Telecommunications (Interception and Access) (Emergency Services Facilities — Australian Capital Territory) Instrument 2018

Administered by Department of Home Affairs

Legislation au F2018L00258 Not in force Legislative Instrument

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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.

Overview

The Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2018 was enacted to ensure that listening to or recording calls to and from declared emergency service facilities in the Australian Capital Territory do not constitute interceptions under the Telecommunications (Interception and Access) Act 1979. This Instrument was introduced to address the need for emergency services to promptly respond to emergency situations, including threats to life, without the requirement to first obtain consent from the caller. It is made under the authority of the Attorney-General, who is satisfied that the operations at these facilities meet the necessary requirements, thereby allowing for the protection of critical infrastructure by not disclosing the specific locations of these facilities. The Instrument aims to balance the right to privacy with the need for effective emergency response, ensuring that any limitations on privacy are reasonable and proportionate to the legitimate objective of protecting the right to life and ensuring public safety.

Scope and Application

The Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2018 applies to persons lawfully engaged in duties relating to the receiving and handling of communications to or from declared emergency service facilities in the Australian Capital Territory. This includes emergency services personnel from Commonwealth, State, or ACT police forces or services, as well as State or ACT fire or ambulance services, or services for dispatching or referring matters for the attention of these services. The Instrument ensures that listening to or recording calls to and from these facilities do not constitute interceptions under the Telecommunications (Interception and Access) Act 1979 (TIA Act). The Instrument is a legislative instrument made under subsection 6(2D) of the TIA Act, specifying the name of the force or service operating the premises and the geographical region in which they are located. The Instrument replaces a previous one to accommodate a new declared emergency service facility operated by the Australian Federal Police in the Barton region. The Instrument is compatible with human rights, as the measures it introduces are necessary to protect the right to life and are proportionate to the legitimate objective of enabling emergency services to respond quickly to emergencies.

Key Provisions

The Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2018 (the Instrument) is designed to ensure that the listening to or recording of communications to and from declared emergency service facilities in the Australian Capital Territory are not considered interceptions under the Telecommunications (Interception and Access) Act 1979 (the TIA Act) (Section 6(2F)). The Instrument specifies the geographical regions and the entities that can benefit from this exception, which is in place to facilitate the swift and efficient handling of emergency situations. This legal framework aims to protect the critical infrastructure of these emergency service facilities, ensuring they can operate without unnecessary restrictions while still respecting privacy rights to a reasonable extent. The obligations imposed by the Instrument require that the emergency service facilities be operated by specific entities, such as Commonwealth, State, or Australian Capital Territory police forces, fire or ambulance services, or services that dispatch or refer matters for the attention of these emergency services (Section 6(2B)). Additionally, the Minister, who is the Attorney-General, must be satisfied that the premises meet certain criteria, including the requirement to display signs at each entrance notifying individuals that communications may be listened to or recorded (Section 6(2G)). The Instrument also mandates the specification of the name of the operating force or service and the geographical region where these facilities are located, ensuring transparency and maintaining parliamentary scrutiny. Failure to comply with the requirements set out in the Instrument can result in legal consequences. While the Instrument itself does not explicitly state penalties for non-compliance, breaches of the broader TIA Act can lead to substantial fines and imprisonment. For example, under Section 13 of the TIA Act, unauthorised interception of communications can result in penalties of up to $222,000 for individuals and $1,110,000 for bodies corporate, along with potential imprisonment for up to five years. Furthermore, the Act provides for additional penalties in cases of aggravated interception, such as when it involves national security or when it is done maliciously. In summary, the Telecommunications (Interception and Access) (Emergency Service Facilities – Australian Capital Territory) Instrument 2018 is a legislative measure that allows for the lawful recording of communications to and from emergency service facilities in the Australian Capital Territory. It imposes specific obligations on the entities operating these facilities and ensures compliance through the declaration process. While the Instrument does not detail penalties, the overarching TIA Act provides for significant penalties for any breaches, underscoring the importance of adhering to the legal framework established to facilitate emergency responses while balancing privacy considerations.

Legal classification tags

Area of Law
Telecommunications Law
Privacy Law
Instrument
Instrument
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Prohibited Conduct
Human Rights Law
Catchwords
Emergency Service Facilities
Geographical Region
Unlawful Interference with Privacy

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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.