Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities –New South Wales) 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 –New South Wales) Instrument 2007 is made under subsection 6(2D) of the Act. The related declaration, the Telecommunications (Interception and Access) (Emergency Service Facilities - New South Wales) Declaration 2007, is made under
subsection 6(2B) of the Act.
There have been no material changes to the declared facilities in New South Wales 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 – New South Wales) Instrument 2007 was enacted to address the specific need for allowing lawful interception of communications for emergency services facilities in New South Wales, without contravening the general prohibition against interception established under the Telecommunications (Interception and Access) Act 1979. This instrument was created to provide clarity and facilitate future amendments by the Attorney-General, who administers the Act. The objective is to ensure that communications to and from declared emergency service facilities can be monitored without breaching the general prohibition on interception, while maintaining the security of these critical infrastructure locations. The instrument specifies the names of the forces or services operating the premises and their geographical regions to ensure transparency and parliamentary scrutiny, while the actual declarations remain undisclosed to protect the facilities' locations.
Scope and Application
The Telecommunications (Interception and Access) Act 1979 applies to all persons and entities within the Commonwealth of Australia, providing a general prohibition on the interception of communications passing over a telecommunications system. The Act is designed to protect the privacy of communications and prevent unauthorised interception, ensuring that only authorised agencies may intercept communications in specific circumstances. However, an exception is made for emergency service facilities, as clarified by the Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Instrument 2007. This Instrument ensures that lawful employees engaged in duties related to receiving and handling communications to or from a declared emergency service facility can listen to or record such communications without contravening the Act’s prohibition on interception. These facilities are declared by the Minister under subsection 6(2B) of the Act, with the specific details of each facility specified in corresponding legislative instruments under subsection 6(2D). This ensures that the critical infrastructure of emergency services is protected while maintaining compliance with privacy laws. The scope of the Act is extended through these declarations and legislative instruments, allowing for targeted exceptions that serve public interest while preserving the general protection against unauthorised communication interception.
Key Provisions
The Telecommunications (Interception and Access) (Emergency Service Facilities –New South Wales) Instrument 2007, made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979, is designed to ensure that certain activities related to emergency service facilities do not contravene the general prohibition on the interception of telecommunications. Specifically, subsection 6(2F) of the Act allows a person lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility to listen to or record such communications without contravening the prohibition against interception. This exception, however, is conditional on the facility being declared by the Minister under subsection 6(2B) of the Act.
Under this Instrument, the Minister has declared specific emergency service facilities in New South Wales, and the geographical regions in which they are located, through a legislative instrument. This declaration is not a legislative instrument itself to protect the sensitive information about the locations of these critical infrastructure sites. The Instrument, in conjunction with the declaration, facilitates the ease of making future amendments, which are often necessary for operational reasons. This approach ensures that the information about the locations of these facilities remains confidential while still providing the necessary legal framework for authorised personnel to perform their duties without legal repercussions.
Entities and individuals subject to this legislation are required to comply with the provisions set out in the Act and the Instrument. This includes ensuring that any listening to or recording of communications to or from the declared emergency service facilities is conducted by personnel who are lawfully engaged in duties relating to the handling of these communications. Additionally, the Minister must ensure that the declarations and legislative instruments are updated as necessary to reflect any changes in the locations or operations of the emergency service facilities.
Failure to comply with the requirements of the Act and the Instrument may result in civil or criminal consequences. While the specific penalties are not detailed within the Instrument itself, breaches of the Telecommunications (Interception and Access) Act 1979 generally carry substantial penalties. For instance, unauthorised interception of communications can result in fines and imprisonment. The exact penalties depend on the nature and severity of the breach but are designed to enforce strict compliance with the legislative requirements.