Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

TELECOMMUNICATIONS (SERVICE PROVIDER DETERMINATIONS) REGULATIONS 1997 NO.377

Statutory Rules 1997 No. 377

Issued by the Authority of the Minister for Communications, the Information Economy and the Arts

Telecommunications (Service Provider Determinations) Regulations

Section 594 of the Telecommunications Act 1997 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. Paragraph 99(1)(a) of the Act enables the Australian Communications Authority (ACA) to make a written determination setting out rules that apply to service providers in relation to the supply of specified carriage services. However, under subsection 99(3) of the Act, the ACA cannot make a service provider determination unless the determination relates to a matter specified in regulations or in section 346.

The ACA has made an interim determination under transitional provisions under subsection 242B(3) of the Telecommunications Act 1991. The interim determination expires on 31 December 1997. The accompanying regulations allow the ACA to make a determination under subsection 99(1) of the Act which will commence on Gazettal and continue the requirements for a certain level of identity checks for specified prepaid carriage services issued with a public number.

The broader purpose of the accompanying regulations, and associated ACA determination, is to ensure that law-enforcement agencies can gain customer identify information where a person purchases a pre-paid carriage service which involves issuing a public number. Currently, GSM mobile telephone services require a "Subscriber Identity Module" (SIM) which identifies the end user of the service. A SIM card is required to use a GSM mobile phone. Without a requirement on the issuer of the service to record customer identification it would be possible to use the service anonymously and this has the potential to constrain law enforcement agencies in their ability to intercept use of communications services for criminal purposes.

While the accompanying regulations have been cast in a way which allows any prepaid carriage service to be the subject of a determination, it is however expected in practice that the ACA's first determination made under this regulation would only apply to GSM mobile telephone services, which are currently the main cause of concern to law enforcement agencies. The ACA would, however, have the flexibility to address concerns about other prepaid carriage services on their merits and according to their circumstances, if other situations arise.

The accompanying regulations allow for different levels of verification and identity checks. The ACA will specify the requirements for verification and identity cheeks in their determination. Examples of possible verification and identity checks are given in the accompanying regulations. These mirror the checks currently applying in the ACA's interim determination.

In accordance with paragraph 99(1) of the Act, a determination made under the accompanying regulations will apply to carriage service providers. While a determination cannot enable the ACA to impose obligations on the agents acting on behalf of a carriage service provider (eg a newsagent), the regulations nevertheless do permit the ACA to put it beyond doubt that the obligations applying to a carriage service provider apply whether or not that provider is selling a prepaid service on their own behalf or through someone else.

Details of the accompanying regulations are as follows:

Regulation 1 - Citation

Regulation 1 provides that the accompanying regulations may be cited as the Telecommunications (Service Provider Determinations) Regulations (the Regulations). The accompanying Regulations commence on Gazettal.

Regulation 2 - Purpose

Regulation 2 states that the purpose of these Regulations is to set out matters about which the Australian Communications Authority (ACA) can make a service provider determination under subsection 99(1) of the Telecommunications Act 1997 (the Act) Under subsection 99 (3) of the Act, the ACA must not make a service provider determination unless it relates to a mater specified in the regulations or in section 346 of the Act.

Regulation 3 - Definition

Regulation 3 defines some key terms used in the accompanying Regulations. These are principally drawn from the Act, A key definition is that of a "pre-paid carriage service" which is a telecommunications service that can only be supplied to a customer if:

the customer is issued with a public number (which is a number specified in the numbering plan under subsection 455 (3) of the Act) for use with that service; and

the customer pays for the service before using it.

Regulation 4 - Pre-paid Carriage Services

Subregulation 4(1) provides that the ACA may make a determination preventing a service provider from supplying a pre-paid carriage service to a purchaser unless the service provider collects specified information from the purchaser. This subregulation in effect requires the ACA to specify the services to which its determination applies.

Subregulation 4(2) limits any determination under subregulation 4(1) from relating to a purchaser of a pre-paid carriage service where relevant information requirements have been satisfied through a previous sale to the purchaser or through the Telecommunications (Conditions for Allocation of Numbers) Determination 1997.

Subregulation 4(3) provides that the information required under subregulation 4(1) can only relate to the following matters:

*       information the service provider is required to collect in order to provide and maintain the integrated public number database; or

*       information about how many public numbers are currently issued to the purchaser for the same kind of prepaid carriage service (this relates to subregulation 5(3)); or

*       where the purchaser is not an individual (eg a company), additional information which can identify the purchaser.

Regulation 5 - Verification and identity checks for selling pre-paid carriage service

Subregulation 5(1) provides that the ACA may make a determination preventing a service provider from supplying a pre-paid carriage service to a purchaser unless the service provider conducts verification and identity checks on the purchaser.

Subregulation 5(2) requires that the determination under subregulation 5(1) must not relate to a purchaser of a prepaid carriage service where the information requirements have been satisfied through a previous sale to the purchaser or through the Telecommunications (Conditions for Allocation of Numbers) Determination 1997.

Subregulation 5(3) allows the verification and identity chocks in the determination under subregulation 5(1) to differ if the purchaser is issued with more than 5 public numbers in connection with the supply of the same kind of pre-paid carriage service or depending on how the service is delivered.

This regulation provides examples of how the determination under subregulation 5(1) may differ according to the method of purchase of the pre-paid carriage service. The examples given are based on the actual arrangements imposed under the ACA's Telecommunications (Conditions for Access to Numbers) Determination 1997, since it is expected that a similar scheme will apply under the ACA's first determination under these regulations.

Regulation 6 - Records of information and identifying documents

Subregulation 6(1) provides that the ACA may make a determination about the service provider keeping records of the information required under regulation 4.

Subregulation 6(2) provides that the ACA may make a determination about the service provider keeping records of the documents used for verification and identity checks in regulation 5.

Regulation 7 - Restriction for giving false information

Regulation 7 provides that the ACA may make a determination preventing a service provider from allowing a person from using a public number for a pre-paid carriage service where the service provider is aware that information, mentioned in a determination for regulation 4 or 5, is materially false or misleading.

Regulation 8 - Restriction at the request of criminal law-enforcement agency

Subregulations 8 (1), (2) and (3) provide that the ACA may make a determination about a service provider not using a pre-paid carriage service where:

*       the service provider has an incomplete record of information mentioned under regulation 4; or

*       where there are reasonable grounds to suspect that the record information is incorrect; and

*       where the service provider has been asked m writing by a senior officer of a law-enforcement agency not to use the number because the officer suspects on reasonable grounds that the person has used the service to engage in serious criminal conduct and the action is necessary for the purpose mentioned in subsection 313(3) or 313(4) of the Act.

Regulation 9 - Telling users about the determination

Regulation 9 provides that the ACA may make a determination requiring service providers to advise users of pre-paid carriage services of the effect of a determination made for regulations 4, 5, 7 or 8.