Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities –Victoria) Instrument 2007 (No. 2)
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.
The Telecommunications (Interception and Access) (Emergency Service Facilities –Victoria) Instrument 2007 (No. 2) is made under subsection 6(2D) of the Act. The related declaration, the Telecommunications (Interception and Access) (Emergency Service Facilities - Victoria) Declaration 2007 (No. 2), is made under subsection 6(2B) of the Act.
The Instrument and Declaration have been amended to amend a reference from Port Melbourne to South Melbourne as this more accurately reflects the geographical location of an emergency service facility operated by the Metropolitan Ambulance Service. Further amendments have been made to include emergency service facilities operated by the Metropolitan Ambulance Service in Burwood and Richmond and an emergency service facility operated by the Air Ambulance Victoria in Essendon.
Consultation with the Metropolitan Ambulance Service and Air Ambulance Victoria was undertaken in relation to the Instrument and Declaration. The Attorney-General is satisfied that the operations at these facilities meet the requirements of section 6 of the Act being facilities operated by an ambulance service of a State to enable that service to deal with requests for assistance in an emergency.
This instrument commences on the day after it is registered.
Overview
The Telecommunications (Interception and Access) (Emergency Service Facilities –Victoria) Instrument 2007 (No. 2) is an amendment to the Telecommunications (Interception and Access) Act 1979, which was enacted to establish a general prohibition against the interception of communications passing over a telecommunications system. The Instrument was introduced to address the gap in the Act concerning the lawful monitoring of communications to and from emergency service facilities, ensuring that such monitoring does not constitute an interception under the Act. This was achieved by specifying that persons lawfully engaged in duties relating to the receiving and handling of communications to or from declared emergency service facilities may listen to or record such communications without contravening the general prohibition against interception. The Instrument was made under the authority of the Attorney-General, and the associated declaration, which is not a legislative instrument to protect the confidentiality of the facilities' locations, was also made under the Act. The Instrument specifies the names of the forces or services operating the premises and the geographical regions in which they are located, thus maintaining Parliamentary scrutiny of the declarations.
Scope and Application
The Telecommunications (Interception and Access) Act 1979 serves as the primary legislation governing the interception and access of telecommunications in Australia. This Act generally prohibits the interception of communications passing over a telecommunications system, but includes specific provisions for emergency services facilities. The Act applies to any person or entity that may engage in the interception of telecommunications, encompassing a broad range of conduct and transactions across various industries. Its jurisdictional reach is national, applying throughout the Commonwealth of Australia. However, the Act allows for certain exceptions where individuals lawfully engaged in duties related to the receiving and handling of communications to or from an emergency service facility may listen to or record such communications without contravening the general prohibition against interception. This exception is subject to the facility being declared by the Minister under the Act, and the geographical details of the facility being specified by the Minister in a legislative instrument. The Telecommunications (Interception and Access) (Emergency Service Facilities –Victoria) Instrument 2007 (No. 2) further clarifies and specifies the facilities in Victoria that are exempt from the general interception prohibition, ensuring that such interceptions are not considered unlawful. This instrument and its associated declaration are designed to protect the critical infrastructure of emergency services while maintaining necessary oversight through legislative means.
Key Provisions
The primary operative sections of this Instrument, as referenced in the Telecommunications (Interception and Access) Act 1979 (the Act), are sections 6(2B), 6(2D), and 6(2F). Section 6(2B) allows the Minister to declare certain emergency service facilities, ensuring that listening to or recording communications to and from these facilities does not constitute an interception under the general prohibition of the Act (subsection 6(2F)). This exception applies only to facilities declared by the Minister under section 6(2B) and specified in a legislative instrument under section 6(2D). The Instrument, made under section 6(2D), specifies the name of the force or service and the geographical region of the premises.
The Act imposes certain obligations and requirements on the parties it governs. The Minister is required to declare emergency service facilities under section 6(2B) of the Act, ensuring that these facilities meet the criteria of being operated by an ambulance service of a State to handle emergency requests. Additionally, under section 6(2D), the Minister must specify the name of the force or service and the geographical region in a legislative instrument. These requirements are intended to protect the critical infrastructure and maintain the confidentiality of these facilities.
The Act also addresses potential breaches and their consequences. While the Act does not explicitly outline offences, penalties, or civil/criminal consequences within this Instrument, it is important to note that any interception not permitted by the Act could potentially lead to legal action. The severity of penalties would depend on the specific breach and the context in which it occurs, as outlined in other sections of the Telecommunications (Interception and Access) Act 1979. The Act’s overarching framework ensures that the specified activities of emergency service facilities do not contravene the general prohibition on interception, thus preserving the integrity of the telecommunications system while facilitating necessary emergency responses.