Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities –Australian Capital Territory) Instrument 2007
The Telecommunications (Interception and Access) Act 1979 (the Act) establishes a general prohibition against the interception of communications passing over a telecommunications system. The purpose of the Instrument is to ensure that listening to or recording calls to and from a declared emergency service facility is not an interception for the purposes of the Act.
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 a communication to or from the emergency service facility without contravening the general prohibition against interception.
The exception provided by subsection 6(2F) of the Act only applies to emergency services facilities that are declared by the Minister pursuant to subsection 6(2B) of the
Act. To protect against the publication of the location of the facilities, which are critical infrastructure, a declaration under subsection 6(2B) of the Act is not a legislative instrument.
To maintain Parliamentary scrutiny of the declarations, subsection 6(2D) of the Act provides that 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.
In December 2005, the Attorney-General, as Minister administering the Act, made the Telecommunications (Interception) (Emergency Service Facility) Declaration 2005 and eight corresponding legislative instruments. On further consideration, a single declaration has caused significant complexity with amendments.
Consequently, the Attorney-General has now made eight separate declarations and eight separate corresponding legislative instruments. This will facilitate the ease of future amendments, which for operational reasons, will always need to be made urgently.
The Telecommunications (Interception and Access) (Emergency Service Facilities –Australian Capital Territory) Instrument 2007 is made under subsection 6(2D) of the Act. The related declaration, the Telecommunications (Interception and Access) (Emergency Service Facilities - Australian Capital Territory) Declaration 2007, is made under subsection 6(2B) of the Act.
There have been no material changes to the declared facilities in the Australian Capital Territory since the previous instrument was made.
This instrument commences on the day after it is registered.
Overview
The Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2007 was enacted to address the specific needs of emergency services in the Australian Capital Territory, ensuring that intercepting communications to and from emergency service facilities does not contravene the general prohibition against the interception of telecommunications under the Telecommunications (Interception and Access) Act 1979. The Act, administered by the Attorney-General, establishes a framework to allow authorised personnel to lawfully listen to or record communications related to emergency services without engaging in an illegal interception. The Instrument aims to maintain Parliamentary oversight by requiring the Minister to specify the names of forces or services and the geographical regions of the facilities, while ensuring that the precise locations of these critical infrastructures remain undisclosed to the public. The Instrument and related declaration streamline the amendment process, allowing for urgent operational adjustments while maintaining the necessary legislative scrutiny.
Scope and Application
The Telecommunications (Interception and Access) Act 1979 sets out a framework that generally prohibits the interception of communications passing over a telecommunications system. However, this Act provides specific exceptions to ensure that certain activities do not contravene the general prohibition. One such exception pertains to the lawful engagement of individuals in duties relating to the receiving and handling of communications to or from an emergency service facility. Under subsection 6(2F) of the Act, a person lawfully engaged in these duties can listen to or record a communication to or from an emergency service facility without it being considered an interception. To ensure that this exception operates effectively, the Act mandates that the facilities in question must be declared by the Minister. This declaration is not a legislative instrument but is accompanied by a legislative instrument specifying the name of the force or service operating the premises and the geographical region in which those premises are located. The Telecommunications (Interception and Access) (Emergency Service Facilities –Australian Capital Territory) Instrument 2007, made under subsection 6(2D) of the Act, relates to such facilities in the Australian Capital Territory and is designed to facilitate the ease of future amendments while maintaining the necessary oversight by Parliament. This instrument complements the Telecommunications (Interception and Access) (Emergency Service Facilities - Australian Capital Territory) Declaration 2007, made under subsection 6(2B) of the Act.
Key Provisions
The main operative sections of the Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2007 are subsection 6(2F) and subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979. Subsection 6(2F) allows a person lawfully engaged in duties relating to the receiving and handling of communications to or from a declared emergency service facility to listen to or record such communications without contravening the general prohibition against interception. Subsection 6(2D) mandates that the Minister must specify, through a legislative instrument, the name of the force or service operating the premises and the geographical region in which the premises are located to protect the location of critical infrastructure.
The Act imposes specific obligations on the parties involved, primarily ensuring that the interception of communications is only permissible in the context of emergency service facilities declared by the Minister. This includes adhering to the criteria set out in the declaration and legislative instrument. The Act also mandates that the Minister must maintain and update these declarations and instruments to ensure they reflect current operational realities and legal requirements.
Failure to comply with the provisions of the Act can lead to civil and criminal consequences. While the specific offences and penalties are not detailed in the Instrument itself, under the Telecommunications (Interception and Access) Act 1979, unauthorised interception of communications is a criminal offence. The penalties for such offences can include substantial fines and imprisonment, reflecting the seriousness of breaches related to intercepting communications, especially in the context of emergency service facilities. The precise penalties are outlined in the main Act and would apply accordingly in the case of breaches related to the emergency service facilities declared under this Instrument.