Bills Digest no. 110 2008–09
Telecommunications Amendment (Integrated Public Number
Database) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Date
introduced: 23 February
2009
House: House of Representatives
Portfolio: Broadband, Communications and the
Digital Economy
Commencement:
The day after Royal
Assent
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The primary purpose is to amend the Telecommunications Act
1997 to allow information contained in the Integrated Public
Number Database (IPND) to be disclosed for the development and
implementation of telephone based emergency warnings systems by the
States and Territories.
Background
The Integrated Public Number Database (IPND) is an industry-wide
database that contains information related to all listed and
unlisted public telephone numbers in Australia, regardless of the
service provider. It was established in 1998 and is managed by
Telstra under the Carrier Licence Conditions (Telstra
Corporation Limited) Declaration 1997.
The IPND contains public number customer data which includes a
public number and associated information such as the customer's
name and address and the name of the service provider providing the
carriage service. This data may only be accessed and used for the
approved purposes specified in clause 10(1) of Telstra's Carrier
Licence which are:
- providing directory assistance services
- providing operator services or operator assistance
services
- publishing public number directories
- providing location dependent carriage services
- the operation of emergency call services or assisting emergency
services
- assisting enforcement agencies or safeguarding national
security, and
- any other activities specified by the Australian Communications
and Media Authority (ACMA) by written notice to the IPND Manager
(which is Telstra).[1]
Telstra, as the IPND Manager, is responsible for maintaining the
IPND and its integrity. The IPND Manager receives data from
registered data providers, and provides data to data
users..[2]
The Telecommunications Act set up the regulatory framework that
established the IPND in 1998. Part 4 of Schedule 2 of that Act,
which sets out service provider rules, states that it is compulsory
for all carriage service providers that supply a carriage service
to an end user using a public number to provide the public number
and related customer data to the IPND Manager (currently Telstra).
There are also obligations on carriage service providers to ensure
that the information provided to the IPND Manager is at all times
as accurate and current as possible.[3]
Access to the IPND is governed by Part 13 of the
Telecommunications Act and the Integrated Public Number Database
(IPND) Data provider, Data User and IPND Manager Code developed by
the Australian Communications Industry Forum. Division 2 of Part 13
of the Act provides general prohibitions on the disclosure and use
of people s personal information provided to carriage service
providers unless it is authorised by an exception in Division 3 of
Part 13 of the Act.
The existing exceptions contained in the Act enable IPND data to
be used by certain organisations including carriage service
providers, law enforcement agencies, national security agencies,
emergency services organisations, the Australian Competition and
Consumer Commission, the ACMA and the Telecommunications Industry
Ombudsman; or for certain purposes including the provision of
directory assistance services and the publication or maintenance of
a directory of public numbers.
With a death toll of 210 people,[4] the Victorian bushfires in February 2009 have been
described as Australia s worst natural disaster.[5] In the wake of this disaster,
questions have been raised about whether a telephone emergency
warning system would have helped alert people of the imminent
disaster and whether the IPND should have been available to enable
warning calls to be made to all landlines and mobile phones in a
threatened area. Some media reports suggested that the development
of such a system had been relatively slow and that Government
inaction had hindered development of some of the State s alerting
systems.[6] It was
also reported that access to the IPND, considered to be necessary
for the development of these systems,[7] had been hampered at Commonwealth
level.[8]
Both the coalition and the Government
have been keen to show that their respective Governments were
actively supporting the development of both State telephone warning
systems and moves to a more coordinated national approach.
Senator Helen Coonan, now Shadow Minister for Foreign Affairs,
has refuted the media claims regarding Government inaction.[9] She states that in 2007,
as the then Minister for Communications, she approved access to the
IPND for a Western Australian trial emergency warning system.
Furthermore in the same year she had also written to the then
Commonwealth Attorney-General recommending both the merits of a
Telstra warning system and that its implementation should be
considered. The press release continues:
Even with the change in federal government in
November 2007, there should have been minimal delay implementing a
warning system as the Department of Communications had been well
briefed about the technology and WA trial.[10]
The Minister for Broadband, Communications and the Digital
Economy, Senator the Hon. Stephen Conroy, and the Attorney-General,
the Hon Robert McClelland, in a joint press release, state that in
2008, the Rudd Government placed the issue of a telephone-based
emergency system on the agenda of the Council of Australian
Governments (COAG). [11] COAG agreed it was a priority and commissioned the work
necessary to reach agreement by the end of 2008. The work was
completed, and agreement was achieved in November 2008.[12] The press release
continues:
This agreement was necessary to address
important concerns such as ensuring telephone-based emergency
warning systems do not overload and disable the telecommunications
network (including access to the 000 emergency hotline) and the
security of individuals personal information.
In accordance with the agreement the Government
immediately commenced drafting legislation to authorise access to
the IPND. The necessary legislation and database the Government is
putting in place will enable the States and Territories to access
the data needed to develop their own warning systems as soon as
possible.[13]
The issues related to developing and implementing a telephone
based emergency warning systems are beyond the scope of this Bills
Digest. It is important to clarify that the Bill does not seek to
set up such a system rather the Bill has the very limited purpose
of facilitating access to the IPND for the purpose of developing
and implementing emergency warning systems.
It is of note that at the time of introduction of this Bill, the
Government also tabled a Regulation with a similar purpose of
enabling interim access to the IPND for emergency warnings.[14] The intent of the
Regulation was to fast track the changes to provide immediate
access to the database in light of the bushfire emergency situation
in Victoria. The regulation took effect on 23 February
2009.[15]
The Explanatory Memorandum states that the Bill is not expected
to have any financial impact on Commonwealth expenditure or
revenue.[16]
As noted above, Part 13 of the Telecommunications Act regulates
the use and disclosure of information obtained by certain bodies
such as carriers and carriage service providers during the supply
of telecommunication services. More specifically sections 276 and
277 prohibit, amongst other things, the disclosure or use of
information released from an IPND in connection with the delivery
of telecommunications services by carriers, carriage service
providers or their employees and contractors. Offences are
punishable by up to two years imprisonment. A number of exceptions
to these prohibitions are specified in section 285 which allows
disclosure of information from the IPND 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.
Proposed section 285A (item 2) is a key
provision of the Bill. It effectively provides another exception to
the prohibitions in sections 276 and 277 and would allow disclosure
of data and information for emergency warnings. The new section
285A provides that data from an integrated public number database
(including unlisted telephone numbers) may be disclosed to an
emergency management person , providing it is for the purpose of
the information being later used or disclosed for:
- a purpose connected with persons being alerted to an emergency
or a likely emergency, or
- a purpose of reasonable testing of such alerts.
For the purposes of this section an integrated public number
database means either the IPND currently maintained by
Telstra,[17] or an
integrated public number database as determined by the
Communications Minister under section 472[18] (new subsection
285A(2)).
An emergency management person is a position or person
specified by a legislative instrument by the Attorney-General after
consultation with the Communications Minister (proposed
section 275). It could include State or Territory
positions or offices (proposed subsection
275(B)(3)). The emergency management person would have
powers and responsibilities in connection with alerting persons to
a likely or actual emergencies and for the reasonable testing of
such alerts.[19]
An emergency is defined as an emergency or disaster
within the meaning of emergency law (proposed section
275C). The Attorney-General may by legislative instrument
specify a State or Territory law to be an emergency law
(proposed section 275D).
Item 3 inserts a new Division
3B into Part 13 which details the circumstances in which
an emergency management person may use and disclose IPND
information and also includes penalty provisions and reporting
obligations in relation to these new powers.
Proposed section 295V provides that an
emergency management person may use or disclose data or information
from the IPND (other than the names of persons) for the purpose
of:
- alerting persons to likely or actual emergencies
(proposed subsections 295V(1) and
(2))
- reasonable testing of whether, in the event of an emergency
occurring, persons would be able to be alerted to that emergency
(proposed subsection 295V(3))
- the information being later used or disclosed for a purpose
connected with persons being alerted to an emergency or likely
emergency (proposed subsection 295V(4)).
Proposed section 295W deals with secondary uses
or disclosures. If information is disclosed to a person as
permitted by section 295V then that person may use or disclose the
information for a purpose of:
- alerting persons to likely or actual emergencies
(proposed subsection 295W(1))
- reasonable testing of whether, in the event of an emergency
occurring, persons would be able to be alerted to that emergency
(proposed subsection 295V(2))
- the information being used or disclosed for another purpose
connected with persons being alerted to an emergency or likely
emergency (proposed subsection 295V(3)).
Proposed section 295X requires that when using
or disclosing the relevant information from the IPND, the person
must take reasonable steps to ensure that use or disclosure does
not adversely affect the operation of a telecommunications network.
The Explanatory Memorandum states that 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.[20]
Proposed section 295Y confirms that disclosure
of relevant information to a coronial inquiry, or to another
inquiry specified by the Attorney-General by a legislative
instrument is permitted where disclosure is in relation to an
emergency or likely emergency.
Proposed sections 295Z and
295ZA are offence provisions. There are penalties
of up to two years imprisonment for misuse of the IPND data. These
are similar penalties to other provisions dealing with illegal
disclosure and use of communications data.
Proposed sections 295ZB and
295ZC contain reporting obligations for emergency
management persons. Each time an emergency management person
discloses relevant information they must give a report to the
Attorney-General and the ACMA as soon as practicable
(proposed section 295ZB). The report must include
a description of the emergency or likely emergency, the number of
telephone numbers disclosed, the number of persons to whom the
disclosure was made and the purpose of the disclosures
(paragraphs 295ZC(a) to (c)).
Emergency management persons must also submit annual reports to the
ACMA and the Privacy Commissioner containing similar information
relating to disclosures (proposed section
295ZC).
Proposed section 295ZE provides the
Commonwealth with immunity from action against it in relation to
loss, damage or injury as a result of the use or disclosure of
relevant information. The Explanatory Memorandum explains the
rationale for this provision.[21]
The Bill also contains amendments that will clarify provisions
in the Telecommunications Act which relate to the disclosure and
use of IPND data for delivering location dependent carriage
services (LDCS).
LDCS are services which automatically route calls to the
appropriate store or branch location of a business, depending on
the location of the caller. Examples of businesses commonly using
this type of service include pizza delivery and taxi services. They
are generally services provided using 13 or 1300 numbers.[22]
Currently the Act does not contain express authority for
disclosure and use of information in the IPND for the purpose of
providing LDCSs on a wide scale. The Explanatory Memorandum states
that current access to the IPND for the provision of LDCS is only
permitted to carriers and carriage service providers and only where
the IPND information relates to a current or former subscriber of
that particular carrier or content service provider.
The amendments in Part 2 of the Bill would
allow LDCS providers to access listed public number information in
the IPND for the purpose of supplying large-scale LDCS.
Item 5 inserts proposed
subsections 291A(1) and 291A(2)
to provide additional exceptions to the primary use and disclosure
offence provisions set out in sections 276 and 277 of the
Telecommunications Act. These subsections would expressly permit
disclosure and use of information or documents relating to the IPND
for the purpose of providing a LDCS.
The Bill provides two significant privacy protections in
relation to this new provision:
- information relating to unlisted telephone numbers is
specifically excluded from the permitted disclosure provisions in
subsections 291A(1) and 291A(2) thus protecting the privacy of
persons with unlisted telephone numbers
- additional secondary disclosure and use offences in
proposed subsection 302A(1) (item 6) to protect
against improper disclosure and use of information from the IPND
for the purpose of providing a LDCS. The offence is punishable by
up to two years imprisonment (existing section 303).
Concluding comments
The Bill has bipartisan support and is being considered with
some urgency by the Parliament. Debate since the February bushfires
suggests that politicians in all parties are keen to promote any
emergency warning system that might in some way help to prevent a
repeat of the disastrous loss of life and property that occurred in
Victoria. Indeed, the urgency of the Bill has largely been
superseded due to the introduction of a Regulation that came into
effect at the same time as this Bill s introduction. [23] That Regulation allows
interim access to the IPND for the purpose of setting up and using
emergency systems.
It should also be clarified that this Bill has quite a limited
purpose. It does not seek to set up any emergency warning system
rather it facilitates access to the IPND as an input to such
systems. The IPND, because of its comprehensive and accurate
content is the ideal source of data. However facilitating access to
the IPND is a relatively minor and straightforward part of the
bigger, more complex picture of establishing a coordinated
telephone-based emergency warning system. While that bigger picture
is beyond the scope of this Digest, it is worth noting that there
are challenges ahead to address the complex and costly
technological issues and to accommodate the differing needs of the
States and Territories in a nationally consistent telephone-based
early warning emergency system.
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277
2438.
[5]. In terms of destruction, current
estimates indicate Victorian communities will need to clean-up
approximately 2029 homes, 11 community buildings, 59 commercial
buildings and 2385 agricultural sheds, dairies and machinery.
Premier John Brumby, Thousands of properties to be cleared up ,
media release, 27 February 2009. At:
http://www.premier.vic.gov.au/premier/thousands-of-properties-to-be-cleared-during-bushfire-clean-up.html
[10]. ibid.
[12]. The COAG website provides the following
report of the
2 October 2008 meeting:
COAG noted
the Ministerial Council on Police and Emergency Management
Emergency Management report on the progress of developing a
nationally-consistent, telephone-based community emergency warning
system. A nationally-consistent community emergency warning system
will enhance the current capability to provide timely and accurate
warnings in the event of emergencies, and provide useful
information and advice on individual and community responses.
COAG has requested that all remaining tasks, including a
cost-benefit analysis, be completed by the end of 2008.
A copy of the Ministerial
Council for Police and Emergency Management report on an emergency
warning system does not appear to be publicly available.
[13]. The press release also indicates that
the Commonwealth has advised the States and Territories that if
they are able to agree to a national system at the next COAG
meeting the Commonwealth will make a further financial contribution
to establish such a system, to be owned and operated by the States
and Territories.
[14]. Telecommunications Amendment
Regulations (No. 1). Select Legislative Instrument 2009 No.
31.
[23]. Telecommunications Amendment
Regulations (No. 1). Select Legislative Instrument 2009 No.
31.
Mary Anne Neilsen
10 March 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top