EXPLANATORY STATEMENT
Telecommunications (Data for emergency warning systems) Instrument 2016
Issued by the authority of the Attorney-General
Sections 276 and 277 of the Telecommunications Act 1997 (the Act) prohibit the disclosure or use of information obtained by telecommunications carriers in the course of providing their services. This prohibition extends to the disclosure and use of information held in the Integrated Public Number Database (IPND), which is an industry-wide database of all residential and business telephone numbers (listed and unlisted) and associated subscriber information.
The Act provides for particular exceptions to the prohibition on disclosure. One such exception relates to the operation of Emergency Alert, the national telephone warning system used by emergency services to send voice messages to landlines and text messages to mobile phones within a defined area about likely or actual emergencies.
Section 285A of the Act provides that IPND information may be disclosed to an emergency management person where that disclosure is made for purposes connected with alerting members of the public to an emergency. Section 295V of the Act provides that the emergency management person may use and disclose that IPND information to alert members of the public to an emergency.
Section 275B(1) of the Act provides that emergency management person means an office or position referred to in a State or Territory law specified in a legislative instrument issued by the Attorney‑General under section 275B(2).
Section 275C of the Act provides that an emergency means an emergency or disaster within the meaning of an emergency law.
Section 275D(1) of the Act provides that an ‘emergency law’ means a law of a State or Territory referred to in an instrument issued by the Attorney-General under section 275D(2) of the Act.
The Telecommunications (Data for emergency warning systems) Instrument 2016
(the Instrument) gives effect to sections 275B and 275D of the Act. It revokes the Telecommunications (Data for emergency warning systems) Instrument 2010 and implements a new instrument to accommodate changes to titles and functions of State and Territory emergency management persons and emergency laws since 2010. This will ensure States and Territories can continue to access and use information held in the IPND to issue emergency warnings to the public.
Relevant Commonwealth and State and Territory agencies with emergency management responsibilities have been consulted in the drafting of the Instrument.
Consistent with subsection 275B(5) of the Act, the Attorney-General has consulted with the Minister for Communications in the making of this Instrument.
The Statement of Compatibility with Human Rights set out in the attachment is prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Act specifies no conditions that need to be satisfied before the power to make the Instrument may be exercised.
The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
The Instrument commences on the day after it is registered on the Federal Register of Legislation.
Details of the Telecommunications (Data for emergency warning systems) Instrument 2016
Section 1 – Name of Instrument
This section provides that the name of the Instrument is the Telecommunications (Data for emergency warning systems) Instrument 2016.
Section 2 – Commencement
This section provides that the Instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 – Revocation
This section provides that the Telecommunications (Data for Emergency Warning Systems) Instrument 2010 is revoked.
Section 4 – Definitions
Section 4 sets out definitions for the purposes of the Instrument.
Section 5 – Emergency management persons
Section 5 specifies positions under State and Territory laws that are emergency management persons for the purposes of the Act.
Section 6 – Emergency laws
Section 6 specifies State and Territory laws that are emergency laws for the purposes of the Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
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.
Overview of the Legislative Instrument
Sections 276 and 277 of the Telecommunications Act 1997 (the Act) prohibit the disclosure or use of information obtained by telecommunications carriers in the course of providing their services. This prohibition extends to the disclosure and use of information held in the Integrated Public Number Database (IPND), which is an industry-wide database of all residential and business telephone numbers (listed and unlisted) and associated subscriber information.
There is a specific exception to these prohibitions in section 285A of the Act, which permits disclosure of information from the IPND to an emergency management person, where the use or disclosure is connected with warning members of the public about an emergency. Section 275C of the Act defines an emergency as an emergency or disaster (however described) within the meaning of an emergency law.
Section 275B(2) of the Act provides that the Attorney-General may make a legislative instrument specifying particular offices or positions as emergency management persons for the purposes of the Act. Section 275D(2) of the Act further provides that the Attorney‑General may make a legislative instrument specifying a state or territory law as an emergency law for the purposes of the Act. The Telecommunications (Data for emergency warning systems) Instrument 2016 (the 2016 Instrument) gives effect to these provisions of the Act.
The purpose of the 2016 Instrument is to revoke the Telecommunications (Data for emergency warning systems) Instrument 2010 (2010 Instrument) and incorporate recent changes to the titles and functions of offices and positions, and changes to emergency laws, of the States and Territories.
Introduction of the 2016 Instrument will ensure the relevant public officials can continue to fulfil their important public safety function of issuing emergency warnings to the public by telephone under the Emergency Alert system in the event of an emergency.
Human Rights Implications
The Instrument engages the following human rights:
- The right to life – Article 6 of the International Covenant on Civil and Political Rights (ICCPR); and
- The right to protection against arbitrary or unlawful interference with privacy – Article 17 of the ICCPR.
The right not to be arbitrarily or unlawfully deprived of life
Article 6 of the ICCPR includes a duty on governments to take appropriate steps to protect the right to life of those within its jurisdiction. This Instrument engages and promotes the right to life by providing for the lawful issuance of telephone-based warnings in an actual or likely emergency situation where lives may be at risk, such as bushfires or floods. The objective of the 2016 Instrument is to ensure that the appropriate officials are properly authorised to issue telephone-based emergency warnings in a manner consistent with jurisdictional emergency laws. These warnings support response efforts by governments and empower individuals to take informed action to protect their personal safety.
Protection against arbitrary or unlawful interference with privacy
Article 17 of the ICCPR protects against arbitrary or unlawful interference with a person’s privacy, family, home or correspondence. The right in Article 17 may be subject to permissible limitations, provided they are authorised by law and not arbitrary.
Disclosure of IPND information to an emergency management person
Section 285A of the Act provides for the disclosure of otherwise protected IPND information to an authorised official—an emergency management person—for purposes limited to alerting persons to an emergency or likely emergency as defined by State and Territory laws, or the reasonable testing of emergency alerting in that regard.
Use of IPND information by an emergency management person
The Act strictly regulates how and in what circumstances an emergency management person may use and further disclose IPND information. Section 295V of the Act provides that emergency management persons may only use and further disclose IPND information
(except for a person’s name) for the purpose of issuing warnings in an actual or likely emergency, as defined by specified State and Territory emergency laws, or for a related purpose, such as testing the system. Section 295W of the Act imposes the same obligations on persons receiving IPND information from an emergency management person under section 295V. Misuse of IPND information is an offence under the Act. Under section 295Z, an emergency management person is liable to two years’ imprisonment if they use or disclose the protected IPND information in a manner inconsistent with the Act. Section 295ZA of the Act applies an equivalent offence provision to a person who misuses IPND information received from an emergency management person.
Practical measures are also in place to further protect the confidentiality of information in the IPND. Emergency management persons do not view or store IPND information, but access an interface to the ‘Emergency Alert’ system that automatically engages the relevant telephone numbers registered to, or located within, a particular geographic location to issue emergency warnings. The IPND information is engaged only temporarily for the purpose of issuing emergency warnings in response to a discrete threat, or to test the system.
These legal and practical protections ensure that IPND information is used only for strictly prescribed purposes and in defined circumstances. To the extent that the measures in the 2016 Instrument limit the right to privacy, they are lawful and non-arbitrary, providing only for fulfilment of an important public safety purpose. The 2016 Instrument, and the provisions it gives effect to in the Act, are reasonable and proportionate and permissibly limit the right to privacy in Article 17 of the ICCPR.
Conclusion
The Instrument is compatible with human rights. To the extent that it limits any human rights, those impacts are reasonable, necessary and proportionate.
Senator the Hon George Brandis QC
Attorney-General