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Privacy Law and Policy Reporter (PLPR)
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Raiche, Holly --- "Privacy and telecommunications after 1977" [1996] PrivLawPRpr 34; (1996) 3(3) Privacy Law & Policy Reporter 53

Privacy and telecommunications after 1997

Holly Raiche

The Minister for Communications and the Arts, Senator Alston, recently confirmed the Government's plans to have legislation changing the structure and regulation of telecommunications in place by the end of 1996.[1]

The process of developing the legislation began with the Government's policy statements on communications.[2] This was followed by the recently released `Green Paper'[3] on telecommunications reforms, discussed at a public forum held in Sydney on 16 March. Later steps forecast by Senator Alston include the establishment of an `expert working group' to provide advice on policy principles for a `further exposure draft of the legislation' which will be introduced into Parliament in its spring session.[4]

There was little discussion on privacy issues in either the public forum or the Green Paper. The rest of this article is about what the Green Paper does say about privacy, and what future legislation should say to ensure the Government's stated aims for adequate privacy protection in telecommunications are met.[5]

The Green Paper contains only two sentences on privacy protection for the new legislation:[6]

The legislation would need to protect the privacy of information held by the telecommunications industry and the content of communications. Requirements would need to apply to carriers, service providers, contractors and their employees.
The previous Government's Exposure Draft of telecommunications legislation for post-1997 would have left privacy protection to Codes of Practice, developed and enforced by industry, although AUSTEL would have the power to set standards for privacy protection if the Code were not operating `to provide appropriate community safeguards'.[7] Therefore, the Green Paper's statement that `legislation' will be the mechanism for privacy protection in telecommunications is welcome.

The issue is what legislation will protect privacy in telecommunications: an expanded legislated privacy protection regime or telecommunications legislation which includes specific privacy measures.

The Government's policy on communications privacy commits to a Government inquiry `into the extent of information gathering in the public and privacy sectors, current administrative and regulatory regimes for protection of privacy, and the need for reform'.[8] The policy also talks about the need for `updated' privacy legislation, but then suggests the possibility of a `national Privacy Code of Practice, binding both public and private sectors'.[9]

In the absence of a clear Government commitment to expanding current privacy legislation which covers the private sector, the legislative privacy protection forecast by the Green Paper may imply telecommunications specific legislation which includes privacy rules, as is now the case.[10]

One difficulty with the current telecommunications privacy regime is that it makes breaches of the privacy rules a criminal offence -- which may be totally inappropriate in many circumstances.

A better structure could be the imposition of privacy protection rules as a condition of the licence of both carriers and service providers. This would allow the regulator to investigate any breaches of the licence and impose penalties or give directions, as provided for in current legislation.

A feature of the current structure that could be maintained is allowing the Telecommunications Industry Ombudsman (TIO) to handle complaints about breaches of privacy, in cooperation with the Privacy Commissioner.

The Green Paper suggests that carriers will continue to be required to enter into and comply with a TIO scheme.[11] It also suggests that service providers will be required to comply with the TIO scheme and enter into the scheme when directed to by AUSTEL.[12] Therefore, the TIO will have coverage over the major industry players, and be an appropriate mechanism for consumer complaints about privacy against all industry players.

Finally, the Green Paper suggests continued legislative protection for the content of communications. Presumably, this will mean a continuation of the Telecommunications (Interception) Act 1979. However, that legislation was written when the primary threat to privacy was the interception of voice communications. Thus, the Act's definition of interception as `listening to or recording' communication.[13]

The increasing use of the telecommunications network for other forms of communication, such as e-mail, suggests that the definition of `interception' in a telecommunications context needs to be rethought.

Although the Green Paper does not specifically invite public submissions, the Government will welcome any public comment on the Paper. Hard copies of the Green Paper are available from the Planning and Review Division of the Department of Communications and the Arts (Phone (06) 297 1572. Address: GPO Box 2154, Canberra, ACT 2601). The Green Paper is also available on the Department's home page (http://dca.gov.au). The Green Paper is included within the Government Policy Statements.

Holly Raiche, Communications Consultant

[1] Minister for Communications and the Arts, Senator Alston, Opening Address at ATUG `96 (Australian Telecommunications Users Group), 30 April 1996, p 2.

[2] Better Communications, released in 1995, and Online Australia, released in 1996.

[3] Discussion Paper: Post 1997 Telecommunications Legislation.

[4] ATUG speech, p 5.

[5] Online Australia, pp 15-16.

[6] Green Paper, p 19.

[7] Clauses 1904 and 1908, Telecommunicaions Bill 1996, Exposure Draft

[8] Online Australia, p 15.

[9] Online Australia, p 16.

[10] Section 88, Telecommunications Act 1991, cl 7.2, Telecommunications (General Telecommunications Licences) Declaration (No. 1) of 1991 and cl 2.4, Telecommunications (General Telecommunications Licences) Declaration (No. 2) of 1991

[11] Green Paper, p 19.

[12] Green Paper, p 22.

[13] Section 6(1) Telecommunications (Interception) Act 1979.


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