Telecommunications (Interception and Access) (Emergency Services Facilities — Western Australia) Instrument 2015

Administered by Department of Home Affairs

Legislation au F2015L00866 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 – Western Australia) Instrument 2015

The Telecommunications (Interception and Access) Act 1979 (the TIA Act) establishes a general prohibition on the interception of communications passing over a telecommunications system.  The purpose of the Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) 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 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 – Western Australia) 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 classified as 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 Firefighting Service and the Western Australian Department of Fire and Emergency Services in the geographical regions listed on the Instrument. 

Airservices Australia’s Aviation Rescue and Firefighting Service and the Western Australian Department of Fire and Emergency Services 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 – Western Australia) 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, 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 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 – Western Australia) Instrument 2015 was enacted to address the need for emergency services to be able to listen to and record calls without contravening the general prohibition on the interception of communications set out in the Telecommunications (Interception and Access) Act 1979 (TIA Act). The Instrument aims to ensure that monitoring communications at emergency service facilities does not constitute an interception for the purposes of the TIA Act. This is achieved by allowing lawful interception of communications at emergency service facilities that are declared by the Minister under subsection 6(2B) of the TIA Act. The Minister must be satisfied that the facilities are operated by specified emergency services and are capable of dealing with emergency requests. The policy objective of the Instrument is to protect the right to life by enabling emergency services to respond quickly to emergencies without requiring consent from the caller to record the call. This is balanced with safeguards to protect privacy, such as the requirement for visible signs at emergency facilities notifying persons that communications may be intercepted. The Instrument is made under subsection 6(2D) of the TIA Act and replaces a previous Instrument by adding new facilities operated by Airservices Australia’s Aviation Rescue and Firefighting Service and the Western Australian Department of Fire and Emergency Services in specified regions.

Scope and Application

The Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2015 applies to the operations and premises of certain emergency service facilities in Western Australia that have been declared by the Minister under the Telecommunications (Interception and Access) Act 1979. Specifically, it applies to Commonwealth, State or ACT police forces or services, State or ACT fire or ambulance services, or services for dispatching or referring matters to those services. The purpose of the Instrument is to ensure that listening to or recording calls to and from a declared emergency service facility does not constitute an interception for the purposes of the TIA Act. The Instrument achieves this by specifying the names of the forces or services operating the premises and the geographical regions in which they are located. It replaces the previous Instrument and adds new emergency service facilities operated by Airservices Australia’s Aviation Rescue and Firefighting Service and the Western Australian Department of Fire and Emergency Services in the specified regions. The location of these facilities, which are considered critical infrastructure, remains protected as classified information and is not made public. The Instrument extends the application of the TIA Act by providing a clear exception for emergency service facilities while maintaining necessary safeguards to protect privacy rights.

Key Provisions

The Telecommunications (Interception and Access) (Emergency Service Facilities – Western Australia) Instrument 2015, made under section 6(2D) of the Telecommunications (Interception and Access) Act 1979 (TIA Act), ensures that listening to or recording calls to and from declared emergency service facilities does not constitute an interception for the purposes of the TIA Act. This exception is crucial for enabling emergency services to respond swiftly and effectively in emergency situations, as it allows personnel lawfully engaged in duties relating to the receiving and handling of communications to or from these facilities to listen to or record the communications without contravening the general prohibition against interception (TIA Act, s 6(2F)). 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 (TIA Act, s 6(2B)). This exception applies only to emergency service facilities that are declared by the Minister as meeting the requirements specified in the TIA Act. The Instrument imposes specific obligations and requirements on the parties and entities it governs. It mandates that the premises in question must be 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. Furthermore, the Instrument requires that signs be clearly visible at each entrance to the facility, notifying persons that communications to or from the facility may be listened to or recorded, as per subsection 6(2G) of the TIA Act. To maintain Parliamentary scrutiny of these declarations, the Instrument specifies the name of the force or service operating the premises and the geographical region in which those premises are located. The TIA Act itself includes provisions for offences, penalties, and civil or criminal consequences for breaches of its provisions. However, the specific offences, penalties, and consequences related to the emergency service facilities exception under section 6(2F) are not detailed in the Instrument. It is important to refer to the TIA Act for comprehensive information on these aspects. The general provisions of the TIA Act likely apply, including potential civil and criminal penalties for unauthorised interception of communications, which could include fines and imprisonment depending on the severity of the breach. The compatibility statement issued with the Instrument affirms that it is consistent with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. It emphasises that the measures in the Instrument are necessary to protect the right to life by ensuring that emergency services can assist an emergency caller and respond to an emergency situation without requiring the caller’s consent to recording the call. The safeguards built into the Instrument, such as the requirement for visible signs and the protection of facility locations as critical infrastructure information, ensure that any limitations on the right to privacy are reasonable and proportionate to the legitimate objective of protecting human life.

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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.