Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2026

EXPLANATORY STATEMENT

Issued by authority of the Minister for Home Affairs

Telecommunications (Interception and Access) Act 1979

Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2026

Legislative authority

1.          The Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2026 (the Instrument) is made under subsection 186A(2) of the Telecommunications (Interception and Access) Act 1979 (Principal Act), which provides that the Minister may, by legislative instrument, prescribe kinds of documents and other materials that the chief officer of an enforcement agency must cause to be kept in the agency’s records.
2.          The instrument commences on 1 April 2026. It is a legislative instrument for the purposes of the Legislation Act 2003 (the Legislation Act).

Purpose

1.          The Instrument prescribes kinds of documents and other materials that must be retained by enforcement agencies in relation to applications for journalist information warrants, including in relation to role of the Public Interest Advocate.
2.          The purpose of the instrument is to support accountability, scrutiny and transparency, in addition to the oversight role of the Commonwealth Ombudsman (Ombudsman), in relation to access to telecommunications data under the journalist information warrant regime, and the performance of the role of Public Interest Advocate.

Background

1.          The Principal Act provides that enforcement agencies are prohibited from authorising access to telecommunications data relating to a journalist, or their employer, if a purpose of making the authorisation is to identify a journalist’s source, unless a journalist information warrant has been obtained. Journalist information warrants are issued by an eligible Judge or Administrative Review Tribunal Member, who must consider each application against strict issuing criteria, including considering whether the public interest in issuing the warrant outweighs the public interest in protecting the identity of the source and having regard to any submissions made by a Public Interest Advocate.
2.          The role of a Public Interest Advocate is to make submissions on matters relevant to a decision to issue or refuse to issue a journalist information warrant. Public Interest Advocates are appointed by the Prime Minister to provide greater oversight and scrutiny of journalist information warrants to ensure law enforcement outcomes are balanced against the public interest.
3.          Subsection 186A(1) of the Principal Act prescribes a range of records, or copies of those records, that the chief officer of an enforcement agency must cause to be kept in the agency’s records. This includes documents and other materials of a kind prescribed under subsection 186A(2) for the purposes of paragraph 186A(1)(j).
4.          Subsection 186A(2) empowers the Minister to supplement enforcement agencies’ record-keeping obligations under paragraphs 186A(1)(a) to (i), by prescribing additional documents or other materials that must be retained, beyond those already listed in the Principal Act.
5.          The record-keeping requirements assist the Commonwealth Ombudsman to undertake inspections of enforcement agencies under Chapter 4A of the Principal Act, to assess enforcement agency compliance with Chapter 4 of the Principal Act. 

Operation

1.      The Instrument is necessary to prescribe the types of documents and other material that must be retained by enforcement agencies, in addition to those listed in the Principal Act.
2.      The Instrument prescribes a range of documents and other materials for the purposes of paragraph 186A(1)(j) of the Principal Act. The effect of the instrument is to require the chief officer of an enforcement agency to keep those documents and other materials, or copies thereof, in the agency’s records for the period specified in subsection 186A(3) of the Principal Act. That period is the period beginning when the item came into existence and ending at the earlier of:
   •            when 3 years have elapsed since the item came into existence; or
   •            when the Ombudsman gives a report to the Minister under section 186J of the Principal Act that is about records that include the item.
3.      Section 176 of the Principal Act provides that an enforcement agency is, subject to subsection 110A(7) of the Principal Act, a criminal law enforcement agency or, subject to subsection 176(7), an authority or body for which a declaration under subsection 176(3) is in force.

Consultation

1.      The Ombudsman and all affected Commonwealth, state and territory enforcement agencies able to apply for journalist information warrants were consulted on the policy embodied in this instrument.

Details of the instrument

1.      The details of the Instrument are at Attachment A.

Other considerations

1.      The instrument is subject to disallowance under section 42 of the Legislation Act. A Statement of Compatibility with Human Rights has been prepared in relation to the instrument. The Statement is included at Attachment B to this explanatory statement.
2.      The instrument replaces the Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015, which will be automatically repealed on 1 April 2026 by operation of section 50 of the Legislation Act 2003.
3.      The instrument was made by the Minister for Home Affairs under subsection 186A(2) of the Principal Act.

ATTACHMENT A

Details of the Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2026

1.          Section 1 sets out the name of the Instrument.

1.          Section 2 provides for the commencement of the Instrument on 1 April 2026.
2.          Section 3 sets out the authority of the Instrument under subsection 186A(2) of the Telecommunications (Interception and Access) Act 1979.
3.          Section 4 sets out definitions of terms used in this Instrument. The defined terms all take the same meaning as in the Principal Act, consistent with paragraph 13(1)(b) of the Acts Interpretation Act 1901 and are included in the instrument for ease of reference.
4.          Section 5 prescribes the kinds of documents and other materials that the chief officer of an enforcement agency must cause to be kept in the agency’s records in relation to applications for journalist information warrants, including in relation to role of the Public Interest Advocate, for the purposes of paragraph 186A(1)(j) of the Principal Act. The prescribed documents and other materials include:
   •            each written application for a journalist information warrant;
   •            documents or other materials indicating each occasion a Public Interest Advocate was given a copy of a written application, or notified of a proposal oral application for a journalist information warrant;
   •            each document containing further information given to an issuing authority in relation to an application for a journalist information warrant, including summaries of information provided orally; and
   •            any new or updated submissions prepared by a Public Interest Advocate in relation to an application for a journalist information warrant.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2026

This Disallowable 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 instrument

On 1 April 2026, the Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015 will sunset. This will be replaced by the Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2026 (the Instrument). No substantive changes have been made in the Instrument. The purpose of remaking the Instrument is to ensure the ongoing operation of the law.

The Telecommunications (Interception and Access) Act 1979 (Principal Act) enables enforcement agencies (as defined by subsection 176A of the Principal Act) to access telecommunications data for the purposes of enforcing the criminal law, locating missing persons, enforcing a pecuniary penalty or protecting public revenue.

The Principal Act’s journalist information warrant framework prohibits enforcement agencies from authorising access to telecommunications data relating to a journalist, or their employer, if a purpose of making the authorisation is to identify a journalist’s source, unless a journalist information warrant has been obtained. A Public Interest Advocate is able to make submissions on matters relevant to a decision to issue or refuse to issue a journalist information warrant. Public Interest Advocates are appointed by the Prime Minister to provide greater oversight and scrutiny of journalist information warrants to ensure law enforcement and national security outcomes are balanced against the public interest.

Subsection 186A(1) of the Principal Act prescribes the record-keeping obligations relating to agencies’ access of telecommunications data under the Principal Act, to support the accountability and oversight of the use of these powers. Subsection 186A(2) supplements those obligations by enabling the Minister to prescribe additional kinds of documents and other materials that an enforcement agency must cause to keep in the agency’s records.

Accordingly, the purpose of the Telecommunications (Interception and Access) (Obligation to Keep Records) Instrument 2015 is to require enforcement agencies to keep relevant documentation and materials relating to their applications for journalist information warrants and interactions with Public Interest Advocates.

The Instrument prescribes additional kinds of documents and other materials that must be retained by enforcement agencies in relation to applications for journalist information warrants, including in relation to role of the Public Interest Advocate, for the purposes of paragraph 186A(1)(j) of the Principal Act. The prescribed documents and other materials include:

• each written application for a journalist information warrant
• documents or other materials indicating each occasion a Public Interest Advocate was given a copy of a written application, or notified of a proposal oral application for a journalist information warrant
• each document containing further information given to an issuing authority in relation to an application for a journalist information warrant, including summaries of information provided orally; and
• any new or updated submissions prepared by a Public Interest Advocate in relation to an application for a journalist information warrant.

The effect of the instrument is to require the chief officer of an enforcement agency to keep those documents and other materials, or copies thereof, in the agency’s records for the period specified in subsection 186A(3) of the Principal Act. That period is the period beginning when the item came into existence and ending at the earlier of:

• when 3 years have elapsed since the item came into existence; or
• when the Ombudsman gives a report to the Minister under section 186J of the Principal Act that is about records that include the item.

Human rights implications

This Disallowable Legislative Instrument engages the following rights:

• the right to protection against arbitrary and unlawful interferences with privacy under Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR), and
• the right to freedom of expression under Article 19(2) and 19(3) of the ICCPR.

Right to Privacy

Article 17 of the ICCPR states that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Pursuant to Article 17(1) of the ICCPR, any interference with an individual’s privacy must have a lawful basis. Interference with privacy may be permissible provided that it is authorised by law and is not arbitrary. 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 mean that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’. The term unlawful means that no interference can take place except as authorised under domestic law.

This Instrument may limit the right to privacy, by requiring agencies to retain records of telecommunications data relating to a journalist or their employer for the purpose of identifying a confidential source in support of the journalist information warrant framework in the Principal Act. However, this limitation is reasonable in the circumstances as it is proportionate and necessary to the legitimate objective of supporting the accountability, scrutiny and transparency of enforcement agencies.

The journalist information warrant framework in the Principal Act contains unique oversight and safeguard mechanisms for access to telecommunications data, including independent issuing authorities and strict use, disclosure and destruction requirements, to protect the right to privacy in this context. The instrument enhances the protection of personal information by prescribing record-keeping obligations relating to agencies’ applications for journalist information warrants and related submissions made by Public Interest Advocates.

This Instrument broadly promotes the right to privacy through supporting accountability, scrutiny and transparency in relation to agencies’ access to telecommunications data authorised under the journalist information warrant regime, and the oversight role of the Commonwealth Ombudsman. To the extent that the Instrument limits the right to privacy, that limitation is reasonable, necessary and proportionate.

Freedom of Expression

Article 19(2) of the ICCPR states that:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 19(3) of the ICCPR states that:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals.

A journalist’s right to protect confidential information derives from the right to freedom of expression and is a fundamental aspect of an open and unimpeded press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. The journalist information warrant framework in the Principal Act engages the right to freedom of expression by prohibiting agencies from making authorisations to access telecommunications data relating to a journalist or their employer for the purpose of identifying a confidential source, unless a journalist information warrant is in force. The Principal Act contains specific safeguards and oversight mechanisms to protect the confidentiality of a journalist’s source, which includes any submissions made by a Public Interest Advocate.

The record-keeping obligations in the Instrument establish additional measures of accountability for access to telecommunications data under the journalist information warrant regime. These measures promote confidence in the privacy of particular communications, while further assuring the integrity of the journalist information warrant regime.

The Instrument promotes the right to freedom of expression as the extended oversight regime for access to telecommunications data under a journalist information warrant serves to protect freedom of speech, providing an important level of public accountability and scrutiny of agency practices by virtue of the Ombudsman’s public reporting regime.

Conclusion

This Disallowable Legislative Instrument is compatible with human rights as it protects and promotes the rights to privacy and freedom of expression by strengthening the measures of accountability, transparency and scrutiny within the Principal Act. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

The Hon Tony Burke MP
Minister for Home Affairs