Explanatory Statement
Issued by the Authority of the Minister for Home Affairs
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Amendment Instrument 2021 (No. 1)
Legislative authority
- The Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Amendment Instrument 2021 (No. 1) (the Amendment Instrument) is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (the Act). The Amendment Instrument amends the Telecommunications (Interception and Access) (Emergency Service Facilities — Australian Capital Territory) Instrument 2019 (the Instrument).
- The Act establishes a general prohibition against the interception of communications passing over a telecommunications system (section 7 of the Act refers). However, subsection 6(2F) of the Act provides that a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an ‘emergency service facility’ may listen to or record such a communication without contravening the general prohibition.
- This exception only applies to communications to or from premises declared by the Minister for Home Affairs (the Minister) to be an emergency service facility, pursuant to subsection 6(2B) of the Act. The Minister can only declare premises to be an emergency service facility if he or she is satisfied that the premises are operated by one of the types of forces or services listed in paragraphs 6(2B)(a) to (d) of the Act, to enable that force or service (or another force or service) to deal with a request for assistance in an emergency.
- Under subsection 6(2B) of the Act, the Minister has declared new premises in the Australian Capital Territory (ACT) operated by the Australian Maritime Safety Authority (AMSA) to be an emergency service facility.
- Subsection 6(2D) of the Act provides that, if the Minister makes a declaration under subsection 6(2B) of the Act, the Minister must, by legislative instrument specify:
- the name of the force or service operating the premises to which the declaration relates; and
- the geographical region in which those premises are located.
6. The AMSA facility coordinates support assets within the Australian Search and Rescue Zone, including responses to aircraft incidents and marine boating and shipping incidents. This may involve referring matters to State Authorities (usually police forces) or calling upon contracted air assets from Ambulance, Police and Defence Force for search and rescue operations on land and on water.
Purpose of the Amendment Instrument
7. The purpose of the Amendment Instrument is to provide the required information under subsection 6(2D) of the Act and to facilitate AMSA’s operation of its premises as an emergency service facility. This will allow them to record calls in compliance with their obligations under the Act, which will enhance the efficiency of their processes for responding to emergencies.
Privacy considerations
8. Subsection 6(2G) of the Act provides that subsection 6(2F) (exemption to the general prohibition against the interception of communications passing over a telecommunications system) only applies in relation to an emergency service facility if signs notifying persons that communications to or from that facility may be listened to or recorded are clearly visible at each entrance to the facility. AMSA has confirmed that the premises covered by the Amendment Instrument meet this requirement.
9. AMSA has published organisational privacy principles and policies on its website, and operates under a privacy and secrecy framework which upholds the Privacy Act 1988.
10. AMSA’s privacy policies are underpinned by the principle that individuals’ personal information may only be collected, used, stored or disclosed to the extent that it is reasonably necessary for or directly related to their functions. As a statutory body, these functions are limited to those contained in the Australian Maritime Safety Authority Act 1990, the Navigation Act 2012, the Marine Safety (Domestic Commercial Vessel) National Law Act 2012, the Shipping Registration Act 1981 or other AMSA legislation.
11. AMSA also has transparent processes for information disposal, and an avenue to progress a complaint in the event that it breaches any of its obligations.
Limiting listening to and recording of calls
12. In addition to receiving emergency calls, the facility operated by AMSA has the capability to receive and record non‑emergency calls, and for staff members to receive personal calls. However, the service operator has policies, procedures and physical measures in place to restrict the recording of communications to only emergency calls.
13. Staff do not receive personal calls on the lines into the centre. The phone numbers are listed and recorded as search and rescue lines, and there is currently a recording warning in place. Emergency calls to the centre are divided between two separate numbers, one each for aviation and maritime emergencies.
14. It is also standard policy procedure that staff are trained not to make non-emergency personal calls on phone lines that receive or record emergency calls. Furthermore, AMSA and Telstra are currently working on providing outgoing calls, to outside numbers, with phone identification instead of a private number.
Details of the Amendment Instrument
15. This instrument is the Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Amendment Instrument 2021 (No. 1). The Amendment Instrument may be cited as LIN 21/042.
16. The Amendment Instrument amends the Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2019 (the Instrument).
17. Item 1 of the Amendment Instrument amends Schedule 1 of the Instrument by adding item 4 to the table to reflect the Minister’s declaration of the premises operated by AMSA in Braddon, ACT, as a new emergency service facility.
18. The instrument commences the day after it is registered on the Federal Register of Legislation.
Consultation
20. Consultation was undertaken with AMSA to obtain up-to-date information to ensure only currently operating facilities are listed.
21. The Office of Best Practice Regulation (OBPR) has confirmed that a Regulatory Impact Statement is not required. The OBPR Reference number is 44112.
22. The Amendment Instrument is a disallowable instrument under section 42 of the Legislation Act 2003. A Statement of Compatibility with Human Rights has been prepared and is attached.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Amendment Instrument 2021 (No. 1)
This Disallowable Legislative Amendment Instrument (the Amendment 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.
The Amendment Instrument amends the Telecommunications (Interception and Access) (Emergency Service Facilities — Australian Capital Territory) Instrument 2019.
Overview of the Disallowable Legislative Amendment Instrument
The Amendment Instrument is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (the Act).
Section 7 of the Act establishes a general prohibition against the interception of communications passing over a telecommunications system. However, subsection 6(2F) of the Act provides that a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an ‘emergency service facility’ may listen to or record such a communication without contravening the general prohibition.
This exception only applies to communications to or from premises declared by the Minister as emergency service facilities pursuant to subsection 6(2B) of the Act. Such a declaration is made on the basis that the Minister is satisfied that specified conditions set out in the subsection are met.
When the Minister makes a declaration under subsection 6(2B) of the Act, subsection 6(2D) of the Act requires the Minister to specify in a legislative instrument the name of the force or service operating the premises to which the declaration relates and the geographical region in which those premises are located.
The purpose of the Amendment Instrument is to specify the Australian Maritime Safety Authority (AMSA) as a force or service operating a premise in Braddon, ACT that has been declared as an ‘emergency service facility’, for the purposes of the Act. This facility coordinates support assets to respond to maritime emergencies within the Australian Search and Rescue Zone prior to handover to State authorities.
Human rights implications
This Disallowable Legislative Instrument may engage the right to privacy contained in Article 17 of the International Covenant on Civil and Political Rights (ICCPR) and the right to life contained in Article 6 of the ICCPR.
Interference with a person’s privacy or correspondence
Article 17 of the International Covenant on Civil and Political Rights (ICCPR) provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks.
The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted ‘reasonableness’ in this context to imply that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’.
Despite the general prohibition on the interception of communications in subsection 7(1) of the Act, subsection 6(2F) ensures that listening to or recording a communication passing over a telecommunications system to and from a declared emergency service facility by a person who is lawfully engaged in duties related to the receiving and handling of communications is not an interception of communication.
The purpose of this exception is to ensure that emergency services, such as AMSA, are able to assist an emergency caller, and respond to an emergency situation as quickly as possible, without the requirement to first obtain a caller’s consent to recording of the call. This ensures that persons requiring emergency assistance are provided with efficient and timely assistance. Recording of a call enables an emergency service to undertake appropriate clarification, review and audit in dealing with an emergency situation which may involve a threat to life.
The Amendment Instrument furthers this purpose by ensuring premises which are covered by the Amendment Instrument and are responsible for taking such calls are captured by the exception in subsection 6(2F).
The measures in the Amendment Instrument are reasonable and proportionate to achieving the objective of providing assistance in emergency situations. The Amendment Instrument is subject to a number of safeguards, including:
- the exception for recording calls to and from a declared emergency service facility applies only if the Minister for Home Affairs is satisfied that the premises are operated by a police force or service of the Commonwealth, State or Australian Capital Territory; or a fire or ambulance service of a State or Australian Capital Territory; or a service for despatching, or referring matters for the attention of, those services, and
- the emergency service facility exception is subject to the requirement in subsection 6(2G) of the Act to ensure signs are clearly visible at each entrance to the facility notifying persons that communications to or from the facility may be listened to or recorded.
Accordingly, to the extent that the measures in the Amendment Instrument may limit the prohibition on arbitrary and unlawful interference with privacy in Article 17 of the ICCPR, the limitation is proportionate to the legitimate objectives of protecting public order, public health, public safety and the rights and freedoms of others, such as the right to life under Article 6 of the ICCPR.
Right to life
The right to life under Article 6 of the ICCPR includes obligations to promote life, including taking appropriate steps to protect the right to life of those within its jurisdiction.
As discussed above, the Amendment Instrument ensures that premises in the Australian Capital Territory, which are declared as an emergency service facility, can provide appropriate and timely assistance for persons in emergency situations.
The AMSA facility is critical to coordinating first responder functions within the Australian Search and Rescue Zone, including responses to aircraft incidents and marine boating and shipping incidents. This may involve referring matters to State Authorities (usually police forces) or calling upon contracted air assets from Ambulance, Police and Defence Forces for search and rescue operations on land and on water. In this regard, the Amendment Instrument promotes the right to life under Article 6 of the ICCPR.
Conclusion
The Amendment Instrument is compatible with human rights because it promotes the right to life under Article 6 of the ICCPR. To the extent that the Amendment Instrument limits human rights under Article 17 of the ICCPR, those limitations are permissible because they are authorised by law and are necessary, reasonable and proportionate to achieve a legitimate objective.
The Hon Karen Andrews MP
Minister for Home Affairs