Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2013

Administered by Attorney-General's Department

Legislation au F2013L01786 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 – New South Wales) 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 – New South Wales) 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 service facilities that are declared by the Minister pursuant to subsection 6(2B) of the Act.  The Telecommunications (Interception and Access)(Emergency Service Facilities – New South Wales) 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 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 region listed on the Instrument. 

The Royal Flying Doctor Service and the Office of Parliamentary Counsel were 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 – New South Wales) 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 in subsection 6(1) of the Act, facilitating the listening to and recording of emergency calls made to police, fire and ambulance services under subsection 6(2F) of the Act 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) Act 1979 was enacted to establish a general prohibition against the interception of communications passing over a telecommunications system, ensuring privacy protection. However, to facilitate the efficient handling of emergency situations, the Act includes provisions allowing lawful interception of communications to and from emergency service facilities. The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Instrument 2013 was introduced to specify certain emergency service facilities in New South Wales that are exempt from the general prohibition on telecommunications interception. This legislative instrument was enacted by the Australian Government and is designed to balance the need for emergency services to effectively respond to critical situations with the protection of individual privacy rights. The Instrument ensures that listening to or recording calls made to or from declared emergency service facilities does not contravene the general prohibition against interception, provided the facilities are operated by specified forces or services and are declared by the Minister. The measure is subject to safeguards, including the requirement to display signs notifying persons that communications may be monitored, and it aims to uphold human rights by ensuring that such interceptions are necessary and proportionate for the protection of life.

Scope and Application

The Telecommunications (Interception and Access) Act 1979 (the Act) generally prohibits the interception of communications passing over a telecommunications system. However, under specific conditions, the Act allows for the lawful engagement in duties relating to the receiving and handling of communications to or from an emergency service facility without contravening the general prohibition against interception. The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Instrument 2013 (the Instrument) extends these provisions by ensuring that listening to or recording calls to and from declared emergency service facilities in New South Wales does not constitute an interception under the Act. This exception applies when the Minister is satisfied that the premises are operated by a Commonwealth, State or ACT police force, a State or ACT fire or ambulance service, or a service for dispatching or referring matters for the attention of these services. The Instrument, made under subsection 6(2D) of the Act, specifies the name of the force or service operating the premises and the geographical region where these premises are located. The locations of these facilities, however, are not made public to protect them as critical infrastructure. This legislative instrument is compatible with human rights, as it includes safeguards such as requiring visible signs at each entrance to the facility notifying persons that communications may be listened to or recorded.

Key Provisions

The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Instrument 2013 (the Instrument) is designed to provide clarity on the exceptions to the general prohibition against telecommunications interception under the Telecommunications (Interception and Access) Act 1979 (the Act). Section 6(2F) of the Act allows for lawful listening and recording of communications to and from emergency service facilities, ensuring that such actions do not constitute an interception under the Act. This exception is crucial as it enables emergency services to respond effectively to emergencies without the need to seek consent from the callers. To qualify, the Minister must be satisfied that the facility is operated by one of the listed forces or services, including Commonwealth, State, or ACT police forces or services, State or ACT fire or ambulance services, or services that dispatch or refer matters to these services. This qualification is mandated by section 6(2B) of the Act and is further detailed in the Telecommunications (Interception and Access)(Emergency Service Facilities – New South Wales) Declaration 2013, which ensures that the operations at these facilities meet specific criteria. The Instrument imposes several obligations on the parties it governs. Firstly, it mandates that any person lawfully engaged in duties related to the receiving and handling of communications to or from an emergency service facility must comply with the Act’s provisions. This includes ensuring that the facility is operated by one of the specified forces or services, as outlined in section 6(2B) of the Act. Additionally, the Instrument requires the Minister to specify the name of the force or service operating the premises and the geographical region in which those premises are located, as per section 6(2D) of the Act. These specifications are essential to maintain transparency and Parliamentary scrutiny over the operation of these facilities. Furthermore, the Instrument mandates that clear signs must be visible at each entrance of the facility, notifying individuals that communications may be listened to or recorded, as required by section 6(2G) of the Act. Failure to comply with the provisions of the Instrument may result in various consequences. Although the Instrument itself does not specify penalties, breaches of the underlying Act, the Telecommunications (Interception and Access) Act 1979, may lead to significant legal ramifications. Section 10 of the Act provides for criminal penalties, including fines and imprisonment, for unauthorised interception of communications. The maximum penalty for such offences can extend to substantial fines and imprisonment for up to five years. Additionally, civil liabilities may arise under other sections of the Act, where compensation may be sought for damages caused by unauthorised interceptions. The safeguards and obligations imposed by the Instrument are integral to ensuring that any interceptions are conducted lawfully and for legitimate purposes, thereby mitigating the risk of legal repercussions for non-compliance.

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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.