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2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(INFORMATION DISCLOSURE, NATIONAL INTEREST AND
OTHER MEASURES) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
the Honourable Michelle Rowland MP)
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(INFORMATION DISCLOSURE, NATIONAL INTEREST AND OTHER
MEASURES) BILL 2022
GENERAL OUTLINE
1. The Bill amends the Telecommunications Act 1997 (the Act) to improve the
operation of information disclosure provisions. The Bill addresses a range of matters
associated with information disclosure and the national interest, including facilitating
assistance provided by the telecommunications industry to law enforcement agencies and
emergency service organisations. The Bill amends the record of disclosure requirements
by increasing record keeping requirements to enable oversight of underlying laws or
warrants which required or authorised a disclosure. In addition, the Bill make two
technical amendments to the Telstra Corporation and Other Legislation Amendment Act
2021 (the Amendment Act) to ensure that the obligations and measures in the Act will
commence as originally intended.
Part 1: Amendments relating to information use and disclosure
2. Part 13 of the Act requires that carriers and carriage service providers do not
disclose information which relates to communications carried over their networks.
However, recognising there may be legitimate circumstances that require disclosure in the
public interest, a number of exceptions to this general prohibition exist, which apply in
limited and specified circumstances. Several amendments to information disclosure
provisions are proposed in the Bill.
3. Part 1 of the Bill introduces amendments to information disclosure and national
interest provisions of the Act. Part 1 will commence on the day after this Act receives
Royal Assent. These measures will:
a. Permit the use and disclosure of information for purposes connected to
prevention of a serious threat to the life or health of a person;
i. In a number of missing persons cases, law enforcement agencies have
experienced practical challenges in ascertaining reasonable belief about
the 'imminence' of a threat to the life or health of a person, even when
the seriousness of the threat was clearly established. In both the Inquest
into the death of Thomas Hunt (findings released
4 September 2020), and another recent inquest which has not been
made public, the 'imminent' qualifier was a barrier to progressing a
triangulation request that may have helped locate the individuals in
question. A New South Wales Deputy State Coroner has recommended
the Commonwealth urgently reform section 287 of the Act by removing
the qualifier of an 'imminent' threat in the provision.
ii. The Australian Law Reform Commission (ALRC) recommended
reform to the use and disclosure principles in the Privacy Act so that an
exception applies where the threat is serious, but not necessarily
imminent. A similar recommendation was made by in the ALRC
Report 108 (72-7) in relation to section 287 of the Act in light of the
public interest purposes for doing so. While legislative amendments to
the Privacy Act were introduced, as referenced in the Privacy
Amendment (Enhancing Privacy Protection) Bill 2012 to address the
recommendation, a similar amendment to section 287 of the Act has not
yet been introduced. This amendment would bring section 287 in line
with the 'Permitted general situations' table at section 16A of the
Privacy Act.
b. Authorise the use and disclosure of unlisted numbers and associated addresses
for purposes dealing with matters raised by a call to an emergency service
number;
i. This amendment authorises use and disclosure of information contained
in an integrated public number database when the disclosure of such
information is for the purposes connected with a call to an emergency
service number and it is unreasonable to obtain the person's consent.
Only 5% of 72 million active phone numbers are listed, with mobile
numbers being unlisted by default, this provision allows emergency call
persons to access this information and respond to emergencies; and
c. Confer civil immunities on telecommunications companies for the provision of
reasonably necessary assistance to the Commonwealth, States or Territories to
respond during emergencies if a national emergency declaration is in force.
i. Carriers and carriage service providers may be asked to provide help as
is reasonably necessary in connection with preparing for, responding to
or recovering from an emergency.
ii. This proposed amendment reflects the intention that such entities
should not be liable to an action or other proceeding in relation to
providing assistance.
Part 2: Amendments to the record of disclosure requirements
4. Part 2 introduces amendments to the record of disclosure requirements intended to
improve transparency. Part 2 will commence six months after the day this Act receives
Royal Assent.
a. These measures will change record-keeping arrangements to require more
detailed records of disclosure including underlying laws or warrants. This
includes the name of the person who issues the warrant and the date of issuing.
i. This recommendation was informed by a recommendation from the
Office of the Australian Information Commissioner (OAIC), which
noted that the lack of detailed information in the record of disclosure
limits their oversight capability. This applies particularly to the OAIC's
compliance monitoring of such disclosures under s 309 of the Tel Act,
and its ability to determine whether only necessary personal
information is being disclosed by service providers when responding to
information requests from enforcement agencies.
Part 3: Other Measures
5. Part 3 introduces technical amendments to the Telstra Corporation and Other
Legislation Amendment Act 2021 to ensure that Act commences as was originally
intended. Part 3, Division 1 commences immediately after the commencement of section 2
of the Telstra Corporation and Other Legislation Amendment Act 2021. Part 3, Division 2
commences immediately after the commencement of item 81 of Schedule 1 of the Telstra
Corporation and Other Legislation Amendment Act 2021 (the Amending Act) and Part 3,
Division 3 will commence will commence immediately after the Bill receives Royal
Assent. This part will:
a. Ensure that the obligations and measures in the Act will commence as
originally intended.
i. Telstra Corporation Limited (Telstra) had intended to apply for Scheme
of Arrangement Orders under section 413 of the Corporations Act 2001
to the Federal Court of Australia. However, subsequent to the passage
of the Amending Act, Telstra commenced the proceedings in the
Supreme Court of New South Wales.
b. Redefine the definition of a telecommunications transmission tower in the
Amending Act to not inadvertently apply to a too broad category of entity.
FINANCIAL IMPACT STATEMENT
6. There are no financial impacts arising from this Bill.
CONSULTATION
7. The Department of Infrastructure, Transport, Regional Development,
Communications and the Arts (the Department) conducted a targeted consultation process
with key stakeholders on the measures in the Bill. The Department has consulted with;
Department of the Prime Minister and Cabinet; the Attorney-General's Department; the
Department of Home Affairs; the Office of the Australian Information Commissioner; and
State and Territory Law Enforcement who have expressed support for the Bill. The
agreement of the Attorney-General was obtained in relation to information disclosure
provisions relevant to his portfolio responsibilities. Engagement on the proposed
amendments has occurred with relevant industry stakeholders, including the
Communications Alliance, and major carriers, and a pre-introduction version of the Bill
was supplied.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
Act Telecommunications Act 1997
ALRC Australian Law Reform Commission
Amendment Act Telstra Corporation and Other Legislation Amendment Act 2021
ICCPR The International Covenant on Civil and Political Rights
IPND Integrated Public Number Database
Privacy Act Privacy Act 1988
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications Legislation Amendment (Information Disclosure,
National Interest and Other Measures) Bill 2022
1. This Bill 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 Bill
2. The Bill contains a range of measures which will amend the Telecommunications
Act 1997 (Telecommunications Act) to improve the operation of information disclosure
provisions on law enforcement agencies and facilitate assistance provided by the
telecommunications industry to law enforcement agencies and emergency service
organisations.
Human rights implications
3. The Bill engages the right to privacy in Article 17 of the International Covenant on
Civil and Political Rights (ICCPR).
Information Disclosure
Right to protection against arbitrary or unlawful interference with privacy
4. The Bill limits privacy by expanding the ability of law enforcement agencies to
request telecommunications companies' assistance in serious emergency situations which
are not necessarily 'imminent.' This is reasonable, necessary and proportionate as it strikes
an appropriate balance between protecting the privacy of personal communication and the
prevention of threats to a person's safety and wellbeing. Two recent coronial inquests both
concluded that the 'imminent' qualifier was a barrier in saving lives. Further, an
Australian Law Reform Commission recommendation and subsequent reforms to the
Privacy Act 1988 (Privacy Act) deemed it inappropriate for a threat to be considered
'serious' as well as 'imminent' given that any analysis of 'seriousness' must involve
consideration of the gravity of the potential outcome as well as the relative likelihood.
5. The Bill also limits the right to privacy by expanding the range of permissible
circumstances for the use and disclosure of information contained in the Integrated Public
Number Database in an emergency situation. This amendment is reasonable, necessary
and proportionate because it only allows access to unlisted numbers to emergency call
persons in an emergency situation. This has the potential to save lives, especially since
only 5% of the 72 million active numbers are listed (given that mobile numbers are
unlisted by default). This amendment is in line with a privacy law review conducted by the
ALRC which recommended this amendment, noting that 'most individuals would
reasonably expect the disclosure of an unlisted number in an emergency call situation.'
6. The Bill promotes the right to privacy by strengthening the protection of the law
against unlawful information disclosure request by increasing the reporting and oversight
obligations on carriers.
Conclusion
The Bill 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 and to the extent that it limits some rights, those limitations are reasonable,
necessary and proportionate in achieving a legitimate objective.
NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Telecommunications
Legislation Amendment (Information Disclosure, National Interest and Other Measures)
Act 2022.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out
in the table within the clause. Schedule 1, Part 1 of the Bill would commence the day after
the Act receives Royal Assent. Schedule 1, Part 2 would commence 6 months after the Act
receives Royal Assent.
3. Schedule 1, Part 3 Divisions 1 and 2 would commence after the commencement of
section 2 and item 81 respectively of the Telstra Corporation and Other Legislation
Amendment Act 2021 (Amendment Act). This has a beneficial effect of ensuring
Schedules 2 and 3 of the Amendment Act commence operation as intended.
4. Schedule 1, Part 3 Division 3 would commence the day after the Act receives
Royal Assent.
Clause 3 - Schedules
5. Clause 3 provides that legislation specified in a Schedule to the Bill is amended or
repealed as is set out in the applicable items in the relevant Schedule. Any other item in a
Schedule to the Bill has effect according to its terms. There is one Schedule to the Bill.
GENERAL OUTLINE
6. The Telecommunications Legislation Amendment (Information Disclosure,
National Interest and Other Measures) Bill 2022 (the Bill) will amend
the Telecommunications Act 1997 (the Act) to improve the operation of information
disclosure provisions. The Bill addresses a range of matters associated with information
disclosure and the national interest, including facilitating assistance provided by the
telecommunications industry to law enforcement agencies and emergency service
organisations. The Bill also makes two technical amendments to the Amendment Act to
ensure that Schedules 2 and 3 and a transitional item in that Act operate as intended.
Schedule 1--Amendments
Part 1--Information use and disclosure
Telecommunications Act 1997
Item 1 - Subsection 285(1) (at the end of the heading)
Item 2 - Subparagraph 285(1)(c)(ii)
Item 3 - Subparagraph 285(1)(c)(iii)
7. Item 3 repeals subparagraph 285(1)(c)(iii) of the Act which currently allows the
use by a person of information or a document contained in an integrated public number
database if the use is made for purposes connected with the dealing with the matter or
matters raised by a call to an emergency service number.
8. The Integrated Public Number Database (IPND) is a database of Australian
telephone numbers and customer details, currently managed by Telstra under clause 10 of
the Telecommunications (Carrier License Conditions - Telstra Corporation Limited)
Declaration 2019. Given the proposed addition of new section 285(1B), (Item 6 refers)
paragraph 285(1)(c)(iii) is no longer required.
9. Items 1 and 2 make consequential changes as a result of the amendment proposed
by Item 3.
Item 4 - Subsection 285(1A) (at the end of the heading)
Item 5 - Subparagraph 285(1A) (c)(iii)
10. Item 5 repeals subparagraph 285(1A) (c)(iii) of the Act which currently allows the
disclosure of information contained in an integrated public number database by a person of
information or a document if the use is made for purposes connected with the dealing with
the matter or matters raised by a call to an emergency service number. Similar to Item 3,
with the proposed addition of new section 285(1B), existing paragraph 285(1A)(c)(iii) is
no longer required.
11. Item 4 is a minor consequential change as a result of Item 5.
Item 6 - After subsection 285(1A)
12. This item will insert subsection 285(1B) into the Act to provide an exception to the
use and disclosure offences in section 276 and section 277 of the Act to authorise the use
and disclosure of information and documents relating to the carriage service supplied or
intended to be supplied or the personal affairs or particulars of a person (such as a person's
unlisted landline or mobile numbers and associated addresses) contained in an integrated
public number database, to emergency call persons through calls. In order for the
exception to apply, the use or disclosure of such information must be for purposes
connected with dealing with the matter or matters raised by a call to an emergency service
number and it is unreasonable to obtain the person's consent to the particular disclosure or
use.
13. Section 285 of the Act establishes some permissible circumstances for use and
disclosure of information contained in an integrated public number database. At present
Telstra is unable to disclose information associated with unlisted numbers through this
provision. Whilst other exceptions could be used (for example the exceptions provided
under section 289, section 290, or section 291 of the Act), the current situation is
needlessly complicated. Only 5% of 72 million active phone number are listed, with
mobile numbers unlisted by default, this provision can seemingly be a barrier in
responding to emergencies.
14. The ALRC recommended that section 285 of the Act be amended to permit such
disclosures, noting 'most individuals would reasonably expect the disclosure of an unlisted
number in an emergency call situation' (72-14, For your Information: Australian Privacy
Law and Practice, ALRC Report 108).
15. The proposed new subsection 285(1A) would therefore provide an exception
(under Australian Privacy Principle 6.2(b)) to the rule that information not be disclosed for
a secondary purpose to that for which it was collected. Noting the provision specifies the
types of information (which captures personal information) and the context in which it
may be disclosed and purpose for the use or disclosure, it is drafted within sufficiently
narrowly parameters to demonstrate it is reasonable, necessary and proportionate to the
intended policy objective of permitting the disclosure of an unlisted number in an
emergency call situation.
Item 7 - After paragraph 287(a)
16. Item 7 adds a new subparagraph (ab) to section 287 of the Act. Section 287
provides an exception to Division 2 of Part 13 of the Tel Act (dealing with primary
disclosure/use offences). Division 2 does not prohibit a disclosure or use by a person of
information or a document if two conditions are met: the information /document relates to
the affairs or personal particulars of another person; and the first person believes on
reasonable grounds that the disclosure or use is reasonably necessary to prevent or lessen a
serious and imminent threat to the life or health of a person. The addition of new
paragraph (ab) will mean that first person needs to be satisfied that it is unreasonable or
impracticable to obtain the other person's consent to the proposed disclosure or use. This
is consistent with the Office of the Australian Information Commissioner Australian
Privacy Principles Guidelines (C.5) which permits the disclosure of personal information
in the case of lessening or preventing a serious threat to life, health and safety if it is
unreasonable or impracticable to obtain consent.
Item 8 - Paragraph 287(b)
17. This item removes the "imminent" qualifier in paragraph 287(b) of the
Telecommunications Act that has limited the ability of law enforcement agencies to
request telecommunications companies' assistance in serious emergency situations.
18. Section 287 of the Act currently provides an exception to the disclosure or use
offences by permitting the disclosure or use of information or a document if the discloser
believes on reasonable grounds that it is "reasonably necessary to prevent or lessen a
serious and imminent threat to the life or health of a person", while section 300 of the Act
provides for an exception any secondary disclosure or use where such information satisfies
the same purpose. The intention of these provisions is to strike the appropriate balance
between protecting the confidentiality of personal communications and the public interest
in preventing threats to a person's safety and wellbeing.
19. The Parliament intends that regulated entities would largely be reliant on the
representations made by law enforcement or emergency service organisations to determine
whether a threat was 'serious'. This approach is consistent with the expecting operational
approach of law enforcement agencies, and recognises that law enforcement or emergency
service organisations will have access to information, systems and resources that
telecommunications companies will not.
Item 9 - Section 300
20. This item repeals and substitutes section 300 to allow for the disclosure or use of
information where it is unreasonable or impracticable to obtain consent and the disclosure
or use is for the purpose of preventing or lessening a serious threat to the life or health of a
person. This change is in alignment with the amendment proposed to section 287 (refer
item 8 above) and the same reasoning applies The responsibility for determining the
seriousness of a risk to life as outlined in section 300 largely rests with law enforcement or
emergency service organisations.
Item 10 - Paragraph 313(5)(a)
21. This item is a technical amendment to add a reference to subsection 313(4A) and
(4B) to paragraph 313(5)(a). It corrects a drafting error in the National Emergency
Declaration Act 2020.
22. The effect of this amendment is that the civil immunities on carriers, carriage
service providers and carriage service intermediaries will apply, as originally intended,
when providing help as is reasonably necessary for specific purposes in connection with
preparing for, responding to or recovering from an emergency (in accordance with their
duty under subsections 313(4A) or (4B) of the Act).
23. This proposed amendment reflects the intention that such entities should not be
liable to an action or other proceeding for damages for or in relation to an act done or
omitted in good faith in compliance with the statutory duty.
24. The amendment is consistent with similar provisions relating to the 'giving of help
as is reasonably necessary' in connection with safeguarding national security and
protecting public revenue in the Act, and corrects a drafting error in the National
Emergency Declaration Act 2020.
Item 11 - Application
25. The amendments to sections 285, 287 and 300 of the Act made by Part 1 apply in
relation to the use and disclosure of information by a person after the commencement of
this Part, regardless of when the information came to the person's knowledge or the
documents came into the person's possession.
26. The amendment of paragraph 313(5)(a) of the Act made by this Part applies in
relation to an act done or omitted by a person after the commencement of Part 1.
Part 2--Record of Disclosures
Telecommunications Act 1997
Item 12 - After paragraph 306(5)(c)
Item 13 - At the end of subsection 306(5)
Item 14 - After subsection 306(5)
27. Items 14-16 of Part 2, Schedule 1 will amend the record-keeping requirements in
subsection 306(5) of the Act to require more detailed records of information to be
recorded for authorised disclosures, consistent with a recommendation from the Office of
the Australian Information Commissioner in a submission to the Parliamentary Joint
Committee on Intelligence and Security Review of the Mandatory Data Retention Regime.
Specifically, Item 14 inserts new paragraphs 305(5)(ca) and (cb).
28. Under new paragraph 306(5)(ca) where the disclosure of protected information is
in accordance with a warrant and paragraph 280(1)(a) of the Act applies to the disclosure,
the provision(s) of the law under which the warrant was issued, the name of the person
who issues the warrant and the date of issuing will need to be recorded by the carrier,
provider or number-database operator.
29. Under new paragraph 305(5)(cb) where the disclosure of protected information is
authorised or required under a law and paragraph 280(1)(b) of the Act applies to the
disclosure, the provision of the law which required or authorised the disclosure will need
to be recorded by the carrier, provider or number-database operator. For example, in the
event that a notice to produce power was exercised in right of a carrier, it would be
expected that the carrier record the particulars of the notice to produce powers. For the
avoidance of doubt, section 280(1)(a) would not by itself allow use or disclosure, a
underlying law requiring or authorising disclosure is needed. It is particulars of the
underlying law that would need to be recorded under these amendments.
30. Item 15 inserts new paragraph 306(5)(g) which will require, where the information or
document includes information specified in a table that is:
a. specified in a determination made by the Minister, by legislative instrument
under new subsection 305(5A) (inserted by Item 16); or
b. if there is no determination, the table in subsection 187AA(1) of the
Telecommunications (Interception and Access) Act 1979.
Item 15 - Application
31. This item is an application provision which provides that the amendment made by
Part 2 of Schedule 1 to the Bill apply only to the disclosure of information or documents
after the commencement of the Part. However, the scope of information or document that
comes within the scope of the new record keeping provisions covers any information or
document that is in the personal possession or knowledge at the time of the proposed
disclosure.
Part 3--Other Measures
Division 1--Amendment of commencement provision
Telstra Corporation and Other Legislation Amendment Act 2021
32. The amendments contained in Division 2 of Schedule 1 to the Bill represent
technical amendments to ensure that provisions in Schedules 2 and 3 and a transitional
item in Schedule 1 in the Telstra Corporation and Other Legislation Amendment Act
2021 (Amending Act), will commence and operate as originally intended.
33. At the time of the passage of the Telstra Corporation and Other Legislation
Amendment Bill 2021, Telstra Corporation Limited had intended to apply for Scheme of
Arrangement orders under section 413 of the Corporations Act 2001 to the Federal Court
of Australia. However, subsequent to the passage of the Amending Act, Telstra
commenced the proceedings in the Supreme Court of New South Wales rather than the
Federal Court and informed Government recently that this was because the Supreme Court
was better able to accommodate listing dates. The order was issued by the Supreme Court
on 19 October 2022.
Item 16- Subsection 2(1) (table item 3)
34. This item will omit 'Federal Court of Australia' (wherever occurring) and
substitute with 'Supreme Court of New South Wales'. This amendment is necessary to
reflect the Corporation Limited court that made the Scheme of Arrangement order under
the Corporations Act 2001 relating to Telstra's restructure. The court order was a
condition of commencement for various parts of the Amendment Act, and needs to be
accurately reflected to ensure that the Act commences as intended.
Division 2--Amendment of transitional provision
Telstra Corporation and Other Legislation Amendment Act 2021
Item 17 -Item 2- Paragraph 81(d) of Schedule 1
35. This item will omit 'Federal Court' and substitute with 'Supreme Court of New
South Wales'. This amendment is necessary due to Telstra altering the court it applied to
for the required Scheme of Arrangement order under the Corporations Act 2001.
36. Items 1 and 2 provide technical amendments to ensure that provisions in Schedules
2 and 3 and a transitional item in Schedule 1 in the Amending Act will commence as
originally intended. At the time of the passage of the Bill, Telstra had intended to apply for
section 413 Scheme of Arrangement orders under the Corporation Acts 2001 to the
Federal Court of Australia. However, subsequent to the passage of the Amending Act,
Telstra commenced the proceedings in the Supreme Court of New South Wales rather than
the Federal Court because the Supreme Court was better able to accommodate listing
dates.
Division 3--Amendment of definition
Telecommunications Act 1997
Item 18 - Section 581ZB (definition of telecommunications transmission tower)
Item 19 - After section 581ZB
37. Item 18 will substitute and amend the definition of a telecommunications
transmission tower to ensure the towers and facilities access frameworks under Part 34A
of the Act do not inadvertently apply to a too broad category of entity. The new definition
of telecommunications transmission tower inserted by Item 18 provides that the term has
the meaning given by new section 581ZBA (inserted by Item 19).
38. New subsection 581ZBA(1) provides that the definition of telecommunications term
telecommunications transmission tower means a tower, pole, mast or similar structure
that satisfies certain conditions:
a. it must be used to supply a carriage service by means of radiocommunications;
and the carriage service is supplied by a carrier or carriage service provider;
b. it must be in a class specified in a determination under subsection 581ZBA(2);
and
c. it must not be covered by a determination under subsection 581ZBA(3).
The Minister may, by legislative instrument, make a determination declaring that a
specified tower, pole, mast or structure is not a telecommunications transmission tower for
the purposes of this Division.
39. The new definition of telecommunications transmission tower ensures that carriers
would not be able to avoid facilities access obligations by transferring assets such as
towers into subsidiaries.