Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities –Western 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 –Western Australia) Instrument 2007 is made under subsection 6(2D) of the Act. The related declaration, the Telecommunications (Interception and Access) (Emergency Service Facilities - Western Australia) Declaration 2007, is made under
subsection 6(2B) of the Act.
There have been no material changes to the declared facilities in Western Australia 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 – Western Australia) Instrument 2007 was enacted to refine and clarify the legal framework surrounding the interception of telecommunications for emergency service facilities in Western Australia. This instrument was developed in response to the need for a more streamlined and manageable approach to the declarations of emergency service facilities under the Telecommunications (Interception and Access) Act 1979. Initially, a broad declaration was made in 2005, but due to complexities and the need for urgent amendments, it was deemed more efficient to create multiple, specific declarations and corresponding legislative instruments. This change aims to ensure that lawful employees of emergency services can listen to or record communications without breaching the general prohibition on interception, while also maintaining parliamentary oversight and protecting the critical nature of these facilities by not disclosing their exact locations. The Instrument is a legislative tool under subsection 6(2D) of the Act, and it works in conjunction with the Telecommunications (Interception and Access) (Emergency Service Facilities - Western Australia) Declaration 2007 under subsection 6(2B) of the Act.
Scope and Application
The Telecommunications (Interception and Access) Act 1979 generally prohibits the interception of communications passing over a telecommunications system. However, it provides an exception for persons lawfully engaged in duties related to receiving and handling communications to or from an emergency service facility, which is declared by the Minister. The Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2007 was made under subsection 6(2D) of the Act, specifying the names of the forces or services operating the premises and the geographical regions in which those premises are located, while the related declaration was made under subsection 6(2B) of the Act. This instrument does not involve any material changes to the previously declared facilities in Western Australia and commences on the day after it is registered. Notably, the declarations themselves are not legislative instruments to protect the sensitive locations of these critical infrastructure facilities, and parliamentary scrutiny is maintained through the legislative instruments specifying the declarations' details.
Key Provisions
The Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2007 (the Instrument) operates under subsection 6(2D) of the Telecommunications (Interception and Access) Act 1979 (the Act) to specify certain details about the emergency service facilities in Western Australia. This instrument requires the Minister to detail the name of the force or service operating the premises and the geographical region in which these premises are located (subsection 6(2D)). This ensures that the necessary details are disclosed to maintain Parliamentary scrutiny without revealing the specific locations of the facilities (subsection 6(2B)). By doing so, the Instrument facilitates the ease of future amendments, which may be necessary for operational reasons.
The obligations imposed by the Instrument include ensuring that the Minister, who is the Attorney-General in this context, specifies the relevant details of the emergency service facilities. The Minister must make these declarations under subsection 6(2B) of the Act and subsequently specify the details under subsection 6(2D). This dual process ensures that the locations of critical infrastructure are protected while still allowing for transparency and scrutiny through Parliamentary oversight. The Instrument and corresponding declarations must be made in a manner that avoids the inadvertent disclosure of sensitive information.
Non-compliance with the requirements set out in the Instrument and the Act could lead to civil or criminal consequences. Although the explanatory statement does not specify particular offences or penalties, the general prohibition against interception outlined in the Act implies that unauthorised interception of communications could result in legal repercussions. Individuals or entities found to be in breach of these provisions could face penalties, which are typically detailed within the Act itself.
The Instrument is designed to ensure that lawful activities related to emergency service facilities do not contravene the general prohibition against the interception of telecommunications. Specifically, subsection 6(2F) of the Act allows for the lawful listening to or recording of communications to or from emergency service facilities by persons engaged in duties related to receiving and handling these communications. This exception is contingent on the facilities being declared by the Minister under subsection 6(2B) and the details of these facilities being specified under subsection 6(2D). The aim is to balance the need for operational flexibility with the imperative to safeguard critical infrastructure and maintain public trust.