, in subsection 285(1A) of the Act, deals directly with information contained in the integrated public number database (IPND) and specifies the circumstances when a disclosure will not be prohibited from this source. Specifically, section 285 provides for the disclosure of information or documents from the IPND for purposes connected with one of four activities. These are:
(i) the provision of directory assistance services by or on behalf of a carriage service provider;
(ii) the publication and maintenance of a public number directory (PND);
(iii) dealing with the matter or matters raised by a call to an emergency service number; or
(iv) the conduct of research of a kind specified in an instrument made (by the Minister) under subsection 285(3).
The Telecommunications Amendment (Integrated Public Number Database) Act 2006 (the Amendment) inserted subsection 285(1A) and received Royal Assent on 8 December 2006.
In addition to the Amendment and the IPND Scheme applying to publishers of public number directories, the former Australian Communications Authority (ACA) registered an Industry Code under Part 6 of the Act – ACIF C555:2002 Integrated Public Number Database (IPND) Industry Code (the IPND Code) detailing the operational and administrative requirements for the flow of information to and from the IPND.
Findings of investigations conducted by the ACA led it to believe that information from the IPND was being used in connection with purposes beyond those specified or contemplated by Part 13 of the Act. In the course of its investigations the ACA formed the opinion that consumers have a reasonable expectation that a certain level of protection will be afforded to their personal information, and that this was not being met.
The ACA identified that the source of some of these issues arose from the way in which definitions in the IPND Code were being interpreted. It was the ACA’s conclusion that the IPND Code was not operating to provide appropriate community safeguards. Using its standard making powers under Part 6 of the Act, the ACA commenced developing an industry standard to address the problems. In late 2006, ACMA decided not to determine an industry standard in light of the Amendment.
The IPND Code was reviewed as a consequence of the Amendment, and the Determination arises from the submission of C555:2007 the Integrated Public Number Database (IPND) Industry Code to ACMA for registration under section 117 of the Act.
Object
The Determination provides for public number directory publishers to be treated as a section of the telecommunications industry so that the revised IPND Code will apply to them in undertaking the telecommunications activity of publishing and maintaining a public number directory as defined in subsection 285(2) of the Act.
Consultation
The Communications Alliance released the IPND Code for public consultation from 12 December to 19 January 2006. The public consultation Code clearly indicated that the Code was intended to apply to public number directory publishers. In addition, Communications Alliance forwarded a copy of the code to the ACCC, TIO, CTN and the Federal Privacy Commissioner with a request to sign ACMA’s certificates of mandatory consultation. A certificate was signed by the ACCC, TIO, CTN and the Federal Privacy Commissioner. On 22 March 2007 the Office of the Federal Privacy Commissioner provided advice to ACMA that it is satisfied with the IPND Code. Representatives of public number directory publishers also participated in the Code committee on the understanding that ACMA would make the Determination.
Notes on the Subsections and Sections
Section 1 Name of Determination
Section 1 provides that the Determination is the Telecommunications (Section of the Telecommunications Industry) Determination 2007 (the Determination).
Section 2 Commencement
The Determination commences on the same day as Schedule 1 to the Telecommunications Amendment (Integrated Public Number Database) Act 2006 (the Amendment).
Section 3 Definitions
This section provides definitions for the Determination. For example the Act refers to the Telecommunications Act 1997 (the Act), a public number directory has the same meaning given by subsection 285 (2) of the Act and public number directory publisher has the same meaning as given in the Telecommunications Integrated Public Number Database Scheme 2007 (the Scheme).
Section 4 Application of Determination
This section provides that the Determination applies to public number directory publishers as described in the Scheme.
Section 5 Section of the telecommunications industry
This section describes that for subsection 110 (3) of the Act, public number directory publishers constitute a section of the industry, and therefore that the section of the industry is the public number directory publisher section of the telecommunications industry. The purpose of this is to ensure that public number directory publishers are covered by ACIF C555: 2007 The Integrated Public Number Database (IPND) Industry Code.
Section 6 Revocation of Telecommunications (Section of the Telecommunications Industry) Determination 1998
This section explains that the former determination, the Telecommunications (Section of the Telecommunications Industry) Determination 1998 is revoked so that this Determination can replace it.