Telecommunications (Data for emergency warning systems) Instrument 2020

EXPLANATORY STATEMENT

Telecommunications (Data for emergency warning systems) Instrument 2020

Issued by the authority of the Minister for Home Affairs, Peter Dutton

1. The Telecommunications (Data for emergency warning systems) Instrument 2020 (the Instrument) is made under subsections 275B(2) and 275D(2) of the Telecommunications Act 1997 (the Act).
2. The purpose of the Instrument is to repeal the Telecommunications (Data for emergency warning systems) Instrument 2016 and implement a new instrument to accommodate changes to titles and functions of State and Territory emergency management persons and emergency laws since 2016. This Instrument will ensure States and Territories can continue to access and use information held in the Integrated Public Number Database (IPND),  to issue emergency warnings to the public.
3. Sections 276 and 277 of 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 IPND, which is an industry-wide database of all residential and business telephone numbers (listed and unlisted) and associated subscriber information.
4. 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. 
5. 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.
6. Section 275B of the Act provides that emergency management person means a person who holds, occupies or performs the duties of an office or position in the legislative instrument issued by the AFP Minister under this section. 
7. Section 275C of the Act provides that an emergency means an emergency or disaster within the meaning of an emergency law.
8. Subection 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 AFP Minister under section 275D(2) of the Act.
9. Section 1 of the Instrument provides that the name of the Instrument is the Telecommunications (Data for emergency warning systems) Instrument 2020.
10. Section 2 of the Instrument provides that it commences on the day after it is registered.
11. Section 3 of the Instrument provides that the Instrument is made under subsections 275B(2) and 275D(2) of the Act.
12. Section 4 of the Instrument sets out the definitions for the purposes of the Instrument.
13. Section 5 of the Instrument provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
14. Section 6 of the Instrument specifies positions under State and Territory laws that are emergency management persons for the purposes of subsection 275B(2) of the Act.
15. Section 7 of the Instrument specifies State and Territory laws that are emergency laws for the purposes of subsection 275D(2) of the Act.
16. Schedule 1 to the Instrument repeals the Telecommunications (Data for emergency warning systems) Instrument 2016.
17. Relevant Commonwealth and State and Territory agencies with emergency management responsibilities have been consulted in the drafting of the Instrument.
18. Consistent with subsection 275B(5) of the Act, Minister Dutton has consulted with the Minister for Communications, Cyber Safety and Arts, Paul Fletcher 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.
19. The Act specifies no other conditions that need to be satisfied before the power to make the Instrument may be exercised.
20. The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
21. The Instrument commences on the day after it is registered on the Federal Register of Legislation.

Statement of Compatibility with Human Rights

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

The Telecommunications (Data for emergency warning systems) Instrument 2020

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 legislative instrument

The Telecommunications (Data for emergency warning systems) Instrument 2020 (the Instrument) is made under subsections 275B(2) and 275D(2) of the Telecommunications Act 1997 (the Act). The purpose of this instrument is to revoke the Telecommunications (Data for emergency warning systems) Instrument 2016 and implement a new instrument to accommodate changes to titles and functions of State and Territory emergency management persons and emergency laws since 2016.  

Sections 276 and 277 of 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 Minister administering the Australian Federal Police Act 1979 (the AFP Minister) 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 AFP Minister may make a legislative instrument specifying a state or territory law as an emergency law for the purposes of the Act.  This Instrument gives effect to these provisions of the Act.

The Instrument will ensure the relevant public officials can continue to fulfil their important public safety function of issuing emergency warnings to the public under the Emergency Alert system, the national telephone warning system used to send voice messages to landlines and text message to mobile phones within a defined area in the event of a likely or an actual emergency.

Human rights implications

This Legislative 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, floods or national security incidents. The objective of the Instrument is to ensure that the appropriate officials are properly authorised to issue telephone-based emergency warnings in a manner consistent with State and Territory emergency laws. These warnings support response efforts by State, Territory and Commonwealth 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.  The Act provides safeguards to protect personal information and only allows the use and disclosure of IPND information in limited circumstances aimed at protecting public safety.  The Instrument will update the relevant State and Territory emergency management persons and emergency laws to reflect changes since 2016 in order to ensure the appropriate persons are authorised to access IPND information under the Act.

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 alerts related to that purpose.

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 Instrument limit the right to privacy, they are lawful and non-arbitrary, as they are reasonable, necessary and proportionate to achieve the legitimate aim of protecting public safety.  The Instrument, and the provisions it gives effect to in the Act, permissibly limit the right to privacy in Article 17 of the ICCPR.

Conclusion

The Instrument is compatible with human rights as it promotes the right to life under Article 6 of the ICCPR. To the extent that it limits the right to privacy under Article 17 of the ICCPR,   these limitations are reasonable, necessary and proportionate.