Thursday, 30 November 2006
Telecommunications Amendment (Integrated Public Number Database) Bill 2006
Debate resumed from 29 November, on motion by Senator Colbeck:
That this bill be now read a second time.
Judging by the fact I am the only speaker on the speakers list, I have obviously got the popular bill of the day. I rise today to speak on the Telecommunications Amendment (Integrated Public Number Database) Bill 2006. I am doing it on behalf of the Democrats as I am the privacy spokesperson for the Democrats. While I believe there are strong reasons to support the intent and the spirit of this legislation, there are also some flaws in this legislation.
This bill amends the Telecommunications Act 1997 to allow for information contained in the integrated public number database to be used in connection with the conduct of research considered to be in the public interest. The intent of this bill is also to implement relevant safeguards to ensure that IPND information is only disclosed and used for the purposes specified in part 13 of the Telecommunications Act.
The IPND is an industry-wide database containing both unlisted and listed residential and business telephone numbers, and includes all customer related information, such as name and address information. It is established by law as a consolidated database for a specific purpose—to act as a resource for emergency service and law enforcement use, and for the provision of directory services.
I note that the Australian Communications Management Authority has been concerned for a number of years about the potential misuse and misuse of data stored on the IPND by public number directory producers and directory assistance service providers. The ACMA was concerned that customer information was being used for purposes beyond those specified within part 13 of the Telecommunications Act 1997. As a result, the ACMA released a draft industry standard in May 2005 to protect the contact information held by telecommunications customers in the IPND from inappropriate use or disclosure.
The intent of this legislation is to address the privacy concerns of people whose information is stored within the IPND, which is basically everyone with a telephone, and comes in response to reports that the information held on the database has been, and continues to be, misused by various marketing companies. While the Democrats support the government in attempting to prevent the misuse of public numbers and related information, we think there is a lot more that this bill could do. Indeed, there is, generally, more that the government could do to ensure that that information is kept safe and is not misused.
The Democrats have received a number of comments, letters, emails and submissions from privacy groups and companies pointing out that the legislation as currently drafted will not necessarily achieve its stated objective because it will not apply to telephone directories that do not source their information from the IPND. The dominant Sensis white and yellow pages—Sensis being a subsidiary of Telstra—do not source information from the IPND, so they fall outside the coverage of this legislation. The Australian Privacy Foundation has argued that Sensis white and yellow pages ‘and other directories not sourced from the IPND will be able to be used in a way that the bill prohibits for IPND sourced directories, including the provision of privacy intrusive reverse search facilities’.
We also received submissions from companies concerned about the anticompetitive environment this bill may engender. It will leave the Telstra-Sensis database operating at the high end of a slanted playing field. In 1997, the ACCC found—I am sure that some senators are familiar with this—that Telstra:
(a) has a substantial degree of market power in the directory database market and/or the telephone directories market;
(b) has refused to supply such data on reasonable terms (including price) to a number of market participants who have sought supply; and
(c) by engaging in the conduct described in paragraph (b), has taken advantage of its power in each of the said markets and that such conduct on the part of Telstra contravenes section 46 of the Trade Practices Act.
I stress that, while we support the intent of this bill before us and the measures that are being put in place today, we believe it is inadequate in a general sense in achieving what it purports to achieve, and it may also have the unintended consequence of establishing an anticompetitive environment.
The purpose of this bill and the bill itself should be extended to the public directories whether sourced from the IPND or not. This would have been a powerful tool for consumer protection and it is something that I ask the government to consider. Clearly, it is not going to happen today and, clearly, I do not have the support of the majority in the chamber to move an amendment along those lines, otherwise I would have done so. Furthermore, as the Australian Privacy Foundation indicated to me:
While covering all directory producers might require legislative changes beyond the Telecommunications Act, there is no apparent reason why that Act cannot regulate the activities of all directory producers who are also carriage services providers.
That might be something that the minister can take up in her comments to this legislation today: why is it that the government has chosen not to go down this road and, while acknowledging as I do that there may be broader amendments required not just to the legislation before us in this bill but also to the Telecommunications Act in general, why is the government not pursuing those? Is there a particular reason? Is it something that they have examined and investigated and rejected for a particular reason? I am happy to discuss this at another time because, as I say, I understand that the proposals that I could put forward on behalf of the Democrats do not have support necessarily of others in this chamber. This bill is non-controversial; it has been given half an hour. I am not going to suggest that I hold up the Senate’s time but I am going to put on record a couple of amendments that could and should be made to this legislation.
We need a new section stating that no person shall publish or maintain a public number directory other than within the framework of the integrated number databases scheme in force under section 295A. In making all public number directories subject to the same regulation, the intended protection provided under this bill would be fully realised. That is the view of the Australian Democrats, and I ask the government to consider an amendment along those lines.
Secondly, there should be an addition to the new section 285(1). We propose that the government should have considered, or at least should consider for future reference, a subparagraph (d) which ensures that for any activity covered under subparagraph (c) the carrier or the carriage service provider holds an authorisation in force under the integrated public number database scheme permitting it to use the information or document. Without an addition of that kind carriers and carriage service providers, including Telstra, which choose to publish a public number directory, will not be subject to the same controls, supervision and penalties as other publishers.
There is another thing that the government could have done, and perhaps should do. They should add a new section to section 285(3). It could be that the minister must not specify a kind of research that does not require it to be undertaken by an independent contractor and on condition that the client for the research does not receive any information from the contractor that identifies any respondent, again ensuring that the information is held securely. This would also prevent the minister from allowing marketing, fundraising and political polling to masquerade as research.
Another change would be to subparagraph (e) under the new definition of ‘public number directory’, section 285(2), because I do not necessarily believe that the minister should be able to vary the substantive nature of public number directories by regulation. And finally, as another suggestion, there should be an addition to new section 295A to ensure the ACMA scheme covers all publishers of public number directories.
The reason I am putting this on the record in the form of suggested amendment ideas and not amendments is partly related to the fact that these amendments, which I was happy to pursue and move, have not had time because of the backlog of legislation and the backlog of amendments from the non-government side. Because of the backlog, it has been too difficult to get these amendments drafted even though it is something that I have been looking at for a reasonable period of time. I also understand that in this new post 1 July 2005 world the Senate is dominated by the government and, unless you have the numbers and the support for such amendments, sometimes there is questionable value in putting people, including the clerks—the Clerk Assistant (Procedure) in particular who does such wonderful work in this place—to such trouble. It is sometimes questionable value as to whether or not you want to put people to the trouble of drafting those amendments no matter how important they may be or how valuable they could be to the legislation when you know that we bring them to this place and often they receive perhaps cursory debate but certainly not the numbers in support.
In no way am I wishing to abrogate my responsibility as a legislator; instead, I seek to put forward these ideas to the government. I understand that they are not going to be adopted today but I am curious as to the rationale behind the legislation before us. Is there a reason that the government perhaps is categorically ruling out some of these changes? Is the government conscious of what has been perceived, for example, as unintended consequence of this bill? Is it the case that the government has examined the possibility of the so-called anticompetitive environment and decided to pursue this particular bill in its current form regardless? Perhaps some answers to those issues would satisfy me and the Australian Democrats.
In general, and in conclusion, you and others will know that the Democrats by virtue of having a portfolio that deals with privacy recognise that this is an issue that is incredibly important to us. It has been important since our inception in 1977. We were among the first—in fact, probably the first—to call for not just a privacy scheme in Australia but an extension of that scheme to cover the private sector as well as the public sector. Some senators may or may not be aware of the work of former Senator Michael Macklin in that regard. Since then we have maintained vigilance. We have scrutinised legislation to ensure that the privacy needs of Australians are protected wherever they can be. I note today the government has brought down, finally, its response to the Democrat initiated Senate inquiry that dealt with the issue of privacy protection in Australia and in particular examined the loopholes in the privacy regime in this country—and I am sure I will have an opportunity to talk to that later today.
I think Australians do care about their privacy. They do not believe that it is a fundamental right; they do acknowledge that there are balances that have to be struck—and, when it comes to a commercial environment or databases such as this one, I think Australians are happy for governments to allow them. They recognise that businesses are entitled to them but they want the best protections in place so that their personal details, whether it is their residential address or their phone number, are kept safe and not disclosed in a way that is inappropriate. So I support the changes in this legislation and I urge the government to go further. Maybe that will be a discussion for another day between the Australian Democrats and the government.
I will now sum up on behalf of the government the second reading debate on the Telecommunications Amendment (Integrated Public Number Database) Bill 2006. Privacy and the protection of people’s personal information has of course become a key issue of concern to the Australian community, and the government has well and truly listened. With the passage of this bill today, the government tightens access to personal information for the purposes of producing a telephone directory. The legislation is an important step forward in taking action against the unauthorised use of personal information which is provided by customers when they sign up for a telecommunications service and recorded in the Integrated Public Number Database, or IPND.
The bill introduces a definition of ‘public number directory’ into the act in order to prevent personal information held in the IPND being directly used for unauthorised purposes. Under the current provisions of the act, IPND data must not be directly combined with or appended to additional information before producing a public number directory. This has always been the case, and the legality or otherwise of current industry practices is not affected by the current bill.
The bill also gives the Australian Communications and Media Authority, or ACMA, a key gatekeeper role in deciding on applications for access to IPND information by public number directory producers and researchers. Currently the IPND gatekeeper is Telstra. The bill requires ACMA to establish a scheme for the granting of authorisations, permitting persons to use and disclose IPND information. This is a significant enforcement of privacy protections. To further enhance privacy protections, the bill requires ACMA to consult with the Privacy Commissioner and the Attorney-General’s Department on the development of the scheme. Existing and prospective IPND data users will be required to apply to ACMA for an authorisation to access the IPND. Telstra will only be permitted to disclose IPND data to persons holding such an authorisation.
As well as clarifying IPND access arrangements for public directory producers, the bill allows for limited access to IPND information for some specified social research purposes that are clearly in the public interest. But importantly the bill does not permit unlisted customer information, including silent number information, to be published in public number directories or used to conduct research. Criminal sanctions will apply for unauthorised secondary disclosure and use of IPND data, and for breaches of conditions of authorisations issued under the IPND scheme. The purpose of providing access to the IPND for the production of public number directories is to permit competition in the production of public number directories. Public number directory producers will continue to provide directory products in competition with Sensis and others, and the bill does not change that.
The government’s strategy in developing legislation has always been to ensure that we listen to the views of industry and the community. ACMA has undertaken exhaustive consultations on the issues addressed by this bill, and the government believe that the bill is a robust and effective response to the problem at hand.
I thank senators for their support of the bill. I listened carefully to Senator Stott Despoja’s suggestions and criticisms, and I am grateful for her overall support for this important piece of legislation. I probably have just a little bit of time to deal with her point about whether there are any unintended consequences or any anticompetitive consequences of this particular scheme. That is probably all I will be able to deal with today. In saying that, in no way do I intend to disparage or otherwise not deal appropriately with Senator Stott Despoja’s suggestions. Of course, where appropriate, the government continue to look at whether or not there is any way in which we can improve our responses through all of our legislation, and this bill is no exception. But this particular bill is not about Sensis; it is actually about the IPND.
Sensis as a telecommunications contractor is subject to the primary disclosure provisions in part 13 of the Telecommunications Act. Part 13 of the act includes criminal offences and penalties for unauthorised disclosure and use of personal information. The maximum penalty is two years imprisonment for an individual or a pecuniary penalty of $13,200 for an individual, or a pecuniary penalty of $66,000 for a body corporate. The bill does not alter the strong controls on Sensis under the act. For Sensis to disclose customer data legally, it must do so under an existing exemption under part 13 of the act. Sensis does not obtain directory information from the IPND; rather, it enters into commercial contracts directly with other carriers for the provision of this information. Other parties could, for example, both pre and post passage of the bill, seek to enter into similar arrangements should they wish to compete with Sensis. As such, the bill does not prevent businesses developing and marketing competing directory products using information sourced directly from carriers.
Further to Senator Stott Despoja’s point, I can inform the Senate that advice I have received from the ACCC is that it has received no evidence to support claims of anticompetitive conduct by Sensis in the provision of directory services. Moreover, the ACCC has powers under the Trade Practices Act to effectively deal with such behaviour should it occur in the future.
In conclusion, the government take the view that this bill is an appropriate and measured response that significantly improves the Telecommunications Act; it is obviously an improvement on the current arrangements. Once again I record my thanks to the Senate for their support for this bill on a non-controversial basis and I commend the bill to the Senate.
Question agreed to.
Bill read a second time.