EXPLANATORY STATEMENT
Issued by authority of the Minister for Emergency Management
Telecommunications Act 1997
Telecommunications (Emergency Management Person and Emergency Law) Instrument 2024
Authority
- The Telecommunications (Emergency Management Person and Emergency Law) Instrument 2024 is made under subsections 275B(2) and 275D(2) of the Telecommunications Act 1997 (the Act).
Purpose
2. The purpose of the Instrument is to support and maintain arrangements for relevant State and Territory authorities to access and use information held in the Integrated Public Number Database (IPND) to issue emergency warnings to the public. The Instrument reflects current titles and related details of offices and positions of key emergency management personnel (at the time of making the Instrument) for the purposes of section 275B of the Act, across Commonwealth, State and Territory jurisdictions. The Instrument also specifies relevant emergency laws across jurisdictions for the purposes of section 275D of the Act.
Background
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. Subsection 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. The references to the AFP Minister in subsections 275B(2) and 275D(2) in the Telecommunications Act 1997 were substituted for the Minister for Emergency Management by the Acts Interpretation Amendment Substituted Reference Order 2022 at Schedule 1.
Consultation
10. Consistent with s 275B(2) of the Act, the Minister for Communications was consulted on the proposed changes to the offices and positions specified as ‘emergency management person’ in this instrument. The Minister had no concerns with the changes proposed.
11. Each state and territory was consulted via the Australia-New Zealand Emergency Management Committee. Relevant agencies were invited to review and either update relevant offices and positions specified as emergency management person, or confirm no change is required.
12. The Office of Impact Analysis was consulted prior to making this instrument and advised that an impact analysis was not required. The OIA reference number is OIA24-07216.
Details of the Instrument
13. Section 1 of the Instrument provides that the name of the Instrument is the Telecommunications (Emergency Management Person and Emergency Law) Instrument 2024.
14. Section 2 of the Instrument provides that it commences on the day after it is registered on the Federal Register of Legislation.
15. Section 3 of the Instrument provides that the Instrument is made under subsections 275B(2) and 275D(2) of the Act.
16. Section 4 of the Instrument refers to the Schedule to the Instrument to set out the offices or positions across jurisdictions that are specified for the purposes of the definition of ‘emergency management person’ in subsection 275B(1) of the Act.
17. Section 5 of the Instrument specifies certain laws for the purposes of the the definition of emergency law in subsection 275D(1) of the Act.
18. Section 6 of the Instrument provides for the repeal of the Telecommunications (Data for emergency warning systems) Instrument 2020 (F2020L01422). This repeal ensures that it is clear the Instrument specifies updated details of relevant offices, positions and laws, at the time the Instrument was made – and replaces the 2020 Instrument.
19. The Schedule to the Instrument specifies positions and offices for the purposes of the definition of ‘emergency management person’ in subsection 275B(1) of the Act.
Parliamentary scrutiny
20. The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.
21. Instruments made under subsections 275B(2) and 275D(2) of the Telecommunications Act 1997 are disallowable.
22. A Statement of Compatibility with Human Rights is set out in Attachment A.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Emergency Management Person and Emergency Law) Instrument 2024
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Instrument
The Telecommunications (Emergency Management Person and Emergency Law) Instrument 2024 (the Instrument) is made under subsections 275B(2) and 275D(2) of the Telecommunications Act 1997 (the Act). The purpose of the Instrument is to revoke the Telecommunications (Data for emergency warning systems) Instrument 2020 and implement a new instrument to accommodate changes to titles and functions of State and Territory emergency management persons and emergency laws since 2020.
Sections 276 and 277 of the Act prohibit the disclosure or use of information obtained by telecommunication 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 a centralised 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.
Sections 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.
For the purposes of section 275B(2) and 275D(2) of the Act, Schedule 1 of the Acts Interpretation Amendment Substituted Reference Order 2022, substituted the AFP minister with the Minister for Emergency Management.
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 messages to mobile phones within a defined area in the event of a likely or actual emergency.
Human rights implications
The Disallowable Legislative Instrument engages the following 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 2020 in order to ensure the appropriate persons are authorised to access IPND information under the Act.
Disclosure of IPND information to an emergency management persons
- 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 emergency 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 Disallowable Legislative 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.
Senator the Hon Murray Watt
Minister for Emergency Management