Telecommunications Regulations 2021 [F2021l00289] [2021] AUPJCHR 57 (13 May 2021)

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1.29 Under the Telecommunications Act 1997, the Australian Communications and Media Authority (ACMA) and the minister may make a service provider determination.^[3] The service provider determination must relate to a matter specified in the regulations.^[4] Part 2 of the regulations specifies the matters in relation to which the ACMA may make a service provider determination, including in relation to the supply of prepaid mobile carriage services.^[5] These matters include:

1.30 To verify the identity of a customer, the service carriage provider may do any of the following:

1.31 It is noted that a service provider determination in relation to identity checks for prepaid mobile carriage services was made in 2017 and remains in force.^[9] This determination sets out the rules that apply to carriage service providers in relation to the supply of prepaid mobile carriage services, including rules and alternative methods for obtaining information and verifying the identity of customers, record keeping requirements and approved methods for verification of the identity of a customer who is a service activator.

Preliminary international human rights legal advice

Rights to privacy, freedom of expression and equality and non-discrimination

1.32 By authorising the collection, storage and use of personal information by service providers in relation to customers of prepaid mobile carriage services this measure engages and limits the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[10]

1.33 By preventing a customer from using a prepaid mobile carriage service in certain circumstances, including where a customer fails to verify their identity, the measure also engages and limits the right to freedom of expression. The right to freedom of expression includes the freedom to seek, receive and impart information and ideas of all kinds, including orally, in writing or through any other media of an individual's choice.^[11] The right protects all forms of expression and the means of their dissemination, including electronic and internet-based modes of expression.^[12] The United Nations (UN) Human Rights Committee has observed that internet and mobile based electronic information dissemination systems have substantially changed communication practices around the world.^[13] Noting that there is greater reliance on internet and mobile based electronic information dissemination systems, preventing certain customers from using a prepaid mobile carriage service would appear to have the effect of restricting access to a primary information dissemination system.

non-discrimination to the extent that it may have a disproportionate impact on certain persons or groups with protected attributes who experience difficulties in verifying their identity due to a lack of access to identity documents. Such persons may include Aboriginal and Torres Strait Islander peoples, particularly those who do not have a birth certificate and those living in remote communities; victims/survivors of domestic or family violence; people experiencing homelessness; recently released prisoners; people with disability; undocumented migrant workers; and refugees and asylum seekers.^[14] The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.^[15] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).^[16] The UN Human Rights Committee has explained indirect discrimination as 'a rule or measure that is neutral at face value or without intent to discriminate', which exclusively or disproportionately affects people with a particular protected attribute, for example race, national origin or disability.^[17] Noting that those persons who may experience difficulties in verifying their identity are likely to be persons with a particular protected attribute, such as race, national origin and/or disability, the measure could have a disproportionate impact on persons or groups with certain protected attributes. Where a measure impacts on a particular group disproportionately it establishes prima facie that there may be indirect discrimination.^[18] While the statement of compatibility acknowledges that the measure engages and limits the rights to privacy and freedom of expression, it does not address the possible implications of this measure for the right to equality and

non-discrimination. Accordingly, no assessment is provided as to the compatibility of the measure with this right.

1.35 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

Legitimate objective and rational connection

1.36 The statement of compatibility states that this measure, as well as the existing regulatory arrangements for prepaid mobile carriage services,^[19] seeks to inhibit the use of anonymous prepaid mobile services so that law enforcement and national security agencies can gain accurate information and evidence about customers of prepaid mobile services, should they need to do so for the purposes of their investigation.^[20] The statement of compatibility notes that the information that is required to be collected by service providers is the minimum amount of personal information that is reasonably necessary to assist with the objectives of law enforcement and national security.^[21] Regarding the requirement for customers to verify their identity to use prepaid mobile carriage services, the statement of compatibility states that this requirement is to assist law enforcement agencies to identify and apprehend individuals who do use, or attempt to use, telecommunications networks and facilities in, or in relation to, the commission of offences.^[22] The objectives of law enforcement and national security would likely constitute legitimate objectives for the purposes of international human rights law. Making the use of prepaid mobile carriage services conditional on a customer providing personal information to verify their identity and collecting a customer's personal information for that purpose would also appear to be rationally connected (that is, effective to achieve) to these objectives.

Proportionality

1.37 The key question is whether the limitation on rights is proportionate to the objectives being sought. In this respect, it is necessary to consider whether a proposed limitation is sufficiently circumscribed and accompanied by sufficient safeguards. Regarding the limitation on the right to privacy, the statement of compatibility notes that the information that may be required to be obtained from a customer is limited to the minimum amount of information that is reasonably necessary to identify a customer; information about the customer's existing carriage services; and information about the customer's proposed use of the prepaid mobile carriage service, for example, residential, business, government or charitable use.^[23] By specifying in the legislation the type of personal information that is authorised to be collected, used and stored, the precise circumstances in which interferences with privacy are permitted may be ascertained.^[24] This assists with the proportionality of the measure. The fact that only the minimum amount of information that is reasonably necessary to verify a customer's identity is required to be obtained by a service provider also assists with the proportionality of the measure as it ensures that any limitation on the right to privacy is only as extensive as is strictly necessary.

1.38 The statement of compatibility identifies a number of safeguards with respect to the right to privacy. It notes that service providers are required to destroy the information that is recorded if destruction is reasonable, including destruction when the information is no longer required by the service provider.^[25] The statement of compatibility states that this provision is to ensure that information is not retained when it is no longer required.^[26] It also identifies Australian Privacy Principle 4.2 as a safeguard, which requires organisations to take reasonable steps to destroy or permanently de-identify personal information if it is no longer needed.^[27] In addition, the statement of compatibility notes that Part 13 of the Telecommunications Act 1997 contains safeguards to protect personal information held by service providers, including certain record-keeping requirements and authorising use or disclosure of protected information only in limited circumstances, such as for the purposes of enforcement of the criminal law or assisting the ACMA to carry out its functions or powers.^[28]

1.39 These provisions, particularly the record keeping requirements and restrictions on the use and disclosure of protected information, appear to provide some protection of customers' right to privacy and assist with the proportionality of this measure.^[29] As such the limitation on the right to privacy would appear to be permissible for the purposes of international human rights law.

1.40 Regarding the limitation on the right to freedom of expression, the statement of compatibility states that preventing customers who do not verify their identity from using prepaid mobile carriage services is reasonable, necessary and proportionate to give effect to the law enforcement and national security objectives of the regulations.^[30] The statement of compatibility does not, however, identify any specific safeguards that accompany the measure to ensure that the limitation on the right to freedom of expression is proportionate.

1.41 The breadth and flexibility of the measure are relevant factors in assessing whether the limitation on the right to freedom of expression is proportionate. In this regard, the UN Human Rights Committee has noted that restrictions on the right to freedom of expression must not be overly broad.^[31] The provision that sets out the ways in which a service provider determination may specify how a customer's identity may be varied is drafted in relatively broad and non-exhaustive terms.^[32] This allows the determination to be made in a way that could provide the service provider with some flexibility as to how it verifies a customer's identity, for example, by collecting personal information from the customer or using the national Document Verification Service. In this regard, the measure would appear to contain some flexibility to allow the determination to treat different cases differently. For instance, if a customer did not have access to official identity documents, as a matter of statutory interpretation, it appears open for the determination to provide that the service provider may verify the customer's identity in an alternative way, such as by obtaining the minimum reasonably necessary information from the customer. Noting that certain customers with protected attributes may not have ready access to identity documents, this flexibility would likely assist with the proportionality of the measure. If the determination therefore allowed service providers to interpret and apply the measure in a broad and flexible manner, having regard to the individual circumstances of customers and the potential difficulties they may experience in obtaining evidence to verify their identity, the risk that the measure may impermissibly limit the rights to freedom of expression and equality and non-discrimination would be minimised.

1.42 However, based on the current service provider determination in relation to identity verification for customers of prepaid mobile carriage services,^[33] it appears that the measure will not necessarily be applied in a broad and flexible manner. Indeed, the current service provider determination requires service providers to verify the identity of a customer who is a purchaser by seeing specified documents, such as a licence, passport, birth certificate, Medicare card or credit or debit card; and to verify the identity of a customer who is a service activator by using an approved method of identity verification, including a government online verification service, an existing post-paid account or a visual identity document check.^[34] Vulnerable customers who do not have access to official identity documents, such as a licence, bank card or birth certificate, may experience difficulties in verifying their identity in accordance with the current approved methods for identity verification. As such, there appears to be some risk that, in practice, the measure may be applied in a prescriptive manner and could result in certain customers being prevented from using a prepaid mobile carriage service. Noting the greater reliance on internet and mobile based electronic information dissemination systems, if a customer were effectively prevented from accessing prepaid mobile carriage services, this may constitute a significant interference with a customer's right to freedom of expression. As such, there is a risk that the limitation on the rights to freedom of expression and equality and non-discrimination (to the extent that the measure may disproportionately impact persons with certain protected attributes), may not be proportionate. It is noted that the current service provider determination contains limited exceptions to the rules for identity verification for emergency and family violence-affected individuals.^[35] The proportionality of the measure may be assisted if these exceptions were extended to other vulnerable individuals who may have difficulty accessing identity documents, such as people experiencing homelessness or undocumented migrant workers.

Committee view

1.43 The committee notes that this measure sets out the matters in relation to which a service provider determination may be made with respect to a prepaid mobile carriage service. These matters include verifying a customer's identity; obtaining, recording and keeping personal information in relation to a customer; and preventing a customer using a prepaid mobile carriage service in certain circumstances, including failing to verify their identity.

1.44 The committee notes that the measure engages and limits the rights to privacy and freedom of expression by authorising the collection, use and storage of personal information and preventing a customer from using a mobile carriage service in certain circumstances. The committee notes that the measure may also engage and limit the right to equality and non-discrimination to the extent that the measure may have a disproportionate impact on persons or groups with certain protected attributes, such as race, national origin or disability, who may have difficulty in providing evidence to verify their identity. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.45 The committee considers that the measure pursues the legitimate objectives of law enforcement and national security. In relation to the right to privacy, the committee considers there are sufficient safeguards to adequately protect a customer's right to privacy. In relation to the rights to freedom of expression and equality and non-discrimination, the committee notes its concern that requiring all customers to provide documentary evidence verifying their identity may disproportionately impact on certain groups, such as those who may be homeless, experiencing domestic violence, Aboriginal or Torres Strait Islander peoples, undocumented migrant workers and refugees and asylum seekers. The committee notes that access to mobile phones is an essential requirement to accessing many services, including government services (and COVID-19 contact tracing). The committee notes its concern that if this requirement is applied inflexibly this may indirectly discriminate against certain customers with protected attributes and significantly interfere with their right to freedom of expression (if they are then unable to access a mobile phone).

1.46 The committee draws these human rights concerns to the attention of the minister and the Parliament.

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Telecommunications Regulations 2021 [F2021L00289], Report 6 of 2021; [2021] AUPJCHR 57.

[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

[3] Telecommunications Act 1997, subsections 99(1) and (1A). A service provider determination sets out the rules that apply to service providers in relation to the supply or either or both specified carriage services or specified content services.

[4] Telecommunications Act 1997, subsection 99(3).

[5] Part 2, section 7. A prepaid mobile carriage service is a public mobile telecommunications service used in connection with a number specified in the numbering plan for use in connection with the supply of carriage services to the public in Australia; and payment for the supply of the service must be made before the service is used, unless payment is not required for the initial supply of the service; and it is not a post-paid carriage service: Part 2, subsection 8(2).

[6] Telecommunications Act 1997, subsections 313(3) and (4): A law enforcement officer may make a written request to prevent a person from using a prepaid mobile carriage service if that action is necessary for the purposes of enforcing criminal law, imposing pecuniary penalties, assisting the enforcement of criminal laws in a foreign country, protecting public revenue or safeguarding national security. A service carriage provider must help police as is reasonably necessary for these specified purposes.

[7] Part 2, subsection 8(1).

[8] Part 2, subsection 8(1)(a)(i)–(iii).

[9] Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2017 [F2017L00399].

[10] International Covenant on Civil and Political Rights, article 17. Every person should be able to ascertain which public authorities or private individuals or bodies control or may control their files and, if such files contain incorrect personal data or have been processed contrary to legal provisions, every person should be able to request rectification or elimination: UN Human Rights Committee, General Comment No. 16: Article 17 (1988) [10]. See also, UN Human Rights Committee, General Comment No. 34 (Freedom of opinion and expression) (2011) [18].

[11] International Covenant on Civil and Political Rights, article 19(2).

[12] UN Human Rights Committee, General Comment No. 34 (Freedom of opinion and expression) (2011) [12].

[13] UN Human Rights Committee, General Comment No. 34 (Freedom of opinion and expression) (2011) [15].

[14] See Department of Social Services, Social Security Guide (Version 1.281), April 2021, [2.2.1.40] https://guides.dss.gov.au/guide-social-security-law/2/2/1/40 (accessed 4 May 2021).

[15] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights. The Convention on the Rights of Persons with Disabilities and the Convention on the Elimination of All Forms of Racial Discrimination further describes the content of these obligations, including the specific elements that States parties are required to take into account to ensure the right to equality before the law for people with disability on an equal basis with others, and the elimination of discrimination on the basis of race, colour, descent, national or ethnic origin.

[16] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).

[17] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[18] D.H. and Others v the Czech Republic, European Court of Human Rights (Grand Chamber), Application no. 57325/00 (2007) [49]; Hoogendijk v the Netherlands, European Court of Human Rights, Application no. 58641/00 (2005).

[19] See, e.g., Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2017 [F2017L00399].

[20] Statement of compatibility, p. 38.

[21] Statement of compatibility, p. 40.

[22] Statement of compatibility, p. 45.

[23] Statement of compatibility, p. 40.

[24] The UN Human Rights Committee has stated that legislation must specify in detail the precise circumstances in which interferences with privacy may be permitted: NK v Netherlands, UN Human Rights Committee Communication No.2326/2013 (2018) [9.5].

[25] Statement of compatibility, p. 41; Part 2, subsection 8(1)(d).

[26] Statement of compatibility, p. 41.

[27] Privacy Act 1988, schedule 3, principle 4.2.

[28] Statement of compatibility, p. 41.

[29] Although it is noted that the Australian Privacy Principles contain a number of exceptions to the prohibition on use or disclosure of personal information for a secondary purpose, as does the Telecommunications Act 1997.

[30] Statement of compatibility, p. 45.

[31] UN Human Rights Committee, General Comment No.34: Article 19: Freedoms of Opinion and Expression (2011) [34]. At [35], the Committee observed: 'When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat'.

[32] Part 2, subsection 8(1)(a).

[33] Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2017 [F2017L00399].

[34] Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2017 [F2017L00399], sections 4.4 and 4.5. Section 4.4 specifies that where activation of the prepaid mobile carriage service will not result in the purchaser having five or more activated prepaid mobile carriage services and the purchaser offers to pay for the service otherwise than by credit or debit card, then the service provider must verify the identity of the purchaser by seeing one category A document (including a license, passport or birth certificate) or two category B documents (including credit or debit card, Medicare card or a rates statement issued in the previous 12 months). The service provider is not required to take any further steps in relation to a purchaser if they offer to pay for the service using a credit or debit card. Section 4.5 provides that approved methods of identity verification are specified in column B of Schedule 1.

[35] Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2017 [F2017L00399], sections 3.1 and 3.2.

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Purpose	This legislative instrument repeals and remakes the Telecommunications Regulations 2001. In particular it: • specifies a range of matters in relation to which the Australian Communications and Media Authority (ACMA) may make a service provider determination, covering prepaid mobile carriage services; premium services; fixed or mobile voice or data carriage services; and information relating to the telecommunications industry; • provides for exceptions to a rule precluding industry codes and standards from dealing with certain design features and performance requirements; • sets out exceptions to existing use and disclosure offences; • specifies additional kinds of carriage services, ancillary goods and services for which standard agreements are required; and • deals with several matters related to the carrier powers and immunities regime.
Portfolio	Infrastructure, Transport, Regional Development and Communications
Authorising legislation	Telecommunications Act 1997
Last day to disallow	15 sitting days after tabling (tabled in the House of Representatives on 23 March 2021 and in the Senate on 11 May 2021). Notice of motion to disallow must be given by 17 June 2021 in the House of Representatives and in the Senate by 11 August 2021^[2]
Rights	Privacy; freedom of expression; equality and non-discrimination

Australian Parliamentary Joint Committee on Human Rights