Telecommunications Act 1997 (Cth)

71.8 The Telecommunications Act regulates the activities of a number of participants in the telecommunications industry, including ‘carriers’ and ‘carriage service providers’. The statutory definitions of these terms are complex. Essentially, a ‘carrier’ is the holder of a ‘carrier licence’[6]—a type of licence required before certain infrastructure can be used to carry communications by means of guided and unguided electromagnetic energy.[7] A ‘carriage service provider’ is a person who makes use of the infrastructure owned by a carrier to carry these types of communications.[8]

71.9 Part 13 of the Telecommunications Act regulates the use and disclosure of information obtained by certain bodies during the supply of telecommunication services. It makes it an offence (punishable by up to two years imprisonment) for certain participants in the telecommunications industry (referred to in this chapter as ‘telecommunications service providers’)—namely, carriers, carriage service providers, telecommunications contractors and their employees; eligible number-database operators;[9] and emergency call persons—to use or disclose information or a document relating to the:

  • contents or substance of a communication carried, or being carried, by a carrier or carriage service provider;

  • carriage services supplied or intended to be supplied by a carrier or carriage service provider; or

  • affairs or personal particulars (including any unlisted telephone number or any address) of another person.[10]

71.10 The Act specifies a number of exceptions to these ‘primary use/disclosure offences’.[11] The Act also regulates the secondary use and disclosure of protected information.[12] For example, a person to whom information was disclosed because the disclosure was required or authorised by or under law is prohibited from using or disclosing the information, unless the further use and disclosure is also required or authorised by or under law.[13] A person who contravenes the secondary use and disclosure provisions is guilty of an offence punishable by up to two years imprisonment.[14]

71.11 Part 6 of the Telecommunications Act deals with the development of industry codes and standards for particular industry activities. Industry codes and standards developed under the Act can deal with privacy, including the protection of personal information.[15] An industry code or standard cannot, however, derogate from the requirement of the Privacy Act or a privacy code approved under the Privacy Act.[16]

71.12 The Privacy Act regulates many aspects of the handling of personal information by telecommunications service providers. For example, a telecommunications service provider that is not a small business must collect information in compliance with National Privacy Principle (NPP) 1, and must take reasonable steps to make sure that the personal information it collects, uses or discloses is accurate, complete and up-to-date as required under NPP 3. Therefore, both Part 13 of the Telecommunications Act and the NPPs regulate the handling of personal information. The interaction between these provisions is discussed further below.

71.13 In 1999, the Australian Communications Industry Forum (ACIF) (now Communications Alliance), a body that represents the interests of the communications industry, developed and registered the Industry Code—Protection of Personal Information of Customers of Telecommunications Providers (the Code) under Part 6 of the Telecommunications Act.[17] The Code expanded on the privacy protections of Part 13 and addressed matters that are not dealt with in the Part, such as how information should be collected, stored and handled. These requirements were based on the National Principles for the Fair Handling of Personal Information,[18] which later became the NPPs under the Privacy Act. The Code was considered to be unnecessary when the private sector provisions of the Privacy Act came into force, and was deregistered in 2001.

[6]Telecommunications Act 1997 (Cth) s 7. A carrier licence is granted under s 56 of the Act.

[7] Ibid ss 7, 42.

[8] Ibid ss 7, 16, 87.

[9] Ibid s 272. There are currently no eligible number-database operators as no determination is in force under s 472(1).

[10] Ibid ss 276–278. Part 13 protects information or a document about a communication, but does not protect the content or substance of the communication. The content or substance of a communication is protected under the Telecommunications (Interception and Access) Act 1979 (Cth).

[11] Ibid ss 279–294. These exceptions are discussed in detail in Ch 72.

[12] Ibid ss 296–303A.

[13] Ibid s 297.

[14] Ibid s 303.

[15] Ibid s 113(3)(f).

[16] Ibid s 116A.

[17]Australian Communications Industry Forum, Industry Code—Protection of Personal Information of Customers of Telecommunications Providers, ACIF C523 (1999).

[18]Office of the Privacy Commissioner, National Principles for the Fair Handling of Personal Information (1999).