Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012
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 Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012 (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 the communications without contravening the general prohibition against interception. Subsection 6(2B) of the Act requires that the Minister must be satisfied that the premises are operated by one of the listed forces or services to enable that force or service, or another force or service, to deal with a request for assistance in an emergency.
This exception only applies to emergency services facilities that are declared by the Minister pursuant to subsection 6(2B) of the Act. The Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Declaration 2012 (the Declaration) is made under subsection 6(2B) of the Act. The Attorney-General, as Minister, is satisfied that the operations at these facilities meet the requirements of subsection 6(2B) of the Act as a State or ACT police, fire or ambulance service, or a service for despatching, or referring matters for the attention of those services.
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 classified as 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. The Instrument is made under subsection 6(2D) of the Act. The Instrument replaces the previous Instrument, and adds new emergency service facilities operated by Airservices Australia’s Aviation Rescue and Fire Fighting Service in the geographic regions listed on the Instrument.
Airservices Australia and the Office of Legislative Drafting and Publishing were consulted on the Declaration and Instrument.
The Instrument commences on the day after it is registered.
Statement of Compatibility with Human Rights
This 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. The Act prohibits the interception of communications without the knowledge of the parties. 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.
Human rights implications
Right to privacy
Despite the general prohibition on the interception of communications without the knowledge of parties, facilitating the listening to and recording emergency calls made to police, fire and ambulance services under subsection 6(2F) of the TIA is compatible with Article 17 of the International Covenant on Civil and Political Rights. Article 17 prohibits unlawful or arbitrary interferences with a person’s privacy, and provides that everyone has the right to the protection of the law against such interference or attacks. The right to privacy will particularly be engaged when personal information is collected, stored, used, and disclosed. This right may be limited if the limitations are for a legitimate objective, including the protection of the right to life which includes positive obligations to protect life.
The measures in the Instrument are necessary to protect the right to life by ensuring that emergency services 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 recording of the call.
The Instrument is subject to a number of safeguards, including:
- the exception for recording calls to and from a declared emergency service facilities applies only if the Attorney‑General is satisfied that the premises are operated by a police, fire or ambulance service of a State or of the Australian Capital Territory, or a service for despatching or referring matters for the attention of such 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 and notifying persons that communications to or from the facility may be listened to or recorded. As an additional safeguard, only those premises which handle emergency calls are listed.
In addition, the location of emergency service facilities is protected as critical infrastructure information. This information is contained in the Attorney-General’s declaration under subsection 6(2B) of the Act, which is not classified as a legislative instrument and is not made public. The information is stored in appropriately classified containers by the Australian Government. This Instrument specifies only 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.
Conclusion
The Instrument is compatible with human rights because it advances the protection of human rights and to the extent that it limits human rights, those limitations are authorised by law, reasonable and proportionate.
Overview
The Telecommunications (Interception and Access) Act 1979 was enacted to establish a general prohibition against the interception of communications passing over a telecommunications system, aiming to protect privacy and ensure lawful communication practices. In response to specific operational needs, the Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012 was introduced by the Australian Government to clarify that listening to or recording calls to and from emergency service facilities is not considered an interception under the Act. This legislative instrument ensures that emergency service personnel can effectively manage and respond to emergencies without being hindered by the general prohibition, thereby supporting critical public safety functions. The Instrument was developed under the authority of the Attorney-General and is subject to safeguards to protect privacy and critical infrastructure information, ensuring compliance with human rights standards as outlined in the Human Rights (Parliamentary Scrutiny) Act 2011.
Scope and Application
The Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012 operates within the framework of the Telecommunications (Interception and Access) Act 1979, which broadly prohibits the interception of communications without the knowledge of the parties involved. The Instrument seeks to clarify that listening to or recording calls made to and from declared emergency service facilities is not considered an interception under the Act. This exception applies to persons lawfully engaged in duties related to the receiving and handling of communications to or from emergency service facilities, provided that the Minister is satisfied that the premises in question are operated by a recognised emergency service, such as a police, fire, or ambulance service, or a dispatch service within a State or the Australian Capital Territory. The geographical scope of this Instrument extends to Tasmania, specifically to facilities operated by Airservices Australia’s Aviation Rescue and Fire Fighting Service, as detailed in the Instrument. Importantly, the Instrument does not disclose the precise locations of these emergency facilities, protecting them as critical infrastructure information. Instead, it specifies the names of the operating forces or services and the geographical regions they serve, ensuring compliance with the Act while maintaining the necessary security of these vital emergency locations.
Key Provisions
The main operative sections of the Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012 are section 6(2F) and section 6(2B) of the Telecommunications (Interception and Access) Act 1979 (TIA Act). Section 6(2F) 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 those communications without contravening the general prohibition against interception. Section 6(2B) requires the Minister to be satisfied that the premises are operated by one of the listed forces or services, such as a police, fire or ambulance service of a State or the Australian Capital Territory, or a service for despatching or referring matters for the attention of such services, in order to enable that force or service, or another force or service, to deal with a request for assistance in an emergency. This exception applies only to emergency services facilities that are declared by the Minister under section 6(2B) of the TIA Act.
The Instrument imposes several obligations on the parties and entities it governs. Firstly, the Minister must be satisfied that the premises are operated by one of the listed forces or services to enable that force or service, or another force or service, to deal with a request for assistance in an emergency. Secondly, the Minister must declare the premises as an emergency service facility under section 6(2B) of the TIA Act. Thirdly, the Minister must specify the name of the force or service operating the premises and the geographical region in which those premises are located by legislative instrument under section 6(2D) of the TIA Act. Finally, the emergency service facility must ensure that signs are clearly visible at each entrance to the facility and notifying persons that communications to or from the facility may be listened to or recorded.
Breaching the provisions of the Instrument may result in civil or criminal consequences. However, the maximum penalties for such breaches are not stated in the Instrument. It is important to note that the location of emergency service facilities is protected as critical infrastructure information and is not made public. The Instrument specifies only 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. This is to protect against the publication of the location of the facilities, which are critical infrastructure. The information is stored in appropriately classified containers by the Australian Government.
The Instrument is compatible with human rights because it advances the protection of human rights and to the extent that it limits human rights, those limitations are authorised by law, reasonable and proportionate. The right to privacy will particularly be engaged when personal information is collected, stored, used, and disclosed. However, the measures in the Instrument are necessary to protect the right to life by ensuring that emergency services 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 recording of the call. The Instrument is subject to a number of safeguards, including the exception for recording calls to and from a declared emergency service facilities applies only if the Attorney-General is satisfied that the premises are operated by a police, fire or ambulance service of a State or of the Australian Capital Territory, or a service for despatching or referring matters for the attention of such 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 and notifying persons that communications to or from the facility may be listened to or recorded.