Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities –South Australia) 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 –South Australia) Instrument 2007, is made under subsection 6(2D) of the Act. The related declaration, the Telecommunications (Interception and Access) (Emergency Service Facilities- South Australia) Declaration 2007, is made under subsection 6(2B) of the Act.
The only material change to the declared facilities in South Australia since the previous instrument was made is the addition of the Security Control Centre in Adelaide.
This instrument commences on the day after it is registered.
Overview
The Telecommunications (Interception and Access) (Emergency Service Facilities – South Australia) Instrument 2007 was enacted to address the specific issue of ensuring that the monitoring of communications to and from emergency service facilities in South Australia does not contravene the general prohibition against the interception of telecommunications as established by the Telecommunications (Interception and Access) Act 1979. This Instrument was created under the authority of the Attorney-General to align with the Act’s objective of allowing authorised personnel to lawfully listen to or record communications without breaching interception laws. The policy objective is to safeguard the integrity and security of emergency services communications while ensuring compliance with legislative requirements, and to provide a framework that allows for efficient and urgent amendments to declarations of emergency service facilities. This was necessitated by the complexity encountered with a single declaration, prompting the Attorney-General to issue multiple declarations and corresponding legislative instruments to streamline future amendments.
Scope and Application
The Telecommunications (Interception and Access) (Emergency Service Facilities – South Australia) Instrument 2007 is an instrument made under the Telecommunications (Interception and Access) Act 1979, which establishes a general prohibition against the interception of communications passing over a telecommunications system. This particular instrument aims to ensure that listening to or recording calls to and from declared emergency service facilities in South Australia is not considered an interception for the purposes of the Act. This exception applies to emergency services facilities declared by the Minister under subsection 6(2B) of the Act, with the declarations not being legislative instruments to protect the confidentiality of the facilities' locations. The instrument specifies the name of the force or service operating the premises and the geographical region in which those premises are located, as required by subsection 6(2D) of the Act. The instrument and the related declaration were made to facilitate easier future amendments, which are often required urgently for operational reasons. The instrument commences on the day after it is registered.
Key Provisions
The Telecommunications (Interception and Access) (Emergency Service Facilities –South Australia) Instrument 2007 (the Instrument) operates under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (the Act) to specify certain particulars of the emergency service facilities in South Australia that are exempt from the general prohibition against interception of communications. Subsection 6(2B) of the Act provides for the declaration of these facilities by the Minister. The Instrument identifies the force or service operating the premises and the geographical region in which the premises are located. This is done to facilitate ease of future amendments and to maintain parliamentary scrutiny, while ensuring the secrecy of the facility locations.
The Act imposes a general prohibition on the interception of communications passing over a telecommunications system. However, under subsection 6(2F) of the Act, a person lawfully engaged in duties relating to the receiving and handling of communications to or from a declared emergency service facility may listen to or record a communication without contravening this prohibition. The Instrument ensures that this exception applies only to facilities declared by the Minister under subsection 6(2B). This means that the facilities must be officially recognised as emergency service facilities by the Minister, and only those lawfully engaged in duties at these facilities can listen to or record communications without contravening the Act.
The Instrument also outlines the obligations of the Minister under subsection 6(2D) of the Act to specify, by legislative instrument, the name of the force or service operating the premises and the geographical region in which those premises are located. This ensures that the details of the emergency service facilities are publicly known, except for their specific locations, which are kept confidential to protect the facilities as critical infrastructure. The Minister must make these declarations and corresponding legislative instruments, and the Instrument is effective from the day after it is registered.
In the case of breach of the Act, the consequences can be both civil and criminal. Under the Act, unauthorised interception of communications can lead to significant penalties. The maximum penalty for individuals can include substantial fines and imprisonment, while corporate entities may face even higher financial penalties. Additionally, the Act provides for the recovery of damages by any person who has suffered loss or damage due to an interception that contravenes the Act. Therefore, it is crucial for entities and individuals to adhere to the provisions of the Act and the Instrument to avoid potential legal repercussions.