Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2015

Administered by Department of Home Affairs

Legislation au F2015L00867 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 – New South Wales) Instrument 2015

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 – New South Wales) Instrument 2015 (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 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 service facilities that are declared by the Minister pursuant to subsection 6(2B) of the TIA Act.  The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Declaration 2015 (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 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 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 adds new emergency service facilities operated by Airservices Australia’s Aviation Rescue and Fire Fighting Service in the geographical region listed on the Instrument. 

Airservices Australia’s Aviation Rescue and Fire Fighting 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 – New South Wales) Instrument 2015 (‘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 Telecommunications (Interception and Access) Act 1979 (the TIA 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 TIA Act, facilitating the listening to and recording of emergency calls made to police, fire and ambulance services under subsection 6(2F) of the TIA 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 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 and notifying persons that communications to or from the facility may be listened to or recorded.  As an additional safeguard, only premises that 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 TIA 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 – New South Wales) Instrument 2015 was enacted to address the problem of ensuring that listening to or recording calls to and from a declared emergency service facility does not constitute an interception under the Telecommunications (Interception and Access) Act 1979 (TIA Act). This Instrument is a legislative instrument made under the authority of the Attorney-General to provide an exception for emergency services facilities in New South Wales, ensuring these services can operate effectively without the need to obtain consent for recording calls in emergency situations. The policy objective is to balance the need for rapid response to emergencies with the protection of privacy rights, ensuring that such interceptions are authorised by law, reasonable, and proportionate in the context of protecting life and safety. The Instrument complements the TIA Act by specifying the name of the force or service operating the premises and the geographical region in which those premises are located, while maintaining the confidentiality of the exact locations of these critical infrastructure facilities.

Scope and Application

The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Instrument 2015 amends the Telecommunications (Interception and Access) Act 1979 to ensure 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 applies to persons lawfully engaged in duties related to receiving and handling communications to or from these facilities, including those operating premises listed in the Instrument, which encompasses Commonwealth, State, or ACT police forces, fire or ambulance services, or services for dispatching or referring matters to these services. The geographical scope of this exemption extends to the specific regions identified in the Instrument. The Instrument, which is not a legislative instrument, is designed to protect the critical infrastructure by not disclosing the exact locations of these facilities publicly. Instead, it specifies the names of the forces or services and the geographical regions where these facilities are located. The Instrument is effective from the day after its registration. The safeguards and requirements outlined in the Act, such as the need for visible signage at each facility entrance notifying persons that communications may be listened to or recorded, ensure that any limitations on privacy rights are reasonable and proportionate to the legitimate objective of ensuring emergency services can function effectively.

Key Provisions

The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Instrument 2015 (the Instrument) serves to clarify that listening to or recording calls made to and from emergency service facilities in New South Wales is not considered an interception under the Telecommunications (Interception and Access) Act 1979 (TIA Act). This exception is outlined in subsection 6(2F) of the TIA Act, which allows individuals who are lawfully engaged in duties related to receiving and handling communications for emergency services to listen to or record these communications without contravening the general prohibition against interception. Subsection 6(2B) of the TIA Act stipulates that the Minister must be satisfied that the premises in question are operated by a recognised emergency service, such as a police force, fire or ambulance service, or a dispatch service for these entities, and that these premises are declared by the Minister. The Telecommunications (Interception and Access) (Emergency Service Facilities – New South Wales) Declaration 2015 (the Declaration) lists the facilities that meet these criteria and is made under subsection 6(2B) of the TIA Act. The Instrument, created under subsection 6(2D) of the TIA Act, specifies the name of the force or service operating the premises and the geographical region in which these premises are located, while the detailed location information remains undisclosed to protect critical infrastructure. The Act imposes several obligations on parties and entities it governs. It mandates that any listening or recording of communications at declared emergency service facilities must be carried out by personnel lawfully engaged in handling such communications. Furthermore, the Minister must be satisfied that the facilities meet specific criteria and are operated by a recognised emergency service. This satisfaction must be documented and communicated through the Declaration under subsection 6(2B) of the TIA Act. The Instrument, in turn, requires the Minister to specify the name of the force or service and the geographical region of the premises, while safeguarding the exact locations as sensitive information. The Act also mandates that clear signs be posted at each entrance to the emergency service facilities, notifying individuals that their communications may be listened to or recorded, as outlined in subsection 6(2G) of the TIA Act. Breaches of the provisions outlined in the Instrument may result in civil and criminal consequences. Although the specific penalties are not detailed in the explanatory statement, the TIA Act generally provides for substantial penalties for unauthorised interceptions of telecommunications. Such penalties can include fines and imprisonment, reflecting the seriousness with which the Act treats violations of its interception provisions. The protections and safeguards embedded in the Instrument are designed to ensure that any limitations on privacy rights are strictly proportionate and necessary for the legitimate objective of enhancing emergency response capabilities.

Legal classification tags

Area of Law
Telecommunications Law
Instrument
Instrument
Concepts
Commencement Provisions
Regulatory Standards
Prohibited Conduct

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.