Telecommunications (Interception and Access) (Emergency Service Facilities — Western Australia) Instrument 2013

Administered by Attorney-General's Department

Legislation au F2013L01787 Not in force Legislative Instrument

Legislation content

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 2013

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 – Western Australia) Instrument 2013 (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 – Western Australia) Declaration 2013 (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 Commonwealth, State or ACT police force or service, a State or ACT 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 a new emergency service facility operated by the Royal Flying Doctor Service in the geographical regions listed on the Instrument. 

The Royal Flying Doctor Service was consulted on the Declaration and the Instrument. 

The Instrument commences on the day after it is registered.

 

 

 

 

 

 

 

 

 

 

 

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

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.

Overview of the Legislative Instrument

The purpose of the Telecommunications (Interception and Access)(Emergency Service Facilities – Western Australia) Instrument 2013 (‘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

Unlawful or arbitrary interference with a person’s privacy or correspondence

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) prohibits arbitrary or unlawful interference with a person’s privacy, family, home or correspondence.  Interferences with privacy may be permissible, provided that they are authorised by law and not arbitrary.  In order for an interference with the right to privacy not to be ‘arbitrary’, the interference must be for a reason consistent with the provisions, aims and objectives of the ICCPR and 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’.

Interceptions of telecommunications will limit the right to protection from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR.  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.

Despite the general prohibition on the interception of communications without the knowledge of parties, facilitating the listening to and recording of emergency calls made to police, fire and ambulance services under subsection 6(2F) of the TIA is compatible with Article 17 of the ICCPR.  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 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 Commonwealth, State or ACT police force or service, a State or ACT fire or ambulance service, or a service for despatching, or referring matters for the attention of, those 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.

To the extent that the measures in the legislative instrument may limit the right to protection from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR, the limitation is proportionate to the legitimate objective.

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. 

 

Senator the Hon George Brandis QC

Attorney-General

 

 

Overview

The Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2013 was introduced to address the need for emergency services to effectively manage and respond to emergency situations without the hindrance of legal restrictions on telecommunications interception. This Instrument complements the Telecommunications (Interception and Access) Act 1979, which generally prohibits the interception of communications without the consent of the parties involved. The primary objective of the Instrument is to ensure that emergency service facilities can legally monitor and record calls without contravening the general prohibition against interception. This was enacted by the Australian Parliament to provide a clear legal framework that allows emergency services to perform their duties more efficiently, thereby enhancing public safety and the protection of human rights. The Instrument specifies that only authorised personnel can listen to or record communications at declared emergency service facilities, subject to certain conditions and safeguards to protect privacy and ensure transparency.

Scope and Application

The Telecommunications (Interception and Access) Act 1979, as extended by the Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2013, sets forth a comprehensive framework governing the interception and access to telecommunications. The Act generally prohibits the interception of communications without the knowledge of the parties involved. However, the Instrument aims to ensure that listening to or recording calls to and from declared emergency service facilities is not considered an interception under the Act, provided certain conditions are met. This exception applies specifically to facilities operated by a Commonwealth, State or ACT police force or service, a State or ACT fire or ambulance service, or a service for dispatching or referring matters to these services. The Minister must be satisfied that these facilities are appropriately equipped to handle emergency requests, and this satisfaction is documented in a declaration under subsection 6(2B) of the Act. Additionally, to safeguard the critical infrastructure status of these facilities, their exact locations are not made public. Instead, the Instrument specifies only the name of the force or service operating the premises and the geographical region in which those premises are located. This approach ensures that while the right to privacy is respected, the urgent needs of emergency services are also addressed, thereby balancing human rights considerations with practical operational requirements.

Key Provisions

The Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2013 operates under the framework established by the Telecommunications (Interception and Access) Act 1979 (TIA). The Instrument, specifically through subsection 6(2F) of the TIA, permits lawful interception of communications by authorised personnel engaged in duties relating to emergency service facilities. It ensures that listening to or recording communications to and from these facilities does not constitute an interception under the Act, provided the premises are operated by a listed emergency service such as a police, fire, or ambulance service. This exception is contingent upon a declaration by the Minister, as outlined in subsection 6(2B) of the TIA, which mandates that the Minister must be satisfied that the facility is operated by an eligible service and can handle emergency requests. The Instrument also mandates that signs must be clearly visible at each entrance to the facility, notifying individuals that communications may be listened to or recorded, as per subsection 6(2G) of the TIA. The Instrument imposes specific obligations on the parties and entities it governs. Firstly, it requires the Minister to ensure that the premises in question are indeed operated by an authorised emergency service. This involves a rigorous assessment to confirm that the facility meets the criteria set out in the Act. Additionally, the Instrument requires that facilities must display appropriate signage to inform individuals that their communications may be intercepted, in compliance with subsection 6(2G) of the TIA. The Minister must also ensure that the location of these facilities is protected as critical infrastructure information, which is not made public and is classified appropriately. The Instrument, by legislative instrument, specifies only the name of the force or service operating the premises and the geographical region in which those premises are located. There are potential consequences for breach of the provisions contained in the Instrument. While the Instrument itself does not explicitly outline penalties for non-compliance, breaches of the overarching Telecommunications (Interception and Access) Act 1979 can result in significant legal repercussions. Under section 19 of the TIA, any person who intercepts a communication in contravention of the Act may be subject to criminal penalties. Specifically, for an individual, the maximum penalty is imprisonment for five years, or a fine of up to $162,000, or both. For a body corporate, the maximum penalty is a fine of up to $810,000. Furthermore, under section 20 of the TIA, any person who uses, discloses, or threatens to use or disclose information obtained from an interception in a manner that contravenes the Act may also face criminal penalties, including imprisonment for up to three years or fines up to $32,400 for individuals, and fines up to $162,000 for a body corporate. These provisions underscore the seriousness with which the law treats breaches of its interception provisions.

Legal classification tags

Area of Law
Privacy Law
Instrument
Instrument
Concepts
Definitions & Interpretation
Offence Provisions
Reporting & Disclosure Obligations

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.