TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) (EMERGENCY SERVICE FACILITIES – NORTHERN TERRITORY) AMENDMENT INSTRUMENT (NO.1) 2024
EXPLANATORY STATEMENT
Issued by the Authority of the Attorney- General
in compliance with section 15J of the Legislation Act 2003
PURPOSE AND OPERATION OF THE INSTRUMENT
The purpose of the Telecommunications (Interception and Access) (Emergency Service Facilities – Northern Territory) Amendment Instrument (No. 1) 2024 (the Amendment Instrument) is to specify the emergency service facilities operated by the Police Force of the Northern Territory in the geographic regions of Nightcliff and Knuckey Lagoon, and to remove the emergency service facility at Berrimah.
The Amendment Instrument is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (TIA Act) and amends the Telecommunications (Interception and Access) (Emergency Service Facilities – Northern Territory) Instrument 2023 (the Instrument).
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 allows a person to listen to or record emergency calls at emergency facilities declared by the Attorney-General in certain circumstances.
Under subsection 6(2B), the Attorney-General may declare premises to be emergency service facilities if the Attorney-General is satisfied that the premises are operated by a police, fire, ambulance or dispatching service to enable emergency services to deal with a request for assistance in an emergency.
The Police Force of the Northern Territory notified the Attorney-General’s Department that a facility listed in the Instrument was no longer operational and that two additional premises that handle requests for assistance in emergencies are in operation. The Police Force of the Northern Territory has also confirmed that there will be signs clearly visible at the entrance to the facilities notifying persons that communications to or from that facility may be listened to or recorded.
The Attorney-General subsequently declared premises in Nightcliff and Knuckey Lagoon operated by the Police Force of the Northern Territory to be emergency service facilities, and revoked the declaration of the facility at Berrimah.
Subsection 6(2D) of the TIA Act provides that, if the Attorney-General makes a declaration under subsection 6(2B) of the TIA Act, the Attorney-General must, by legislative instrument specify the name of the emergency service and the geographic region in which those premises are located.
Details of the Amendment Instrument are set out in Attachment A. The Amendment Instrument satisfies the Attorney-General’s obligations under subsection 6(2D) of the TIA Act.
The Amendment Instrument is a disallowable instrument under section 42 of the Legislation Act 2003 and therefore a Statement of Compatibility with Human Rights has been provided at Attachment B.
CONSULTATION
The Amendment Instrument was made to reflect the change to the location of premises as advised by the Police Force of the Northern Territory. Consultation was undertaken with the Police Force of the Northern Territory on the draft instrument and the Police Force of the Northern Territory did not raise any concerns.
It was not necessary to conduct consultation beyond the Police Force of the Northern Territory prior to the Amendment Instrument being made as the Amendment Instrument is technical in nature, in that communications are already being recorded and listened to by the Police Force of the Northern Territory at its emergency facilities. The Amendment Instrument merely updates the locations of those facilities.
The Office of Impact Assessment (OIA) has confirmed that a Regulatory Impact Statement is not required (OIA Reference OIA24-06319) for this instrument. The OIA considered this Declaration is unlikely to have a more than minor impact, introducing no significant regulatory burden or impact for Australian individuals, businesses, or community organisations.
Attachment A
NOTES ON SECTIONS
Section 1 – Name
Section 1 provides that the Amendment Instrument is the Telecommunications (Interception and Access) (Emergency Service Facilities – Northern Territory) Amendment Instrument (No 1) 2024.
Section 2 – Commencement
Section 2 provides that the instrument commences the day after the Amendment Instrument is registered.
Section 3 – Authority
Section 3 provides that the Amendment Instrument is made under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979. In addition, 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 - Schedule
Schedule 1 of the Amendment Instrument amends Schedule 1 to the Telecommunications (Interception and Access) (Emergency Service Facilities – Northern Territory) Instrument 2023.
Item 1 specifies that the premises operated by the Police Force of the Northern Territory in the geographic regions of Nightcliff and Knuckey Lagoon have been declared as emergency service facilities.
Item 2 specifies that the premise operated by the Police Force of the Northern Territory in the geographic region of Berrimah is removed from the Instrument.
Attachment B
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Telecommunications (Interception and Access) (Emergency Service Facilities – Northern Territory) Amendment Instrument (No. 1) 2024 (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 Amendment Instrument
The Attorney-General has, under subsection 6(2B) of the TIA Act, declared premises at Nightcliff and Knuckey Lagoon in the Northern Territory to be emergency service facilities and revoked the declaration of a facility at Berrimah.
The purpose of the Amendment Instrument is to specify the geographical location of premises that have been declared to be emergency service facilities and to remove the location of the premise that is no longer declared.
Human rights implications
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 TIA 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 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 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 applies only if the Attorney-General is satisfied that the premises are operated by a police, ambulance, fire or dispatching service to enhance 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 Northern Territory has confirmed that it has signs erected there, and
the instrument is subject to disallowance and sunsetting.
Consultation occurred with the Police Force of the Northern Territory to understand the privacy arrangements in place at the two new premises. The Police Force of the Northern Territory will conduct new inductions for all staff and provide new induction material. This material contains notifications of the recording of communications and policies on the requirements for access to the calls. Access to recorded communications is limited to specific responsible staff and areas.
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 objective of protecting public order, public health, public safety and the rights and freedoms of others.
In addition, under Article 12(3) of the ICCPR, limitation of rights may be permissible where they are necessary to protect interests including national security, public order, or the rights and freedoms of others such as the right to life under Article 6 of the ICCPR.
Right to life
The Amendment Instrument positively engages the right to life under Article 6. 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 premises in Nightcliff and Knuckey Lagoon, which are 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 located in the Northern Territory, including facilitating medical treatment to patients, as well as facilitating police or fire fighter responses to emergencies (including lift threatening situations). 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 it 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.