EXPLANATORY STATEMENT
Issued by authority of the Minister for Home Affairs
Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Amendment Instrument (No. 1) 2026
The Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Amendment Instrument (No. 1) 2026 (Amendment Instrument) is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (TIA Act). It amends the Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Instrument 2020.
Purpose
The purpose of the Amendment Instrument is to specify the emergency service facility operated by Airservices Australia in the geographic region of Luddenham, New South Wales.
Background
The TIA Act establishes a general prohibition against the interception of communications passing over a telecommunications system. However, there is an exception in section 6 that enables a person to listen to or record emergency calls at emergency service facilities declared by the Minister in certain circumstances.
Under subsection 6(2B) of the TIA Act, the Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by a police, fire, ambulance or dispatching or referral service to enable emergency services to deal with a request for assistance in an emergency.
Airservices Australia notified the Department of Home Affairs that it would commence operating a new facility in Luddenham.
The Minister subsequently amended the relevant declaration under subsection 6(2B) of the TIA Act to add the new facility.
Subsection 6(2D) of the TIA Act provides that, if the Minister makes a declaration under subsection 6(2B) of the TIA Act, the Minister must, by legislative instrument, specify the name of the emergency force or service operating the premises to which the declaration relates and the geographic region in which those premises are located. This ensures that emergency calls can be dealt with without delay, while being recorded to support first responders and any subsequent hearings.
Consultation
The Amendment Instrument was made at the request of Airservices Australia. Consultation was undertaken with this operator on the development of the instrument and no concerns were raised.
It was not necessary to conduct consultation beyond this operator as the Amendment Instrument is technical in nature in that communications are already being recorded and listened to at the operators’ other emergency facilities. The Amendment Instrument merely updates the location of these facilities.
Other considerations
Details of the Amendment Instrument are set out in Attachment A. The Amendment Instrument satisfies the Minister’s duty under subsection 6(2D) of the TIA Act.
Section 12 of the Legislation Act 2003 (the Legislation Act) provides that a legislative instrument commences at the start of the day after the day the instrument is registered, or so far as the instrument provides otherwise (in accordance with such provision). Sections 1 to 4 of this instrument commence the day after this instrument is registered on the Federal Register of Legislation. Schedule 1 to this instrument commences on 9 July 2026. It is a legislative instrument for the purposes of the Legislation Act.
The Amendment Instrument will be automatically repealed in accordance with section 48A of the Legislation Act as its only legal effect is to amend the Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Instrument 2020.
The Amendment Instrument is a disallowable instrument under section 42 of the Legislation Act and therefore a Statement of Compatibility with Human Rights has been provided at Attachment B.
Attachment A
Details of the Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Amendment Instrument (No. 1) 2026
Section 1 Name
This section provides that the name of the instrument is the Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Amendment Instrument (No. 1) 2026 (the Amendment Instrument).
Section 2 Commencement
Section 2 provides that sections 1 to 4 of the instrument commence on the day after the Amendment Instrument is registered.
The amendment in Schedule 1 commences on 9 July 2026 to align with the date that the Luddenham facility becomes operational. This provides clarity and promotes transparency by aligning the commencement of the instrument with the commencement of the declaration that allows calls to be intercepted at the new emergency service facility.
Section 3 Authority
Section 3 provides that the Amendment Instrument is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (TIA Act). Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), 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.
Section 4 Schedules
Section 4 provides that each instrument that is specified in a Schedule to the Amendment Instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Amendment Instrument has effect according to its terms. This is the enabling provision for Schedule 1 to the Amendment Instrument.
Schedule 1—Amendments
Schedule 1 to the Amendment Instrument amends section 4 of the Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Instrument 2020 (the Instrument).
Item 1 of Schedule 1 inserts a new premises operated by Airservices Australia located in the geographic region of Luddenham into section 4 of the Instrument.
Airservices Australia has confirmed that, prior to occupancy of the facility, it will erect signs clearly visible at each entrance to the facility notifying persons that communications to or from the facility may be listened to or recorded, consistent with the requirements in subsection 6(2G) of the TIA Act.
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 Services Facilities—New South Wales) Amendment Instrument (No. 1) 2026
This Disallowable 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 Disallowable Legislative Instrument
The Telecommunications (Interception and Access) (Emergency Service Facilities—New South Wales) Amendment Instrument (No. 1) 2026 (the Amendment Instrument), under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (TIA Act), specifies Luddenham in New South Wales as a new geographical region of premises operated by Airservices Australia – Aviation Rescue and Fire Fighting Service.
The TIA Act establishes a general prohibition against the interception of communications passing over a telecommunications system. However, section 6 provides an exception to enable a person to listen to or record emergency calls at emergency facilities declared by the Minister for Home Affairs in certain circumstances.
Subsection 6(2D) of the TIA Act provides that, if the Minister makes a declaration under subsection 6(2B) of the TIA Act, the Minister must, by legislative instrument, specify the name of the emergency service and the geographic region in which those premises are located.
The purpose of the Amendment Instrument is to specify the geographical location of facilities for Airservices Australia. Airservices Australia is currently specified as a service operating a number of emergency facilities.
Human rights implications
This Disallowable Legislative Instrument engages the following rights:
- 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(1) 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.
- Everyone has the right to the protection of the law against such interference or attacks.
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Interferences with privacy may be permissible, provided that it is authorised by law and is not arbitrary. For an interference with the right to privacy not to be arbitrary, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and 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’. The term unlawful means that no interference can take place except as authorised under domestic law.
This Amendment Instrument may limit the right to privacy by declaring an additional premises to be an ‘emergency service facility’, enabling this facility to listen to or record emergency calls. Despite the general prohibition on the interception of communications in subsection 7(1) of the TIA Act, section 6 ensures that listening to or recording a communication passing over a telecommunications system to or 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 are able to assist an emergency caller, and respond to an emergency situation as quickly as possible, without first notifying the caller of the recording. 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 effect of the Amendment Instrument on the right to privacy is reasonable, necessary and proportionate to achieving the objective of providing efficient and timely assistance in emergency situations.
The Amendment Instrument is subject to a number of safeguards, including:
the exception applies only if the Minister is satisfied that the premises are operated by a police, ambulance, fire or dispatching service to enable them to deal with a request for assistance in an emergency,
under subsection 6(2G), the facility must erect signs easily visible at each entrance to the facility notifying persons that communications to or from the facility may be listened to or recorded, and
the instrument is subject to disallowance and sunsetting.
The Department of Home Affairs consulted with Airservices Australia to understand the privacy arrangements in place at the premises. Privacy policies, procedures and training programs on the management of personal and health information provided by callers ensure that the collection, use, storage and disclosure of information are undertaken only to the extent necessary to facilitate the operations of the premises as an emergency service facility. Further, Airservices Australia has confirmed it will erect signage consistent with the requirement in subsection 6(2G) prior to the facility becoming operational. Staff operating the telephone lines are trained not to receive personal calls on the phone line, with other lines (on which recording does not occur) available to staff for personal calls.
Accordingly, to the extent that the measures in the Amendment Instrument may limit right to privacy in Article 17 of the ICCPR, the limitation is not arbitrary or unlawful and is reasonable, necessary and proportionate to the legitimate objective 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
Article 6(1) of the ICCPR states that:
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The Amendment Instrument ensures that the premises declared as emergency service facilities can provide appropriate and timely assistance for persons in emergency situations. Emergency services are critical to delivering first responder functions to people in New South Wales. In this regard, the Amendment Instrument promotes the right to life under Article 6 of the ICCPR.
Conclusion
The Disallowable Legislative Instrument is compatible with human rights because it promotes protection of human rights and, to the extent that it may limit human rights, those limitations are not arbitrary or unlawful and are reasonable, necessary and proportionate.
The Hon Tony Burke MP
Minister for Home Affairs