Federal Register of Legislation - Australian Government

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Determinations/Communications as made
This determination revokes and replaces the Telecommunications (Service Provider - Identity Checks for Pre-paid Public Mobile Telecommunications Services) Determination 2000 with modifications to improve the arrangements for the identity-checking of customers of prepaid mobile carriage services.
Administered by: Communications and the Arts
Registered 29 Oct 2013
Tabling HistoryDate
Tabled HR12-Nov-2013
Tabled Senate12-Nov-2013
Date of repeal 08 Apr 2017
Repealed by Telecommunications (Service Provider — Identity Checks for Prepaid Mobile Carriage Services) Determination 2017

EXPLANATORY STATEMENT

Prepared by the Australian Communications and Media Authority

Telecommunications Act 1997

Telecommunications (Service Provider - Identity Checks for Prepaid Mobile Carriage Services) Determination 2013

 

The Australian Communications and Media Authority (the ACMA) makes the Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2013 (the Determination) under subsection 99(1) of the Telecommunications Act 1997 (the Telecommunications Act).

The Determination revokes and replaces the Telecommunications (Service Provider - Identity Checks for Pre-paid Public Mobile Telecommunications Services) Determination 2000 (the 2000 Determination) with modifications to improve the arrangements for the identity-checking of customers of prepaid mobile carriage services.

Background

Identity-checking requirements for customers of prepaid mobile carriage services were first introduced in 1997 to prevent the anonymous use of such services and to allow law enforcement and national security agencies (the relevant agencies) to obtain information about the identity of customers, where needed, for the purposes of their investigations.

Before the Determination was made, carriage service providers (CSPs) and third party retailers of the services checked the identity of a customer at the time of sale, primarily using a paper form, in accordance with the 2000 Determination.

Industry and the relevant agencies had long standing concerns about the efficiency and effectiveness of those arrangements, especially in relation to the cost of the processes and the quality of the information obtained. Privacy concerns had also been expressed about customers having to provide the same personal information twice, and the risk of loss or mishandling of personal information through the use of paper forms and the provision of identification in a retail context.

Purpose

The purpose of the Determination is to:

·         ensure that there are more efficient and streamlined identity-checking processes for industry and more accurate information is obtained for the relevant agencies by:

·         introducing a range of new methods which can be used to verify the identity of purchasers and service activators; and

·         requiring the collection of information that would assist the relevant agencies in their investigations;

·         enhance the privacy protections afforded to purchasers and service activators by:

    • providing them with a range of choices about how their identity can be verified; and
    • imposing restrictions on the collection, recording and copying of personal information in the identity-checking process.

Legislative provisions

Subsection 99(1) of the Telecommunications Act provides that the ACMA may make written determinations setting out rules that apply to service providers in relation to the supply of specified carriage services or content services, which are called service provider determinations. Subsection 99(3) of the Telecommunications Act provides that the ACMA must not make a service provider determination unless the determination relates to a matter specified in the regulations or in section 346 (which relates to disaster plans).

The relevant enabling regulations are the Telecommunications Regulations 2001 (the Telecommunications Regulations). The Telecommunications Regulations were amended by the Telecommunications Amendment Regulation 2012 (No.2) in December 2012 primarily to:

·         allow the ACMA to introduce new ways in which the identity of a customer of a prepaid mobile carriage service can be verified; and

·         provide the ACMA with a greater degree of discretion in the matters to which a service provider determination can relate.

Documents incorporated by reference

The Determination incorporates by reference the technical report TR 102 216 Smart cards; Vocabulary for Smart Card Platform specifications, published by the European Telecommunications Standards Institute, as amended from time to time.

A copy of this technical report is available at the website: http://www.etsi.org.

Regulation Impact Statement

A Regulation Impact Statement was prepared by the ACMA’s portfolio Department (the Department) and is available on the Office of Best Practice Regulation (OBPR) website at http://ris.finance.gov.au/. The OBPR reference number is 13089.

Public consultation

The new methods of identity verification introduced by the Determination were developed as part of a working group led by the Department. The working group included representatives from the Australian Mobile Telecommunications Association, Telstra, Optus, Vodafone Hutchison Australia, the Attorney-General’s Department, the relevant agencies, the Office of the Australian Information Commissioner and the ACMA.

On 13 May 2013, the ACMA released a consultation paper attaching a draft version of the Telecommunications (Service Provider - Identity Checks for Prepaid Mobile Carriage Services) Determination 2013 (draft Determination) for public comment.[1]  The consultation paper sought submissions from interested parties on the key proposed changes under the draft Determination, including the new methods of identity verification.

The ACMA received submissions from industry participants (including mobile carriers), the relevant agencies, other government agencies (including the Australian Competition and Consumer Commission), consumer advocacy groups and other interested parties.

Submissions were generally supportive of the proposed rules set out in the draft Determination, including an activation-based identity-checking process.

The key issues to emerge from the consultation process related to:

·         the need for a privacy impact assessment;

·         provisional activation of services in certain circumstances;

·         obtaining additional information about exempt individuals where practicable;

·         the method of identity verification involving delivery by a secure courier; and

·         the definition of a prepaid mobile carriage service.

In response to those issues, the ACMA made further amendments to the draft Determination in consultation with relevant parties and in line with the overarching general requirement that a CSP must, before activating a prepaid mobile carriage service, obtain information about, and verify the identity of, the purchaser or service activator.  

Notes on Sections

The provisions of the Determination, and how they operate, are described in Attachment A.

Statement of Compatibility with Human Rights

A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment B.


 

ATTACHMENT A

NOTES ON SECTIONS

Part 1 ¾ Preliminary

1.1        Name of Determination

Section 1.1 provides for the citation of the Determination as the Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2013.

1.2        Commencement

Section 1.2 provides that the Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.

1.3        Revocation of the Telecommunications (Service Provider - Identity Checks for Pre-paid Public Mobile Telecommunications Services) Determination 2000

Section 1.3 provides that the 2000 Determination is revoked.

1.4        Definitions

Section 1.4 provides definitions for terms used in the Determination. The definitions are broadly similar to those used in the 2000 Determination. Key differences of note are discussed below.

The term “activate”, in relation to a prepaid mobile carriage service, means to enable the service to be used for any communication in addition to communications between an end-user and the CSP and calls to an emergency call service. A prepaid mobile carriage service that is not activated cannot receive calls and can only be used to make calls to the CSP or to an emergency call service. Similarly, the term “deactivate”, in relation to a prepaid mobile carriage service, means to disable or prevent the service from being used for any communications, except for communications between an end-user and the CSP and calls to an emergency call service. The activation or deactivation of a prepaid mobile carriage service does not affect an end-user’s ability to make calls to the CSP or an emergency call service. Rather, it affects the end-user’s ability to make other types of calls.

The term “ADI” means an authorised deposit-taking institution within the meaning of subsection 5(1) of the Banking Act 1959. Under that Act, an authorised deposit-taking institution means a body corporate that has an authority under subsection 9(3) of that Act to carry on banking business in Australia.

The term “end-user equipment” means any customer equipment by which a prepaid mobile carriage service can be accessed for use by an end-user. This is a broad definition which covers, for example, Universal Integrated Circuit Cards (UICC) with Subscriber Identity Module (SIM) or Universal Subscriber Identity Module (USIM) functionality.

The term “entity” excludes an individual. Individual is defined in section 2B of the acts Interpretation Act 1901 to mean a natural person.

The term “government online verification service” means an online service which allows users to confirm the validity of information recorded on certain identification documents against the databases of the government agency that issued the relevant identification documents, in a manner authorised by that government agency or its representatives. The service may be used by a CSP where it has obtained from a service activator certain information in relation to a government document. A CSP that uses this method of identity verification relays the information to a government online verification service. The information is then matched against the databases held by the agency that issued the document and is either accepted or rejected as valid or not. The service does not result in the disclosure of any other information held by the agency. In this respect, it is a ‘blind check’. An example of a government online verification service is the national Document Verification Service.  

The term “post-paid carriage service” means a carriage service that is supplied by a CSP to a person where the service may be used fully or in part before payment for the supply of the service; and where the person has arranged with the CSP to pay either an amount notified in an invoice issued by the CSP, or instalments of fixed amounts at regular intervals (each of which is to be, or not to be, notified in an invoice), for the supply of the service.

The term “service activator” means the individual seeking to have a prepaid mobile carriage service activated by the CSP that supplies the service. The service activator may not necessarily be the purchaser, the customer (i.e. the individual to whom the service is supplied) or any other end-user of the service. While the service activator will, in most cases, be the customer, this definition covers any individual who requests a CSP to activate a prepaid mobile carriage service.

The term “stored value card” has the same meaning as in the Anti-Money Laundering and Counter- Terrorism Financing Act 2006. Under that Act, a stored value card means a card that does not include a debit or credit card but includes a portable device (other than a debit or credit card) that is capable of storing monetary value in a form other than physical currency or capable of being used to gain access to monetary value stored in such a form. This definition covers, for example, gift cards and other cards on which one of the following words or phrases may appear: prepaid, cash passport, travel card, travel money, load and go, reloadable, recharge, secure cash, Ezycash or cash card.

1.5            Prepaid mobile carriage services

Section 1.5 defines prepaid mobile carriage services for the purposes of the Determination. The definition distinguishes a prepaid mobile carriage service from a post-paid carriage service. The intention has been to retain the same scope of services as in the 2000 Determination.

1.6        References to carriage service provider

Section 1.6 provides that a reference to a CSP obtaining information from a purchaser or service activator and verifying the identity of a purchaser or service activator includes a reference to an authorised party doing those things for, or on behalf of, the CSP.

Part 2 ¾ Objects and application of Determination

2.1        Object of Determination

Section 2.1 sets out the objects of the Determination.

2.2        Application of Determination

Section 2.2 sets out the circumstances in which the Determination will apply to CSPs in relation to the supply of prepaid mobile carriage services. Subsection (2) provides that the rules in the Determination will not apply to a CSP in relation to a supply of a prepaid mobile carriage service to a person if it previously supplied the service to the person and, in relation to that previous supply, the CSP complied with the requirements set out in the Determination or the 2000 Determination. If, for example, a purchaser or service activator was previously supplied with a prepaid mobile carriage service by a CSP who had complied with the relevant requirements at the time and wants to recharge their UICC, the rules set out in the Determination do not apply in relation to the further supply of the service by the CSP.

2.3        Requirements that must be satisfied before service is activated

Section 2.3 provides that, unless an exemption provided by Part 3 applies, a CSP who supplies a prepaid mobile carriage service to a person must not activate that service unless the CSP has complied with the rules set out in Part 4 or 5, or in accordance with an approved compliance plan made under Part 6.

2.4        Obligations when using an authorised party

Section 2.4 provides that if a CSP uses an authorised party to sell or issue, for the CSP, an invitation to a person to use a prepaid mobile carriage service at no charge to that person, the CSP must ensure that the authorised party acts in a manner that enables the CSP to comply with its obligations under the Determination.

If an authorised party is used, the CSP is ultimately responsible for complying with the requirements of the Determination. This section ensures that the actions of the authorised party support the CSP in meeting those requirements.

Part 3 ¾ Exemptions from rules

3.1        Supplying prepaid mobile carriage services during emergencies

Part 3 exempts a CSP from the requirements set out in section 2.3 if an emergency occurs, the CSP proposes to supply a prepaid mobile carriage service to an exempt individual and all of the circumstances set out in subsection (2) apply.

The term “emergency” is defined in section 275C of the Telecommunications Act as an emergency or disaster (however described) within the meaning of an emergency law. Section 6 of the Telecommunications (Data for emergency warning systems) Instrument 2010 specifies the laws of each State and Territory that are emergency laws for the purposes of the definition. This definition may cover small-scale events, such as bush fires that might affect only a few properties in a defined geographic area, as well as large scale disasters. The definition may cover an emergency or disaster irrespective of whether that event has been officially ‘declared’ as a state of emergency.

An “exempt individual” is defined in Part 3 as an individual whose principal place of residence has been destroyed, rendered uninhabitable or made inaccessible as a result of an emergency.

Part 3 is intended to allow individuals who are adversely affected by an emergency to have access to prepaid mobile carriage services as soon as reasonably practicable in the circumstances.

Under subsection (2), the CSP must distribute end-user equipment (e.g. handset and UICC) to a person whom the CSP reasonably believes to be an exempt individual within 7 days of the emergency first occurring. The prepaid mobile carriage service which is to be accessed by means of this equipment may not be automatically activated prior to distribution. If that is the case, the exempt individual will be able to use the equipment to make a call to the CSP to have the service activated.

The end-user equipment can be distributed by the CSP itself, or it can arrange for the equipment to be distributed by an authorised party or an emergency assistance organisation on the condition that the party or organisation:

·         only distributes the equipment to a person whom it reasonably believes to be an exempt individual; and

·         obtains and records the name and residential address of the exempt individual unless it is not reasonably practicable to do so.

If the CSP distributes the equipment itself, it must obtain the name and residential address of the exempt individual who is provided with the equipment. If the CSP has arranged for the equipment to be distributed by an authorised party or emergency assistance organisation, the CSP must obtain the name and business address of the party or organisation and (if obtained by the party or organisation) the name and residential address of the exempt individual who is provided with the equipment. The Determination does not prescribe how the CSP must obtain the information. This gives the CSP some flexibility in deciding the most convenient way of fulfilling that obligation. The CSP may, for example, decide to obtain the information from the party or organisation via email or a spreadsheet. In addition, the Determination does not require the CSP to verify any of the information so obtained.

A prepaid mobile carriage service supplied under Part 3 can only remain activated for a maximum of 30 days, unless the ACMA approves a longer period in writing. An individual who was supplied with a service which has been deactivated in accordance with that requirement may request that a new service be activated. The CSP is not obliged to accept such a request. However, before activating any new service, the CSP will be required to comply with the rules set out in Part 4 or 5 or in accordance with an approved compliance plan made under Part 6.

The CSP is also required to keep a register of the prepaid mobile carriage services it supplies under Part 3. The information that must be recorded on that register is set out in subsection (4). This obligation is in addition to a CSP’s obligation to keep records under Part 7.  

Part 4 ¾ Rules for obtaining information and verifying identity at time of sale

Part 4 is largely the same as Part 3 of the 2000 Determination. This Part allows a CSP to continue to obtain certain information from, and verify the identity of, a purchaser of a prepaid mobile carriage service at the time of sale. If a CSP does not comply with the rules set out in this Part, it must comply with the rules set out in Part 5 or in accordance with an approved compliance plan made under Part 6, unless an exemption provided by Part 3 applies.

4.1        Application of Part 4

Section 4.1 provides that Part 4 sets out the rules with which a CSP must comply if paragraph 2.3(a) is to apply in relation to the supply of a prepaid mobile carriage service. If the CSP complies with those rules, it may activate the service.

4.2        Requirements to be satisfied before service is activated

Section 4.2 provides that, before activating the prepaid mobile carriage service, the CSP must, at the time of sale, obtain information about the purchaser in accordance with section 4.3 and verify the identity of the purchaser in accordance with section 4.4 or 4.5.

4.3        Information to be obtained from purchaser

Section 4.3 requires the CSP to obtain certain information from the purchaser of the prepaid mobile carriage service. The information that must be obtained varies depending on whether the purchaser is an individual or entity. If the purchaser is an individual, the CSP must obtain the information mentioned in Part 1 of Schedule 1. If the purchaser is an entity, the CSP must obtain the information mentioned in Part 2 of Schedule 1.

Subsection (2) provides that the purchaser may give the information to the CSP orally or by showing the CSP a document stating the information.

4.4        Verification of identity of purchaser — payment otherwise than by credit card or debit card

Section 4.4 sets out how the CSP must verify the identity of the purchaser of a prepaid mobile carriage service where the purchaser is an individual who pays for the service otherwise than by credit card or debit card. This section covers circumstances where an individual wishes to pay for the service by cash, cheque, a payment facility such as PayPal, or stored value card.

The Determination requires the CSP to ask the purchaser whether activation of the service will result in the purchaser having 5 or more activated prepaid mobile carriage services.

The Determination does not require the CSP to obtain proof of the information obtained in this regard. However, if the purchaser informs the CSP that they will not have 5 or more activated services, the CSP must see the documents described in subsection (3). If the purchaser informs the CSP that they will have 5 or more activated services, the CSP must see the documents described in subsection (4).

Subsection (5) requires the CSP to be satisfied that any document shown to it which includes an expiry date has not expired.

If the CSP complies with section 4.4, the CSP is taken to have verified the identity of the purchaser in accordance with that section.

4.5        Verification of identity of purchaser — payment by credit card or debit card

Section 4.5 sets out how the CSP must verify the identity of the purchaser of a prepaid mobile carriage service where the purchaser is an individual who offers to pay for the service using a credit card or debit card.

The Determination requires the CSP to ask the purchaser whether activation of the service will result in the purchaser having 5 or more activated prepaid mobile carriage services. The Determination does not require the CSP to obtain proof of the information obtained in this regard.  If the purchaser informs the CSP that they will not have 5 or more activated services, the CSP is not required to take any further steps to verify the identity of the purchaser. If the purchaser informs the CSP that they will have 5 or more activated services, the CSP must see the documents described in subsection (4).

Subsection (5) requires the CSP to be satisfied that any document shown to it which includes an expiry date has not expired.

If the CSP complies with section 4.5, the CSP is taken to have verified the identity of the purchaser in accordance with that section.

Part 5 ¾ Rules for obtaining information and verifying identity at time of activation

Division 5.1      General

5.1        Application of Part 5

Part 5 sets out the rules with which a CSP must comply if paragraph 2.3(b) is to apply in relation to the supply of a prepaid mobile carriage service. If the CSP complies with those rules, it may activate the service.

5.2        Requirements to be satisfied before service is activated

Subsection (1) provides that, before activating the prepaid mobile carriage service, the CSP must obtain information in relation to the service activator in accordance with Division 5.2 and verify the identity of the service activator in accordance with Division 5.3.

In most cases, the CSP will only be able to activate the service once it has verified the identity of the service activator. However, the CSP can, in accordance with subsection 5.5(1) and Column B of item 5 of Schedule 4, temporarily activate the service beforehand for the purposes of confirming whether certain identifying evidence obtained about the service activator is authentic, accurate and up-to-date. Subsection (2) acknowledges that the obligations of the CSP under subsection (1) would not be taken to have been breached to the extent that it has temporarily activated the service in such circumstances.

Column B of item 5 of Schedule 4 describes a method of identity verification which may be used by the CSP where identifying evidence obtained from the service activator includes details of an account (other than an account connected to a stored value card) with an ADI in their name. If the method is used, the CSP will make a nominal transaction to the service activator’s bank account by way of bank account transfer to determine if the account is active. After receiving a transaction code at the time of making the nominal transaction, the CSP will arrange for temporary activation of the prepaid mobile carriage service for a period of 2 business days. During that time, the nominal transaction should be processed and, if the account does not exist, the transaction will be rejected or refunded and notified to the CSP’s account. The CSP may confirm that the account is active if, during that time, the transaction is not rejected or refunded. Where that occurs, the CSP is taken to have confirmed that the identifying evidence is authentic, accurate and up-to-date.  

The CSP will be subject to some additional record keeping requirements in relation to the temporary activation of the service (see subparagraph 7.1(2)(f)(iv)).

Division 5.2      Information to be obtained in relation to service activator

5.3        Information to be obtained in relation to service activator

Section 5.3 requires the CSP to obtain the information mentioned in Part 3 of Schedule 1 in relation to the service activator.

Division 5.3      Verification of identity

5.4        Obtaining identifying evidence about service activator

Section 5.4 requires the CSP to obtain at least one piece of identifying evidence (mentioned in Schedule 3) about the service activator for the purposes of verifying the identity of the service activator in accordance with section 5.5.

5.5        Verification of identity of service activator

Section 5.5 provides that the CSP is taken to have verified the identity of the service activator if, using one of the methods of identity verification described in column B of Schedule 4, the CSP has confirmed that the identifying evidence obtained under section 5.4 is authentic, accurate and up-to-date.

Part 6 ¾ Alternative method for obtaining information and verifying the identity of purchasers and service activators

6.1        Application of Part 6

Part 6 sets out the requirements for the preparation, approval and amendment of a compliance plan and the circumstances in which an approved compliance plan may be revoked.

A CSP must comply with an approved compliance plan if paragraph 2.3(c) is to apply in relation to the supply of a prepaid mobile carriage service. If the CSP complies with an approved compliance plan, it may activate the service.

6.2        Preparation, approval and amendment of compliance plan

Section 6.2 provides that the CSP must prepare, and apply to the ACMA for approval of, a compliance plan, and, if the CSP wishes to amend an approved compliance plan it must apply to the ACMA for approval of the amendment.

6.3        Content of compliance plan

Section 6.2 requires a compliance plan to be in writing and to contain the information specified in subsection (2).

6.4        Approval of compliance plan

Section 6.4 outlines the process that must be followed by the ACMA where it receives an application from a CSP for approval of a compliance plan.

6.5        Approval of amendments of approved compliance plan

Section 6.5 outlines the process that must be followed by the ACMA where it receives an application from a CSP to amend an approved compliance plan.

6.6        Requirement to comply with approved compliance plan

Section 6.6 requires a CSP to comply with an approved compliance plan in relation to obtaining and, if required, verifying the identity of, the purchaser or service activator in relation to a prepaid mobile carriage service covered by the plan.

6.7        Revocation of approved compliance plan — by carriage service provider

Section 6.7 provides that a CSP may revoke an approved compliance plan by giving the ACMA written notice of the revocation.

Once an approved compliance plan has been revoked, the CSP must comply with Part 4 or 5, unless an exemption provided by Part 3 applies.

6.8        Revocation of approved compliance plan — by the ACMA

Section 6.8 outlines the process that must be followed by the ACMA where it intends to revoke an approved compliance plan.

Before revoking an approved compliance plan, the ACMA must be satisfied, on reasonable grounds, that the CSP has not complied with the approved compliance plan to a significant extent.

Part 7 ¾ Records

7.1        Carriage service provider to keep records of prepaid mobile carriage services supplied

Section 7.1 requires that a CSP keep records in relation to each prepaid mobile carriage service supplied by the CSP.

Subsection (2) sets out the information that a CSP must include in such records. Where a CSP has, in accordance with subsection 5.5(1) and Column B of item 5 of Schedule 4, temporarily activated a prepaid mobile carriage service, the CSP is required to record additional information set out at subparagraph (f)(iv).

Subsection (3) requires the CSP to keep the records for as long as the service is activated.

7.2        Record of arrangements

Section 7.2 requires a CSP who supplies a prepaid mobile carriage service to keep a written description of the arrangements that it has in place to comply with the Determination.

7.3        Restrictions on the recording and copying of certain information

Section 7.3 restricts a CSP from recording or copying the identifying number of a government document or a credit card or debit card number. It also restricts a CSP from recording or copying any of the documents mentioned in Schedule 2.

Subparagraph (1)(b)(i) provides that a CSP may record the last four digits of a credit card or debit card number, in accordance with sub-sub-paragraph 7.1(2)(e)(iii)(B).

Subparagraph (1)(b)(ii) provides that a CSP may record a credit card or debit card number if the circumstances in subsection (2) exist. Subsection (2) provides that a CSP may record the identifying number of a government document or a credit card or debit card number where the recording of that information is for a purpose that is ancillary or incidental to the CSP’s obligation to verify the identity of the service activator at the time of activation of the service in accordance with Part 5. This recognises that some IT systems used by CSPs, in the course of the identity-checking process, can record certain identifying numbers for a temporary period. However, a CSP that records the identifying number of a government document or a credit card or debit card number in accordance with subsection (2) must, immediately after the CSP has verified the service activator’s identity, destroy the number.

Subparagraph (1)(b)(iii) provides that a CSP may record a credit card or debit card number if the purchaser or service activator, as the case may be, consents to the recording of that information for the purpose of enabling payments for the future supply of the service to be made (such as the automatic recharge of a UICC sold or given to that person in relation to an existing supply of the service).

Subsection (3) prohibits a CSP from reproducing any document that contains the information which must not be recorded because of subsection (1).

Part 8 ¾ Continued use of numbers

8.1        Renewal of activation of prepaid mobile carriage service

Subsection (1) provides that section 8 applies where:

·         a prepaid mobile carriage service was supplied to a person (the service user) and activated before the commencement of the Determination;

·         the CSP that supplied the service had not, in relation to the supply, complied with the requirements in the Telecommunications (Conditions for Allocation of Numbers) Determination 1997, the Telecommunications (Service Provider — Identity Checks for Pre‑paid Carriage Services) Determination 1997 or the 2000 Determination; and

·         the service has been deactivated as a result of the service not being used.

Subsection (2) provides that if, after the commencement of the Determination, a service user applies for renewal of the activation of the service, the CSP must, before renewing the activation of the service, comply with Part 5 or an approved compliance plan in force in relation to the CSP.

Part 9 ¾ Restriction on use of numbers

9.1        Restriction because carriage service provider has reasonable grounds for suspecting that records contain false or misleading information

Section 9.1 provides that a CSP must not allow a person to use a number issued in connection with a prepaid mobile carriage service if the CSP has reasonable grounds for suspecting that the records kept by the CSP in relation to the service contain false or misleading information.

9.2        Restriction at request of criminal law-enforcement agency

Section 9.2 provides that a CSP must not allow a person to use a number issued in connection with a prepaid mobile carriage service if the CSP has received a written request from an authorised law enforcement officer not to allow the person to use the number because the action is necessary for a purpose mentioned in subsection 313(3) or (4) of the Telecommunications Act.

Subsections 313(3) and (4) of the Telecommunications Act impose requirements on carriers, CSPs and carriage service intermediaries to give officers and authorities of the Commonwealth and of the States and Territories such help as is reasonably necessary for the purposes of enforcing the criminal law and laws imposing pecuniary penalties, protecting the public revenue, safeguarding national security and assisting the enforcement of the criminal laws in force in a foreign country.

9.3        Carriage service provider to provide information about effect of this Part

Section 9.3 requires a CSP to inform a purchaser of a prepaid mobile carriage service supplied by the CSP, and a service activator who seeks to have the service activated, of the effect of Part 9.

Schedule 1 ¾ Information to be obtained for Parts 4, 5 and 6

Schedule 1 mentions the information that must be obtained by a CSP under subsection 4.3(1), section 5.3 and paragraph 6.3(2)(d), before activating a prepaid mobile carriage service.

Schedule 2 ¾ Documents for verification of identity of purchasers at time of sale

Schedule 2 mentions the documents that a CSP can see for the purposes of verifying a purchaser’s identity at the time of sale, as required by sections 4.4 and 4.5. Two categories of documents are mentioned in the Schedule – Category A documents and Category B documents. The number and categories of documents that must be seen by the CSP will depend on how the purchaser chooses to pay for the prepaid mobile carriage service and whether (or not) activation of the service will result in the purchaser having 5 or more activated prepaid mobile carriage services.

A CSP must not, in connection with a requirement imposed by the Determination, record or copy any of the documents mentioned in Schedule 2, as required by paragraph 7.3(1)(c).

Schedule 3 ¾ Identifying evidence for verification of identity at time of activation

Schedule 3 specifies the identifying evidence about a service activator which a CSP must obtain for the purposes of verifying the identity of the service activator, as required by section 5.4.

Schedule 4 ¾ Approved methods for verification of identity at time of activation

Schedule 4 describes the approved methods of identity verification in relation to a service activator. A CSP must use one of those methods to confirm whether identifying evidence obtained about the service activator is authentic, accurate and up-to-date, as required by section 5.5.

 


 

ATTACHMENT B

                                        Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2013

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Background

Subsection 99(1) of the Telecommunications Act 1997 (the Telecommunications Act) provides that the Australian Communications and Media Authority (ACMA) may make a written determination setting out rules that apply to service providers in relation to the supply of either or both specified carriage services or specified content services, which are called service provider determinations. Subsection 99(3) of the Telecommunications Act provides that the ACMA must not make a service provider determination unless the determination relates to a matter specified in the regulations or in section 346 (which relates to disaster plans).

The relevant enabling regulations are the Telecommunications Regulations 2001 (the Telecommunications Regulations).

The Telecommunications Regulations were amended by the Telecommunications Amendment Regulation 2012 (No.2) in December 2012 primarily to provide the ACMA with a greater degree of discretion in the matters to which a service provider determination can relate and to allow the ACMA to introduce new ways in which the identity of a customer of a prepaid mobile carriage service can be verified.

Overview of the Legislative Instrument

The Legislative Instrument aims to:

·         assist law enforcement and national security agencies (the relevant agencies) in identifying the purchasers or service activators of prepaid mobile carriage services for the purposes of their investigations by ensuring that carriage service providers (CSPs):

o    obtain and record specified information about those persons; and

o    if necessary, verify the identity of those persons;

·         protect the privacy of individuals by ensuring that CSPs obtain only the minimum amount of information that is reasonably necessary to assist the relevant agencies and by imposing restrictions on the collection, recording and copying of personal information in the identity-checking process; and

·         provide CSPs with a range of new methods which can be used to verify the identity of purchasers and service activators.

These new methods allow CSPs to verify the identity of a purchaser or service activator online or over the telephone, as well as in person, at the time of sale or activation of a prepaid mobile carriage service.

Where a CSP verifies the identity of a service activator at the time of activation of the service, the Legislative Instrument imposes new record keeping requirements in that regard. These include recording:

·         personal details of the service activator, such as name and date of birth;

·         a description of the method of identity verification used by the CSP; and

·         the verification transaction details for that method.

CSPs will be required to keep records for as long as the prepaid mobile carriage service is activated, but are prohibited from recording or copying the identifying number of a government document or a credit card or debit card number unless certain circumstances exist.

 

Human rights implications

Right to freedom from arbitrary or unlawful interference with privacy

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) (and Article 16 of the Convention on the Rights of the Child and Article 22 of the Convention on the Rights of Persons with Disabilities) protects the right to freedom from unlawful or arbitrary interference with privacy. Certain provisions in the Legislative Instrument could be considered to limit the right to privacy. However, the right to privacy is not an absolute right and a limitation is not incompatible with the right itself.

The Legislative Instrument authorises the collection, use and storage of personal information. However, to the extent that the Legislative Instrument could be said to authorise an interference with privacy, that interference will be neither unlawful nor arbitrary. It will not be unlawful because the collection, use and storage of personal information, which is provided for and circumscribed by the Determination, is authorised by the Telecommunications Regulations. It will not be arbitrary because the Legislative Instrument specifies only the minimum amount of personal information that is reasonably necessary to assist with the legitimate objectives of law enforcement and national security. The Legislative Instrument also imposes restrictions on the collection, recording and copying of personal information in the identity-checking process.

In addition to those restrictions, Part 13 of the Telecommunications Act is directed at protecting the confidentiality of (among other things) personal information held by CSPs. The disclosure or use of such information is prohibited except in limited circumstances, such as for purposes relating to the enforcement of the criminal law, assisting the ACMA to carry out its functions or powers, or providing emergency warnings. Part 13 also imposes a range of record-keeping requirements on CSPs in relation to authorised disclosures or uses of information. The Information Commissioner has the function of monitoring compliance with, and reporting to the Minister, in relation to these record-keeping requirements, and on whether the records indicate compliance with limitations imposed on disclosure and use of personal information held by CSPs.

Some CSPs are also subject to the Privacy Act 1988 in relation to the personal information they handle in accordance with the Legislative Instrument. The Legislative Instrument is expected to enhance the privacy protections afforded to individuals in the following ways:

  • customers of prepaid mobile carriage services are provided with a range of choices about how their identity can be verified; and
  • restrictions on the collection, recording and copying of personal information in the identity-checking process are imposed.

These safeguards, together with the other restrictions on the handling of personal information described above, indicate that the Legislative Instrument is reasonable, necessary and proportionate to the objectives of law enforcement and national security.

Right to freedom of expression

Article 19(2) of the ICCPR (and Article 13 of the Convention on the Rights of the Child and Article 21 of the Convention on the Rights of Persons with Disabilities) protects the right to freedom of expression, including the right to seek, receive and impart information and ideas through any media of a person’s choice. However, this right is subject to certain restrictions, including the protection of national security or public order. Protection of public order includes law enforcement.

Where a CSP prevents the use of a prepaid mobile carriage service (because the CSP has been unable to verify a user’s identity) under the Legislative Instrument, this may affect a person’s right to freedom of expression.

One of the objectives of the Telecommunications Act, and the Legislative Instrument, is to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States or Territories. This objective goes to law enforcement and preventing threats to national security.

Requiring persons who use telecommunications networks and facilities to disclose their identity is one basic and crucial way to minimise the risk of telecommunications networks from being used in, or in relation to, the commission of offences. It also assists relevant agencies to identify and apprehend persons who do use, or attempt to use, telecommunications networks and facilities in, or in relation to, the commission of offences. The Legislative Instrument is, in this respect, a reasonable, necessary and proportionate restriction on the freedom of expression.

Preventing the use of a prepaid mobile carriage service by a person in circumstances where an authorised law enforcement officer considers that it is necessary to prevent unlawful activity or to enforce the criminal law is also a reasonable, necessary and proportionate restriction on the freedom of expression.

The Legislative Instrument is expected to enhance the freedom of expression of certain groups of people (such as minors and people affected by emergencies) by expanding the range of ways in which they can verify their identity to acquire prepaid mobile carriage services. It is anticipated that under the Legislative Instrument 99 per cent of customers of prepaid mobile carriage services will be able to verify their identity online or over the telephone, as well as in person.

Conclusion

This Legislative Instrument is compatible with human rights. Any interference with privacy is neither unlawful nor arbitrary. The restrictions imposed on freedom of expression are reasonable, necessary and proportionate to give effect to the legitimate objectives of law enforcement and national security.

 

Australian Communications and Media Authority