EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Telecommunications Act 1997
Telecommunications (Section of the Telecommunications Industry – Public Number Directory Publishers) Determination 2017
Authority
The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Section of the Telecommunications Industry – Public Number Directory Publishers) Determination 2017 (the determination) under subsection 110(3) of the Telecommunications Act 1997 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
Subsection 110(3) of the Act provides that the ACMA can determine that persons undertaking a specified ‘telecommunications activity’ are a ‘section of the telecommunications industry’. Participation in a section of the telecommunications industry is a key concept in relation to the development and application of industry codes and standards under Part 6 of the Act.
Subsection 33(3) of the AIA provides that where an Act confers a power to make a legislative instrument, the power shall be construed to include a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
Purpose and operation of the determination
Part 6 of the Act establishes a scheme whereby:
- bodies representing ‘sections of the telecommunications industry’ may develop industry codes;
- the ACMA may register these codes; and
- the ACMA may direct participants in sections of the telecommunications industry to comply with such codes.
Subsection 110(3) of the Act provides that the ACMA may, by written instrument, make determinations that persons carrying on specified kinds of telecommunications activities constitute a section of the telecommunications industry.
Section 109 of the Act identifies those activities that are telecommunications activities. Paragraph 109(c) identifies ‘supplying goods or services for use in connection with the supply of a listed carriage service’ as one such telecommunications activity.
The purpose of the determination is to identify public number directory publishers as a section of the telecommunications industry. The determination provides that public number directory publishers are persons undertaking the telecommunications activity of publishing and maintaining a ‘public number directory’, as defined in subsection 285(2) of the Act.
The result is that existing industry codes relating to public number directory publishers will continue to apply to that section of the industry, and to allow for bodies representing that section of the telecommunications industry to develop other industry codes, should they wish to do so.
The ACMA has made the determination because the Telecommunications (Section of the Telecommunications Industry) Determination 2007 (the 2007 determination) was due to ‘sunset’ (i.e. be automatically repealed) on 1 October 2017, by operation of Part 6 of the Legislation Act 2003 (the LA). Following review and consultation, the ACMA formed the view that the 2007 determination was operating effectively and efficiently, and continued to form a necessary and useful part of the legislative framework. To preserve the effect of the 2007 determination, the ACMA has therefore repealed the 2007 determination before its sunset date and remade it with minor changes as the determination.
A provision-by-provision description of the determination is set out in the notes at Attachment A.
The determination is a legislative instrument for the purposes of the LA.
Further information about the legislative framework applicable to public number directory publishers is set out below.
Background - public number directories and publishers
The Integrated Public Number Database (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).
Section 285 of the Act 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;
(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 Integrated Public Number Database Scheme 2017 (the IPND Scheme), a legislative instrument made under section 295A of the Act, establishes a scheme for authorising persons to access IPND information for those purposes, including by public number directory publishers.
At the time of making the determination, there are also two industry codes that apply to public number directory publishers.
The Integrated Public Number Database (IPND) Industry Code (C555:2008) (the IPND Code) sets out the rights and obligations of Data Providers, Data Users and the IPND Manager regarding the access, input, use, disclosure, and storage, of public number directory data in the IPND. At the time of making the determination, Communications Alliance (the body that developed the IPND Code) is reviewing the IPND Code, in light of the making of the IPND Scheme in 2017.
Public number directory publishers are also subject to requirements under the Emergency Call Services Requirements Code (C536:2011) (the ECSR Code). The ECSR Code places obligations on public number directory publishers to publish information about emergency numbers in their printed directories.
Documents incorporated by reference
The determination incorporates definitions from the Act and the IPND Scheme by reference, as they are in force from time to time. Section 14 of the LA allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time.
The Act and the IPND Scheme are available, free of charge, at www.legislation.gov.au.
Consultation
Section 17 of the LA requires that, before making a legislative instrument, the ACMA must be satisfied that any consultation it considers to be appropriate, and that it is reasonably practicable to undertake, has been undertaken.
Before making the determination, the ACMA published a consultation paper and a draft of the determination on its website on 18 August 2017, inviting public comment. The ACMA also wrote to public number directory publishers, Communications Alliance, and members of its Emergency Call Service Advisory Committee about the proposal. One submission was received by the closing date of 8 September 2017. The submission supported the proposal to make the determination.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR) has considered the matter and formed an opinion that the impact of the determination is minor or machinery in nature and, on that basis, a Regulatory Impact Statement is not required. The OBPR reference number is ID 22361.
Statement of compatibility with human rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.
The statement of compatibility set out below has been prepared to meet that requirement.
Overview of the instrument
The determination has the effect that public number directory publishers are participants in the telecommunications industry, allowing them to be covered by industry codes under Part 6 of the Act; and ensuring that relevant existing industry codes continue to apply.
Human rights implications
The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.
Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Attachment A
NOTES ON SECTIONS
Section 1 - Name
This section provides for the determination to be cited as the Telecommunications (Section of the Telecommunications Industry – Public Number Directory Publishers) Determination 2017.
Section 2 - Commencement
This section provides that the determination commences at the start of the day after it is registered on the Federal Register of Legislation.
Section 3 – Authority
This section identifies the provision that authorises the making of the determination, namely subsection 110(3) of the Act.
Section 4 – Repeal of the Telecommunications (Section of the Telecommunications Industry) Determination 2007
This section repeals the Telecommunications (Section of the Telecommunications Industry) Determination 2007 (F2007L01242).
Section 5 – Definitions
This section provides definitions used in the determination. Public number directory has the meaning given by subsection 285(2) of the Act, and public number directory publisher has the same meaning as in the IPND Scheme. Under the IPND Scheme, a public number directory publisher is the holder of an authorisation to access IPND information, granted by the ACMA.
Section 6 – Application of Determination
This section provides that the determination applies to public number directory publishers.
Section 7 – Specification of telecommunications activity
This section provides that the telecommunications activity covered by the determination is the publication and maintenance of a public number directory.
Section 8 – Section of the telecommunications industry
This section 8 provides that persons engaging in the activity mentioned in section 7 are a section of the telecommunications industry to be identified as ‘public number directory publishers’.