EXPLANATORY STATEMENT
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Communications Access Co-ordinator) AMENDMENT Instrument 2018
(Subsection 6R(2))
- This instrument is made under subsection 6R(2) of the Telecommunications (Interception and Access) Act 1979 (the Act).
- The instrument amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2018 under subsection 33(3) of the Acts Interpretation Act 1901, which states that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
- The amendment in Schedule 1 amends a description of an organisational unit in the Department of Home Affairs. Currently paragraph 6(2)(b) specifies the SES2 position in the National Security and Law Enforcement Policy Branch, however, this is amended to refer to the National Security and Law Enforcement Policy Division. This amendment does not change the position specified.
- In accordance with paragraph 15J(2)(e) of the Legislation Act 2003, consultation was not necessary. This instrument makes minor typographical amendments to the instrument and does not alter existing arrangements.
- The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 24576).
- Under section 42 of the Legislation Act 2003, this instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights is included at Attachment A.
- The instrument commences on the day after it is registered.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Interception and Access) (Communications Access Co-Ordinator) Amendment Instrument 2018 (LIN 18/202)
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
The Telecommunications (Interception and Access) (Communications Access Co-Ordinator) Amendment Instrument 2018 (LIN 18/146) ("the amending instrument") is made under section 6R of the Telecommunications (Interception and Access) Act 1979 (the TIA Act) and amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2018 (the principal instrument). Section 6R of the TIA Act provides that the Communications Access Co‑ordinator is the Secretary of the Department of Home Affairs or another person specified in writing by the relevant Minister.
In the principal instrument, the Minister specifies persons holding, occupying or performing duties of certain positions in the Department of Home Affairs to be Communications Access Co‑ordinators. The amending instrument makes a technical amendment to amend a description where the instrument refers to a position within the “National Security and Law Enforcement Policy Branch” (which does not exist) instead of the “National Security and Law Enforcement Policy Division”.
The change is technical in nature, to refer to the correct name of the work area in which the specified position is located. The amending instrument does not affect the functions of a Communications Access Co‑ordinator, which are governed by the Telecommunications (Interception and Access) Act 1979 and the Telecommunications Act 1997.
Human rights implications
The amendment corrects an organisational reference and gives effect to the original intent of the instrument. As such, this instrument does not engage any of the applicable rights or freedoms.
A detailed explanation of the rights and freedoms engaged when the principal instrument was introduced can be found in the Statement of Compatibility that was prepared for that instrument.
Conclusion
This amendment is compatible with human rights as it is a technical amendment only and does not raise any human rights issues.
Overview
The Telecommunications (Interception and Access) (Communications Access Co-ordinator) Amendment Instrument 2018 is an instrument made under section 6R of the Telecommunications (Interception and Access) Act 1979. The Act was enacted to address the need for lawful access to telecommunications for the purpose of investigating serious criminal offences. The instrument amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2018 to correct a minor typographical error in the description of an organisational unit within the Department of Home Affairs. Specifically, it rectifies the reference from the non-existent "National Security and Law Enforcement Policy Branch" to the correct "National Security and Law Enforcement Policy Division." This change ensures the instrument accurately reflects the organisational structure within the Department of Home Affairs, thereby maintaining the integrity and functionality of the legislative framework governing telecommunications interception and access.
Scope and Application
The Telecommunications (Interception and Access) (Communications Access Co-ordinator) Amendment Instrument 2018 amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2018, made under the Telecommunications (Interception and Access) Act 1979. This amendment corrects a typographical error by updating the reference to a specific organisational unit within the Department of Home Affairs from the "National Security and Law Enforcement Policy Branch" to the "National Security and Law Enforcement Policy Division". Despite the change in wording, the amendment does not alter the roles or responsibilities of the Communications Access Co-ordinators, which remain governed by the Telecommunications (Interception and Access) Act 1979 and the Telecommunications Act 1997. The amendment applies to persons occupying specific positions within the Department of Home Affairs and is purely technical, ensuring that the instrument accurately reflects the organisational structure. The Office of Best Practice Regulation has confirmed that a Regulatory Impact Statement is not required, and a Statement of Compatibility with Human Rights has been included, affirming that the amendment does not affect any rights or freedoms under international human rights instruments.
Key Provisions
The Telecommunications (Interception and Access) (Communications Access Co-ordinator) Amendment Instrument 2018 (LIN 18/202) amends the Telecommunications (Interception and Access) (Communications Access Co-ordinator) Instrument 2018 (the principal instrument) under section 6R of the Telecommunications (Interception and Access) Act 1979. This amendment corrects a typographical error where a reference to the “National Security and Law Enforcement Policy Branch” (which does not exist) is replaced with the correct name “National Security and Law Enforcement Policy Division” (subsection 1(1)). This change is purely technical and does not alter the existing roles or functions of the Communications Access Co-ordinator, which are defined in the Telecommunications (Interception and Access) Act 1979 and the Telecommunications Act 1997. The amendment ensures that the description aligns with the correct organisational unit within the Department of Home Affairs.
The obligation under this Act for the relevant Minister is to ensure that the specified positions within the Department of Home Affairs are correctly identified to fulfil their duties as Communications Access Co-ordinators. This involves specifying the correct organisational unit to avoid any confusion or misidentification that could potentially impact the operational functions of the role. The Secretary of the Department of Home Affairs or the specified person must ensure that they are aware of their responsibilities and duties as outlined in the Act and the principal instrument, and that they operate within the legal framework provided.
There are no explicit offences, penalties, or consequences outlined in the amending instrument itself. However, any failure to comply with the requirements of the Telecommunications (Interception and Access) Act 1979 or the Telecommunications Act 1997 by a Communications Access Co-ordinator could result in legal action. Under the Telecommunications (Interception and Access) Act 1979, unauthorised interception of communications or access to telecommunications can lead to criminal offences with penalties including substantial fines and imprisonment. Similarly, any failure to correctly identify the Communications Access Co-ordinator could lead to administrative consequences, including potential legal challenges to the validity of actions taken by the Co-ordinator. The principal instrument and the relevant Acts should be consulted for specific details on penalties and consequences for non-compliance.