EXPLANATORY STATEMENT
Issued by the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Amendment Instrument (No. 1) 2023
Legislative authority
- The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Amendment Instrument (No. 1) 2023 (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 — New South Wales) Instrument 2020 (F2020L01532) (the Instrument).
- The Act establishes a general prohibition against the interception of communications passing over a telecommunications system (section 7 of the Act). 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.
- The Attorney-General may declare premises to be an emergency service facility, pursuant to subsection 6(2B) of the Act. The Attorney-General can only declare such premises 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. These forces and services are:
- a Commonwealth, State or Territory police force or service
- a fire service of a State or Territory
- an ambulance service of a State or Territory, or
- a service for despatching, or referring matters for the attention of, a force service referred to above.
4. Under subsection 6(2B) of the Act, the Attorney-General has declared Virtual Clinical Care Centre in Gladesville operated by the Ambulance Service of New South Wales (NSW Ambulance) to be an emergency service facility. This declaration is included in the Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Amendment Declaration (No. 1) 2023 (the Amendment Declaration), which amends the Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Declaration 2020 (the 2020 Declaration).
5. Subsection 6(2D) of the Act provides that, if the Attorney-General makes a declaration under subsection 6(2B) of the Act, the Attorney-General 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.
Purpose of the Instrument
6. The Amendment Instrument specifies that the premises operated by NSW Ambulance in the geographic region of Gladesville has been declared as an emergency service facility. The Amendment Instrument fulfils the Attorney-General’s obligation under subsection 6(2D) of the TIA Act.
7. The Amendment Instrument does not otherwise alter arrangements for forces or services specified in the Instrument.
Privacy considerations
8. Subsection 6(2G) of the Act requires 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. NSW Ambulance has confirmed that the Virtual Clinical Care Centre (Gladesville) meets this requirement.
9. NSW Ambulance’s organisational privacy policies require that individuals’ personal information may only be collected, used, stored or disclosed to the extent that it is reasonably necessary for the operators of the premises to execute their functions as an emergency service facility.
Limiting listening to and recording of calls
10. Where emergency service facilities operating in New South Wales have the capability to receive and record non‑emergency calls, and to allow staff members to receive personal calls, all service operators have policies, procedures and physical measures in place to restrict the listening to or recording of communications to only emergency calls.
11. An example of a physical measure commonly implemented is having phone lines for emergency calls and personal calls located in separate rooms within the emergency service facility. It is also standard policy procedure across the specified emergency service facilities that staff are trained not to make or receive non-emergency personal calls on phone lines that receive or record emergency calls.
Details of the Amendment Instrument
12. The Amendment Instrument amends item 4 of the Instrument.
13. The Amendment Instrument commences the day after it is registered.
Consultation
14. Consultation was undertaken with NSW Ambulance to obtain up-to-date information to ensure only currently operating NSW Ambulance facilities are listed.
15. The Office of Impact Analysis (OIA) has confirmed that a Regulatory Impact Statement is not required (OIA Reference number: OBPR22-03789).
16. 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 – New South Wales) Amendment Instrument (No. 1) 2023
This Disallowable Legislative 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.
Overview of the Disallowable Legislative Instrument
The Amendment Instrument is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (the Act).
The Act establishes a general prohibition against the interception of communications passing over a telecommunications system (section 7 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.
The Attorney-General may declare premises as emergency service facilities pursuant to subsection 6(2B) of the Act. Such a declaration can only be made on the basis that the Attorney‑General 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. These forces and services are:
- a Commonwealth, State or Territory police force or service
- a fire service of a State or Territory
- an ambulance service of a State or Territory, or
- a service for despatching, or referring matters for the attention of, a force service referred to above.
When the Attorney-General makes a declaration under subsection 6(2B) of the Act, subsection 6(2D) requires the Attorney-General 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 Amendment Instrument specifies information under subsection 6(2D) of the Act relating to the NSW Ambulance Virtual Clinical Care Centre in Gladesville, New South Wales to ensure that it can lawfully intercept communications without the requirement to obtain consent.
Human rights implications
This Amendment 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 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 service providers 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 the 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 provider to undertake appropriate clarification, review and audit in dealing with an emergency situation which may involve a threat to life.
The effect of the Amendment Instrument is 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 Attorney-General is satisfied that the premises are operated by a police force or service of the Commonwealth, State or Territory; or a fire or ambulance service of a State or 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) 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 interfere with privacy, 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 the NSW Ambulance Virtual Clinical Care Centre in Gladesville, which is declared to be an emergency service facility, can provide appropriate and timely assistance for persons in emergency situations. Emergency services are critical to delivering first responder functions to people located in New South Wales, including facilitating medical treatment to patients, in addition to other emergency functions related to protecting the right to life of people in New South Wales. 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 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 MARK DREYFUS KC MP
Attorney-General