Explanatory Statement
Issued by the Authority of the Attorney-General
Telecommunications (Interception and Access) Act 1979
Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2018
The Telecommunications (Interception and Access) Act 1979 (the TIA 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 – Australian Capital Territory) Instrument 2018 (the Instrument), is to ensure that listening to or recording calls to and from declared emergency service facilities in the Australian Capital Territory are not interceptions for the purposes of the TIA Act.
Subsection 6(2F) of the TIA 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 TIA 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 TIA Act. The Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Declaration 2018 (the Declaration) is made under subsection 6(2B) of the TIA Act. The Attorney-General, as Minister, is satisfied that the operations at these facilities meet the requirements of subsection 6(2B) of the TIA Act.
To protect against the publication of the location of the facilities, which are critical infrastructure, a declaration under subsection 6(2B) of the TIA Act is not a legislative instrument.
To maintain Parliamentary scrutiny of the declarations, subsection 6(2D) of the TIA 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 TIA Act. The Instrument replaces the previous Instrument and is being made to accommodate a designation of a new declared emergency service facility operated by the Australian Federal Police in the geographical region of Barton.
The Australian Federal Police was consulted on the Declaration and 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 – Australian Capital Territory) Instrument 2018 (the Instrument) is to ensure that listening to or recording calls to and from declared emergency service facilities are not interceptions for the purposes of the Telecommunications (Interception and Access) Act 1979 (the TIA Act).
Human rights implications
Interference with a person’s privacy or correspondence
Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour or reputation, and that everyone has the right to the protection of the law against such interference or attacks.
The right to privacy under Article 17 can be permissibly limited in order to achieve a legitimate objective and where the limitations are lawful and not arbitrary. The term ‘arbitrary’ means that any interference with privacy must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances.[1] 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’. Under Article 12(3) of the ICCPR, limitation of rights may be permissible where they are necessary to protect interests including national security, public order, or the rights and freedoms of others such as the right to life under Article 6 of the ICCPR.
Despite the general prohibition on the interception of communications without the knowledge of parties in subsection 7(1) of the TIA Act, subsection 6(2F) of the TIA Act facilitates the listening to and recording of emergency calls made to emergency services facilities.
The purpose of the Instrument is to ensure 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. In this regard, the measures are directed to protecting the right to life. The right to life includes obligations to promote life, including taking appropriate steps to protect the right to life of those within its jurisdiction. Recording of a call enables an emergency service to undertake appropriate clarification, review and audit in dealing with an emergency situation which may involve a threat to life.
The measures in the Instrument are reasonable and proportionate to achieving the objective. Only premises that handle emergency calls are listed. The Instrument is subject to a number of safeguards, including:
- the exception for recording calls to and from a declared emergency service facility 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 notifying persons that communications to or from the facility may be listened to or recorded.
Accordingly, 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 such as the right to life and to the extent that it limits human rights under Article 17 of the ICCPR, those limitations are authorised by law, reasonable and proportionate.
The Hon Christian Porter MP
Attorney-General
[1] Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994) at 8.3.