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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS AMENDMENT (INTEGRATED PUBLIC NUMBER DATABASE) BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
TELECOMMUNICATIONS AMENDMENT (INTEGRATED PUBLIC NUMBER DATABASE) BILL 2009
OUTLINE
The Telecommunications Amendment (Integrated Public Number Database) Bill
2009 amends the Telecommunications Act 1997 (Telecommunications Act) to
allow information contained in the Integrated Public Number Database (IPND)
to be disclosed and used in connection with the provision of telephony-
based emergency warnings, and for the supply of Location Dependent Carriage
Services (LDCSs).
The IPND is an industry-wide database of all residential and business phone
numbers (both listed and unlisted) and associated subscriber information,
including name and address information. The IPND was established and is
maintained by Telstra as a condition of its carrier licence. All carriage
service providers who supply carriage services to subscribers who have
public numbers are obliged to provide to Telstra such information as it
reasonably requires in connection with the fulfilment of its obligation to
maintain the IPND.
Under its carrier licence conditions, Telstra is required to ensure that
the IPND contains certain information about each telephone subscriber,
including their name and address and whether the number is used for
business, government, charitable or private purposes.
Section 276 of the Telecommunications Act effectively prohibits the
disclosure or use of information released from the IPND in connection with
the delivery of telecommunications services by carriers, carriage service
providers or their contractors. However, a number of exceptions are
specified in the legislation which allow disclosure for a number of
reasons, including for the delivery of telecommunications services, the
publishing of public number directories, emergency call purposes, and law
enforcement purposes.
Emergency Warning System amendments
Under the Bill, Section 276 of the Telecommunications Act will be amended
to allow data contained in the IPND to be disclosed to authorised persons
to enable the provision of government initiated telephony-based emergency
warnings.
The States and Territories have primary responsibility for emergency
response measures. Arrangements for authorising and issuing warnings vary
considerably between jurisdictions. Accordingly, the amendments will
provide the Attorney-General, as the Minister with portfolio responsibility
for emergency management issues, with powers to specify, by legislative
instrument, who can use IPND information in the event of an emergency or
disaster. This is likely to be primarily State and Territory Government
officials, however, there is the flexibility for the Attorney to authorise
other persons.
The Bill is drafted so that it allows for States and Territories to develop
and operate jointly data management and emergency warning systems.
The amendments permit IPND information to be disclosed in the event of an
emergency, or when an emergency is considered likely, according to the
definition of emergency law as defined by the Minister with responsibility
for emergency management. The term 'emergency law' will be defined through
a legislative instrument which is likely to mirror or reference existing
state and territory emergency laws.
Information obtained from the IPND may only be used for the purpose of
providing warnings about specific emergency events. It is anticipated that
these messages will generally be recorded voice messages providing
appropriate advice to telephone subscribers about the nature of the
emergency and any recommended actions.
Under the amendments, there is a requirement that reasonable steps be taken
to ensure that the use or disclosure of IPND information does not adversely
affect the normal operations of the telecommunications network. For
instance, telephone subscribers in the geographic area affected must still
be able to make outbound calls, especially to 000, while an emergency
warning is being transmitted.
Division 3B contains a number of privacy protection provisions which are
intended to ensure that subscriber data obtained from the IPND is not used
or disclosed for any other purpose than to provide telephone-based
emergency warnings in specific instances (including testing of systems to
provide such warnings).
It will be an offence for an emergency management person to use or disclose
any IPND information for any purpose not directly connected with the
provision of telephone-based emergency warnings. Under the amendments an
emergency management person will be permitted to use IPND information for
the purpose of reasonable testing of whether, in the event of an emergency
occurring, persons would be able to be alerted to that emergency.
Emergency management persons may either task their own agencies with
issuing an emergency warning, or may delegate this task to a third party.
In the event the task is delegated, it will also be an offence for the
party to whom the task has been delegated to use or disclose any IPND
information obtained for any purpose not directly connected with the
provision of telephone-based emergency warnings.
In recognition of the sensitive personal information contained in the IPND
and that both listed and unlisted numbers will be released, there are
penalties of up to two years imprisonment for mis-use of the IPND data.
The amendments also contain accountability measures including a reporting
requirement for any emergency management person who activates a telephony-
based emergency warning. Emergency management persons will be required to
report each disclosure of IPND information to the Minister administering
the Administrative Decisions (Judicial Review) Act 1977 and the Australian
Communications and Media Authority (ACMA) as soon as practicable after each
disclosure occurs.
Details of these reports will include the nature and location of the
emergency, the number of telephone numbers that were disclosed, the date
when the disclosure occurred, and the number of persons to whom the
information was disclosed and for what reason. The intention of these
reporting requirements is to allow for any mis-use of IPND information by
any person to be identified as soon as possible.
Emergency management persons will also be required to report annually to
ACMA and to the Office of the Privacy Commissioner on each disclosure. The
reports will include a description of the emergency, date and location, the
volume of subscriber numbers disclosed and to whom for the purpose of
issuing emergency warnings. This provision is similar to the current
requirement in the Telecommunications Act for disclosures of IPND data, for
example, in relation to law enforcement activities, to be reported on.
Location Dependent Carriage Service amendments
A Location Dependent Carriage Service (LDCS) is a carriage service that
depends for its provision on the availability of information about the
geographic location of the caller in order to route the call to a
particular destination, normally the closest destination to the caller.
Examples of these types of services include pizza delivery services and
taxi services. They are generally services provided using 13 or 1300
numbers.
Generally, a carriage service provider (CSP) will only hold information
about callers who are its own subscribers. The IPND provides access to the
phone numbers and addresses of subscribers on all networks, thereby
allowing a CSP providing an LDCS to route the call to the premises of the
business nearest the location of the caller, regardless of whether or not
that caller is one of its own subscribers.
In the provision of LDCS, location information from the IPND is geo-coded
in order to allow the telephone number to be located geographically. The
IPND and geo-code data is stored in a routing table, allowing providers to
automatically route calls from these numbers to the relevant business
premises closest to the location of the caller.
Current arrangements for callers with unlisted numbers, including silent
numbers and mobiles will continue under the amendments. Calls to LDCS
numbers from these subscribers are directed to an operator, who enquires
about the caller's location and manually routes the call to the nearest
relevant business.
Currently, the Telecommunications Act only permits access to the IPND for
the provision of LDCSs by carriers and CSPs, and only where the IPND
information relates to a current or former subscriber of that carrier or
CSP. In effect, this means that use of the IPND to provide a LDCS on a
large scale (i.e. to all subscribers) is not possible under the current
arrangements.
The Bill seeks to clarify existing legislation to explicitly permit access
to IPND data for the purpose of providing LDCSs. The Bill will insert a new
section 291A after section 291 of the Telecommunications Act to allow
disclosure of IPND data relating to listed telephone numbers (that is, not
unlisted or silent numbers, or mobile numbers unless they have been
included in the public number directory at the subscriber's request).
The disclosure will also be limited to only that information necessary to
provide LDCSs. This typically consists of, but is not limited to, street
addresses, telephone numbers and the name of the subscriber's CSP. The
intention is to allow for the effective provision of LDCSs while not
allowing any information which is not required to be released from the
IPND.
The amendments will also extend the existing secondary disclosure
provisions in Part 13 of the Telecommunications Act to prohibit the use or
disclosure of IPND data obtained for the purpose of providing LDCSs, except
for the purposes permitted under the Act. The prohibition against
secondary disclosure will apply to either the carrier or CSP which
initially requested the data and to any other party who may receive the
information. The new secondary disclosure prohibition will prohibit
disclosure of information received from the IPND as well as information
contained in any routing table developed in order to provide an LDCS.
FINANCIAL IMPACT STATEMENT
The Bill is not expected to have any financial impact on Commonwealth
expenditure or revenue.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has advised that a Regulation Impact
Statement is not required for the amendments to the Telecommunications Act
1997 to allow information contained in the IPND to be disclosed and used in
connection with the provision of telephony-based emergency warnings, and
for the supply of Location Dependent Carriage Services (LDCSs).
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 sets out how the Act is to be cited, that is, the
Telecommunications Amendment (Integrated Public Number Database) Act 2009.
Clause 2 - Commencement
Clause 2 provides that the Act commences on the day after it receives the
Royal Assent.
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule is amended
or repealed as set out in that Schedule.
Schedule 1 - Amendments to the Telecommunications Act 1997
Part 1 - Data for Emergency Warnings Amendments
Item 1 - At the end of Division 1 of Part 13
New subsection 275B(1) inserts a definition for 'emergency management
person' by reference to new subsection 275B(2).
New subsection 275B(2) provides that the Minister administering the
Administrative Decisions (Judicial Review) Act 1977 may, by legislative
instrument specify an office or a position for the purpose of the
definition of 'emergency management person' in new subsection 275B(1).
This power has been given to the Minister administering the Administrative
Decisions (Judicial Review) Act 1977 on the basis that this Minister, being
the Attorney-General, currently has portfolio responsibility for emergency
management issues. The emergency management person has powers and
responsibilities in connection with alerting persons to a likely or actual
emergency and for the reasonable testing of such alerts.
New subsection 275B(5) provides that before making an instrument under
subsection 275B(2) the Minister administering the Administrative Decisions
(Judicial Review) Act 1977 must consult with the Minister administering the
Telecommunications Act 1997. This consultation provision has been included
given the close relationship between emergency management issues and
telecommunications issues arising from the ability of specified emergency
management persons to access information originally sourced from the
integrated public number database.
New subsection 275C inserts a definition for 'emergency'. It means an
emergency is an emergency or disaster (however described) within the
meaning of an 'emergency law'.
New subsection 275D inserts a definition for 'emergency law' by reference
to new subsection 275D(2).
New subsection 275D(2) provides that the Minister administering the
Administrative Decisions (Judicial Review) Act 1977 may, by legislative
instrument specify a law of a State or a Territory for the purposes of the
definition of emergency law. For a law to be considered as an 'emergency
law' within the meaning of Part 13 of the Telecommunications Act, there
must be an existing State or Territory law in relation to such an emergency
and that existing State or Territory law must be specified by the Minister
administering the Administrative Decisions (Judicial Review) Act 1977 in a
legislative instrument under new subsection 275D(2). This power has been
given to the Minister administering the Administrative Decisions (Judicial
Review) Act 1977 on the basis that this Minister, being the Attorney-
General, currently has portfolio responsibility for emergency management
issues.
New section 275E provides a definition for 'relevant information' by
reference to the additional exception to the primary use and disclosure
offence provisions set out in sections 276 and 277 of the
Telecommunications Act described in new section 285A
Item 2 - after section 285
New subsection 285A(1) provides an additional exception to the primary use
and disclosure offence provisions set out in sections 276 and 277 of the
Telecommunications Act. New subsection 285A(1) provides that disclosure is
not prohibited under sections 276 and 277 if the information or document
consists of information from the integrated public number database, the
disclosure is made to an emergency management person and the disclosure is
made for the purpose of the information or contents of documents being used
and disclosed for the purpose of for alerting persons to to an emergency or
likely emergency or the reasonable testing of such alerts. This exception
to the primary disclosure and use offence provisions has been included to
facilitate the access by specified emergency management persons to
information originally sourced from the integrated public number database.
New subsection 285A(2) contains a definition for integrated public number
database for the purpose of new section 285A.
Item 3 - After Division 3A of Part 13
New subsections 295V(1) and (2) describe the circumstances in which an
emergency management person may use or disclose relevant information, being
for alerting persons to likely or actual emergencies.
New subsection 295V(3) describes the circumstances in which an emergency
management person may use or disclose relevant information for the
reasonable testing of alerts for likely or actual emergencies.
New subsection 295V(4) describes the circumstances in which an emergency
management person may disclose relevant information to another person where
the information will be later used or disclosed for a purpose connected
with alerting persons to likely or actual emergencies. This would permit
an emergency management person to disclose information from the integrated
public number database to a person such as a contractor of systems or
services to provide alerts for likely or actual emergencies.
New subsections 295W(1) and (2) describe the circumstances in which a
person, to whom an emergency management person has disclosed relevant
information, may use or disclose that information, being for alerting
persons to likely or actual emergencies and for the reasonable testing of
such alerts.
New subsection 295W(3) describes the circumstances in which a person, to
whom information has been disclosed by an emergency management person, may
use or disclose the information for a purpose connected with alerting
persons to likely or actual emergencies.
New section 295X provides that a person using or disclosing information as
provided by section 295X must take reasonable steps to ensure the use and
disclosure does not adversely effect the operation of a telecommunications
network.
New section 295Y confirms that disclosure of relevant information to a
coronial inquiry, or to another inquiry specified by the Minister
administering the Administrative Decisions (Judicial Review) Act 1977 by
legislative instrument, is permitted where the disclosure is in relation to
an emergency or likely emergency.
New section 295Z provides that an emergency management person commits an
offence with a maximum penalty of two years imprisonment if they access
relevant information and that access is not permitted by section 295V.
New subsections 295ZA(1) and 295ZA(2) provide that it is an offence for an
person to whom an emergency management person has disclosed information as
permitted by subsection 295V(1) and (2) and 295W(1) and that person uses
or discloses information not for the purposes expressly set out in those
subsections respectively.
New subsection 295ZA(3) provides that it is an offence for an person to
whom an emergency management person has disclosed information as permitted
by subsections 295V(4) and 295W(3) and that person uses or discloses
information not for the purposes expressly set out in those subsections
respectively.
New subsection 295ZB(1) provides that each time an emergency management
person discloses relevant information they must give a written report to
the Minister administering the Administrative Decisions (Judicial Review)
Act 1977 and the Australian Communications and Media Authority (ACMA) which
complies with the requirements set out in subparagraphs (a), (b) and (c) of
that subsection.
New subsection 295ZB(2) provides that the aforementioned report must be
provided to the Minister administering the Administrative Decisions
(Judicial Review) Act 1977 and the ACMA as soon as practicable after the
access occurs.
New section 295ZC provides that an emergency management person who
discloses relevant information during a financial year must, within two
months of the end of that financial year, give a written report to the ACMA
and the Privacy Commissioner that meets the requirements set out in
subparagraphs (a), (b) and (c) of that section.
New subsection 295ZD(1) provides that the Minister administering the
Administrative Decisions (Judicial Review) Act may make arrangements with a
Minister of a State or Territory with respect to the performance of
functions or duties, or the exercise of powers, by an emergency management
person.
New subsection 295ZD(2) confirms that an instrument by which an arrangement
is made under subsection 295ZD is not a legislative instrument. This
provision is included to assist the reader.
New section 295ZE is an immunity provision, which aims to protect the
Commonwealth from any action, suit or proceeding against it in relation to
loss, damage or injury as a result of the use or disclosure of relevant
information. Subparagraphs (a) and (b) indicate the circumstances under
which the immunity is applicable. The immunity is included for two
reasons. Firstly, the Commonwealth will not be in a position to ensure
that the relevant information is accurate given that that information will
be originally sourced from the integrated public number database, which is
not Commonwealth managed. Secondly, the Commonwealth will not be
responsible for the manner in which relevant information is disclosed and
utilised given that this role may be exercised by State and Territory
emergency management persons.
Item 4 - Subparagraph 306(1)(b)(i)
'285A' is inserted after '285' in subparagraph 306(1)(b)(i) of the Act.
This has the effect of exempting disclosures made pursuant to section 285A
from the record keeping requirements set out in section 306 of the Act.
Part 2 - Location Dependant Carriage Service Amendments
Item 5 - After section 291
New subsections 291A(1) and 291A(2) provide additional exceptions to the
primary use and disclosure offence provisions set out in sections 276 and
277 of the Telecommunications Act to expressly permit disclosure and use of
information or documents relating to the integrated public number database
(excluding information relating to unlisted telephone numbers) for the
purpose of providing location dependant services.
New subsection 291A(1) provides that disclosure by a person is not
prohibited under sections 276 and 277 if the information or document
relates to information from the integrated public number database
(excluding information relating to an unlisted telephone number), the
disclosure is made to a CSP and the disclosure is made for a purpose of, or
is connected with, the supply, or proposed supply, by a person of a
location dependant carriage service.
New subsection 291A(2) provides that disclosure and use by a carrier or CSP
is not prohibited under sections 276 and 277 if the information or document
relates to information (excluding information relating to an unlisted
telephone number) contained in an integrated public number database and the
disclosure or use is made for a purpose of, or is connected with, the
supply, or proposed supply, by a person of a location dependent carriage
service.
Information relating to unlisted telephone numbers is specifically excluded
from the permitted disclosure provisions in subsections 291A(1) and 291A(2)
to protect the privacy of all persons with unlisted telephone numbers.
New subsection 291A(3) provides a definition of integrated public number
database for the purpose of section 291A.
Item 6 - After section 302
New subsection 302A(1) provides that if a disclosure is made to a person in
accordance with subsection 291A, that person must not disclose or use that
information or document, except for the purpose of, or in connection with,
the supply, or proposed supply, by a person of a location dependent
carriage service.
New subsection 302A(2) provides a definition for 'location dependant
carriage service' for the purpose of section 302A.
Item 7 - Subparagraph 306(1)(b)(i)
'291 or 291A' is substituted in place of '291' under subparagraph
306(1)(b)(i). This has the effect of exempting disclosures made pursuant
to section 291A from the record keeping requirements set out in section 306
of the Act.