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2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(INFORMATION DISCLOSURE, NATIONAL INTEREST AND
OTHER MEASURES) BILL 2022
REPLACEMENT 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 address a range of
matters associated with information disclosure and the national interest, including
facilitating potentially life-saving assistance provided by the telecommunications industry
to law enforcement agencies and emergency service organisations. The Bill also amends
record-keeping requirements in the Act to better enable oversight of the types of
information provided in a disclosure, as well as the underlying laws or warrants which
required or authorised a disclosure.
2. In addition, the Bill makes 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, and national interest
3. Under Part 13 of the Act, carriers, carriage service providers, number-database
operators, emergency call persons, and their respective associates must protect the
confidentiality of information that relates to:
• the contents of communications carried by carriers or carriage service providers;
• carriage services supplied by carriers and carriage service providers; and
• the affairs or personal particulars of other persons.
Division 2 prohibits the primary use and disclosure of such information, and contravention
is an offence punishable on conviction by 2 years' imprisonment. For avoidance of doubt,
the prohibition extends to the content or substance of the communication, including the
content of voice calls, text messages, or voicemail, as well as any other information or
document that relates to the communication, such as call logs. It also extends to any
information that relates to a person's affairs or personal particulars, including numbers or
addresses which are not publicly listed, or location information.
4. Given there are contexts which require a use or disclosure in the public interest,
Division 3, Part 13 sets out a number of exceptions to this general prohibition, where a
primary use or disclosure of certain information is authorised in limited circumstances.
Division 4 sets out that any secondary use or disclosure of information received under
these exceptions must be for the authorised purpose, contravention of which is an offence
punishable on conviction by 2 years imprisonment.
5. Part 14 of the Act establishes telecommunications industry assistance obligations
in relation to national interest matters. Under section 313, industry must provide help to
the Commonwealth, States or Territories as it is reasonably necessary for a set of
prescribed purposes, on a no profit, no loss basis. Carriers and carriage service providers
are not liable for any action or proceeding in relation to an act done in good faith in
accordance with these national interest obligations.
6. 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. Authorise the use and disclosure of unlisted numbers and associated addresses
contained in an integrated public number database (IPND) for purposes dealing
with matters raised by a call to an emergency service number;
i. The IPND, which is managed by Telstra under clause 10 of its carrier
license conditions, contains a record of each telephone number issued
by carriage service providers to their customers in Australia, including
the customer's number, name, and residential address. Providers are
required to supply Telstra with this information to populate the IPND.
ii. The IPND is used to assist for a range of critical purposes, such as
delivering Emergency Alerts during and before disasters (e.g. bushfires
and floods), and to provide information to the Triple Zero emergency
call service to help locate callers in distress that cannot speak.
iii. This amendment clarifies that the disclosure of unlisted information
from the IPND to the operator of an emergency service number is
permitted for the purpose of routing calls to the requested emergency
service, where it is unreasonable or impracticable to obtain the person's
consent to do so.
b. Permit the use and disclosure of information for purposes connected to
preventing or lessening 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 the Inquest into
the disappearance of CD (findings dated 16 September 2022), it was
found that the provision should be amended to provide greater clarity in
its application in order to help prevent such deaths in future.
ii. In her 2022 findings, Magistrate Erin Kennedy recommended urgent
consideration of reform to section 287 of the Act, including removal of
the 'imminent' threat qualifier in the provision, as well as lowering the
threshold requirement of 'reasonable belief' to 'reasonable suspicion'.
iii. The Australian Law Reform Commission previously recommended a
similar change to use and disclosure principles in the Privacy Act 1988
so that an exception applies if the threat is serious but not necessarily
imminent, and extended the recommendation to section 287 of the Act
in light of the public interest purposes for doing so (ALRC Report 108).
iv. While amendments to the Privacy Act 1988 were introduced through
the Privacy Amendment (Enhancing Privacy Protection) Act 2012 to
address the recommendation, a similar amendment to the Act has not
yet been introduced. The proposed amendment to sections 287 and 300
introduces the requirement that it be 'unreasonable or impracticable to
obtain the person's consent', to align with the safeguard introduced to
address concerns with the amendment to the Privacy Act.
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. The National Emergency Declaration (Consequential Amendments) Act
2020 introduced a duty on telcos to provide reasonably necessary help
in response to a national emergency under section 313 of the Act.
ii. The policy intention was set out in the Explanatory Memorandum to the
National Emergency Declaration (Consequential Amendments) Bill
2020 that immunities would extend to subsections 313(4A) and (4B).
Due to an error, the measures were not introduced, and section 313(5)
was not amended to give effect to the then Parliament's intention.
Part 2: Amendments to the record of disclosure requirements
7. Part 2 introduces amendments to record-keeping requirements to improve
oversight. 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 the type of information disclosed, as
well as information relating to underlying laws or warrants which compelled
the disclosure (if applicable).
i. This amendment was informed by a recommendation from the Office of
the Australian Information Commissioner, noting the lack of detailed
information in the record of disclosure limits their oversight capability.
ii. For the avoidance of doubt, this amendment introduces a requirement to
keep a record of the type of information which was disclosed, e.g.
'subscriber address'; 'billing information; 'call logs from x date' to
assist in the OAIC's assessment of proportionality. It will not require
providers to record the actual information disclosed, or otherwise retain
any personally identifiable information in the record of disclosure.
Part 3: Other Measures
8. Part 3 introduces technical amendments to the Telstra Corporation and Other
Legislation Amendment Act 2021 (the Amending Act) to ensure the Act commences as
originally intended. Division 1 commences immediately after the commencement of
section 2 of the Amending Act. Division 2 commences immediately after commencement
of item 81 of Schedule 1 of the Amending Act and Division 3 will commence will
commence immediately after the Bill receives Royal Assent. These measures will:
a. clarify that the obligations and measures in the Act commenced as intended.
i. Telstra had intended to apply for Scheme of Arrangement Orders under
section 413 of the Corporations Act 2001 to the Federal Court of
Australia. The Order was a condition for commencement of various
parts of the Amending Act. As Telstra commenced proceedings in the
Supreme Court of New South Wales, this amendment substitutes the
Court's title as appropriate in the commencement schedule.
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
9. There are no financial impacts arising from this Bill.
CONSULTATION
10. 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 International Covenant on Civil and Political Rights
IPND Integrated Public Number Database
OAIC Office of the Australian Information Commissioner
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 measures to amend the Telecommunications Act 1997 (the Act)
that improve the operation of information disclosure provisions and better facilitate
assistance from the telecommunications industry to police and emergency services.
Human rights implications
3. The Bill engages the following rights from
a) the right to life in Article 6 of the International Covenant on Civil and
Political Rights (ICCPR),
b) the right to privacy in Article 17 of the ICCPR, and
c) the right to an effective remedy in Article 2(3) of the ICCPR.
Information Use and Disclosure
Right to life
4. The right to life in Article 6 of the ICCPR places a positive obligation on
governments to take appropriate measures to protect the right to life of those within its
jurisdiction, including an obligation to take adequate preventative measures in order to
protect persons from reasonably foreseen threats.
5. A key objective of the Bill is to promote the right to life. The amendments to
sections 287 and 300 promote the right to life by improving the ability of police to find
missing people. As set out in the findings from the Inquest into the disappearance of CD,
the 'imminent' qualifier within these provisions has restricted disclosures in circumstances
where a triangulation request may have helped locate the individual in question. The
proposed amendments are necessary to protect the right to life of future missing persons.
Right to protection against arbitrary or unlawful interference with privacy
6. The Bill limits the right to privacy by amending the disclosure exceptions in
sections 287 and 300 of the Act such that it is not an offence for a carrier or carriage
service provider to disclose certain information if the entity believes on reasonable
grounds that disclosure is reasonably necessary to prevent a serious threat to life or health.
7. The Bill enhances the right to privacy through the introduction of a consent-based
safeguard that protects against arbitrary interferences with privacy, as the disclosure
exceptions under sections 287 and 300 of the Act no longer apply unless the disclosing
entity is satisfied that it would be unreasonable or impracticable to obtain the consent of
the person to which the information disclosed relates to. In doing so, the proposed
measures in the Bill ensure that any use or disclosure of information received under these
exceptions must be for the authorised purpose, contravention of which is an offence
punishable on conviction by 2 years imprisonment.
8. This strikes an appropriate balance between protecting a person's right to privacy
and the prevention of threats to their person's life or health. Given the severity of penalties
for unauthorised disclosures and that the provisions do not compel disclosure, access to
this information is in practice limited to law enforcement and emergency services and not
available to members of the general public or relatives of the missing person.
9. The appropriateness of this change arises from a number of cases. The recent
coronial inquest concluded that the 'imminent' qualifier was a barrier in saving lives in the
context of missing persons cases. Australian Law Reform Commission Report 108 also
recommended the removal of the 'imminent' qualifier from the provisions given that any
analysis of 'seriousness' must involve consideration of the gravity of the potential
outcome as well as the relative likelihood. The measure is consistent with previous
reforms to the Privacy Act and the amendments pursue a legitimate objective which are
rationally connected to the existing right to privacy framework.
10. The necessity arises from the legislative barrier of the term 'imminent.' In findings
for the Inquest into the Disappearance of CD, paragraph 107-137 provide justification
about ongoing challenges experienced with the interpretation of the provision, and the
need for legislative reform. While guidance material was prepared, it became clear that the
'imminence' qualifier in section 287 of the Act presents a legislative barrier in missing
persons investigations that is difficult to overcome with guidance or training alone. In the
Inquest into the Disappearance of CD, Chief Inspector Charlesworth of NSW Police -
who refused the request to triangulate CD's mobile phone because there was insufficient
evidence to establish an imminent threat - confirmed he would make the same decision
today with the benefit of hindsight due to the lack of imminence.
11. Section 287 is designed to enable quick and lawful disclosures of information
where there is a serious threat to the life or health of an individual. For the proposed
exception in section 287 of the Act to apply, the carrier or carriage service provider must
believe on reasonable grounds that the disclosure is reasonably necessary to prevent or
lessen a serious threat to the life or health of a person. The OAIC's Australian Privacy
Principle Guidelines on the equivalent use/disclosure principle in the Privacy Act 1988
provides helpful interpretative guidance on the scope and meaning of the terms above in
relation to the circumstances where a use or disclosure is likely to be permitted.
12. In her 2022 findings, Magistrate Erin Kennedy also recommended lowering the
threshold requirement of 'reasonable belief' to 'reasonable suspicion'. However, such a
change would create a lower standard than the equivalent 'Permitted general situations'
table in section 16A of the Privacy Act 1988. To maintain the proportionality of the
limitation to privacy and prevent unwanted disclosures, 'reasonable belief' is maintained.
13. This amendment is further necessary as the provision of guidance and training is
not sufficient to achieve the same objective. Even with additional guidance or training, the
'imminent' threat threshold does not provide additional safeguards in the Act, and the
delay in making out 'imminence' has been prohibitive in saving lives.
14. The amendments to sections 287 and 300 are also a proportionate limitation of
privacy. The exception in section 287 of the Act does not allow for the content or
substance of a communication to be made available in any circumstance. The proposed
measure in the Bill will not change or increase the type of information which can be
requested and disclosed through the operation of the provision.
15. The exception only applies to information relating to the 'affairs or personal
particulars of a person', a meaning which includes location information as clarified by
section 275A of the Act. Carriers do not typically have access to GPS information, and
triangulations do not use GPS technology. Instead, a triangulation provides an
approximate area of where a handset might be located, based on the location of one or
more nearby cell towers. While there can be an enormous variance in the accuracy of this
information, triangulations remain a useful tool in missing persons investigations, assisting
in locating high-risk missing persons in about 20% of occasions in NSW.
16. The management of such data is received and managed according to well-
established protocols, and also subject to a range of safeguards of which only one is the
Act (which, for example, prohibits disclosure except in specified circumstances, and for
which the penalty is two years imprisonment). These procedures and protocols are not
public, to avoid disclosure of operational police practices. These protocols and practices
are also subject to a range of oversight mechanisms, including at the federal level by a
number of oversight bodies, such as the National Anti-Corruption Commission.
17. The amendment to section 300 is necessary to permit secondary disclosures (such
as from one emergency service to another) in potentially life-threatening circumstances for
purposes explicitly related to the original request. 'Failure to relate directly to the original
request' is a disclosure offence punishable on conviction by 2 years imprisonment. The
secondary disclosure exception in section 300 of the Act can only be relied upon where
doing so was for the purposes of preventing a serious threat, or if the disclosing entity
believes on reasonable grounds that the disclosure is reasonably necessary to prevent or
lessen a serious threat to life or health and it is unreasonable or impracticable to obtain the
individual's consent. For example, if a carrier were to rely upon section 287 to disclose
triangulation information to the NSW Police about a missing person, and the triangulation
data showed that the approximate location of the missing person's phone was somewhere
in Queensland, NSW Police would be able to rely on section 300 to disclose that
triangulation data to Queensland Police, if NSW Police believes on reasonable grounds
that doing so was reasonably necessary to prevent a serious threat to the person's life.
18. In practice, secondary disclosures will be further limited through the proposed
amendment as the section 300 exception will now require that it is unreasonable or
impracticable to obtain the person's consent before the secondary disclosure exception can
apply. This ensures that further disclosure of the information requires consideration of
whether the person's consent was able to be sought at that specific point in time.
19. The Bill also enhances privacy by introducing the same consent-based safeguard to
disclosures of IPND information in emergency situations. To a minor extent, it
proportionately limits the right to privacy by expanding the range of permissible
circumstances for the use and disclosure of information contained in the IPND 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).
20. This amendment is reasonable, necessary and proportionate being limited to only
allow access to unlisted numbers to emergency call persons in an emergency situation.
Disclosure of unlisted information through the proposed measure are limited in practice to
dispatching services (such as an ambulance) and routing calls to either Triple Zero or the
Australian 106 Text Emergency Relay Service for people who have a hearing or speech
impairment. In law, they are strictly limited to matters raised by a call to an emergency
service number.
21. The proposed amendment to section 285 of the Act is rationally connected to its
focus of promoting clarity in the legislative framework around the disclosure of unlisted
number information by confirming it is permissible for the IPND Manager to disclose
information related to unlisted numbers.
22. The amendments to section 285 are necessary as other exceptions either do not
apply to the IPND Manager or do not include unlisted information. For example, the
exception in section 286 only applies to information that is known or comes into a
person's possession because of a call to an emergency service number. It allows the
Emergency Call Person (ECP) to disclose information to the appropriate emergency
service organisation. It does not extend to the IPND Manager (i.e. information in the IPND
does not come into possession of the IPND Manager as a result of an emergency call). The
section 285 exception, and the proposed amendment, apply in a different circumstance and
are also narrower. The change will apply only to the IPND Manager, only to information
contained in the IPND, and only for purposes of dealing with a matter raised by a call to
an emergency service number. The proposed amendment merely clarifies disclosure in
relation to unlisted information from the IPND Manager to the ECP (for example, to allow
the dispatch of an ambulance because the person on the call using an unlisted number is
asphyxiating) is lawful.
23. The limitations to privacy imposed by this amendment are minor and
proportionately safeguarded by existing measures. Access to information in the IPND -
including storage, transfer, use, or disclosure of unlisted information - is strictly regulated
through the Act, a number of legislative instruments, and enforceable industry standards.
a. The amendment builds upon the existing safeguards in Part 13 of the Act by
introducing a requirement to the exception that it must be unreasonable or
impracticable to seek the consent of the person to whom the disclosure relates.
b. The use and disclosure of this data is restricted only to those necessary in
providing an emergency service response. Through the interaction between
several legislative and regulatory instruments which regulate access to
information in the IPND and/or the provision of emergency call services,
information disclosure through the measure is restricted to police, fire and
ambulance services:
a) Under Part 6 of the Act, bodies and associations that represent sections
of the telecommunications industry may develop industry codes which
in turn can be registered with ACMA. ACMA is further empowered by
Part 6 to enforce industry compliance with registered codes or to make
a standard where the existing codes are insufficient. Compliance with
industry standards are mandatory and non-compliance is prosecuted as
a civil penalty under Part 31 of the Act.
b) The regulatory IPND industry code (Integrated Public Number
Database C555:2020) and data access agreements between Telstra and
law enforcement enforce strict measures on access to IPND
information. For example, Data Users and Data Providers Technical
Requirements for IPND outlines technical requirements of the IPND,
including for file formatting and storage, data security, and reporting.
These technical implementations limit the ability for IPND disclosures
to occur for purposes or to entities separate to the ECP.
c) Telstra, as the IPND Manager and the Emergency Call Person (ECP),
has publicly available procedures in place to ensure that information
disclosed between the IPND Manager and the ECP is handled
appropriately. For example, Part 8 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999 set out
obligations relating to the provision of emergency call services,
including call information, such as section 147(4) which empowers
ACMA to impose determinations relating to the protection of the
privacy of information transmitted to an ECP. The Telecommunications
(Emergency Call Service) Determination 2019 requires that an ECP
must have a written arrangement with the IPND Manager ensuring that
the required information is available to the ECP as soon as practicable.
Consequently, the IPND is subject to rigorous ACMA oversight in the
practice of disclosing information to an ECP, and enforcement action
can be taken if breaches of the legislation occur.
c. Beyond this, the general safeguards that apply across Part 13 of the Act remain
in place. For example, Division 2 of the Act sets out that use or disclosure of
information received under these exceptions must be for the authorised
purpose, contravention of which is an offence punishable on conviction by 2
years imprisonment, for example.
24. This amendment is also 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.'
National Interest Obligations
Right to an effective remedy
25. The Bill engages the right to an effective remedy under Article 2(3) of the ICCPR,
however, to the extent that it does limit the right, the limitation is reasonable, necessary
and proportionate to the objective.
26. Article 2(3) of the ICCPR protects the right to an effective remedy for any
violation of rights or freedoms recognised by the ICCPR, including the right to have such
a remedy determined by the competent judicial, administrative or legislative authorities, or
by any other competent authority provided for by the legal system of the State. The right
to an effective remedy applies notwithstanding that a violation has been committed by
persons acting in an official capacity.
27. Under the National Emergency Declaration (Consequential Amendments) Act
2020, subsections 313(4A) and (4B) were inserted into the Act. These subsections
introduce a duty on telecommunications providers to provide reasonably necessary help
during certain emergencies.
28. Section 313(5) of the Act provides that a carrier or carriage service provider is not
liable to an action or other proceeding for damages if an act is done or omitted in good
faith under subsections 313(1), (1A), (2), (2A), (3) or (4) of the Act. However, it does not
include subsection 313(4A) and (4B). The amendment in the Bill is consistent with similar
provisions relating to safeguarding national security and public revenue in the Act, and
corrects an error in the National Emergency Declaration (Consequential Amendments)
Bill 2020.
29. It was intended that carriers or carriage service providers would 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 fulfilment of that duty. This intention was set out in the Explanatory
Memorandum to the National Emergency Declaration (Consequential Amendments) Bill
2020 that immunities would extend to the duties under subsections 313(4A) and (4B). Due
to an error in drafting, the measures were not included in the Bill, and unfortunately
section 313(5) was not amended to give effect to the then Parliament's intention.
30. The proposed extension of the existing civil immunity serves the legitimate
objective of ensuring that an officer, employee or agent acting on behalf of a carrier or
carriage service provider are able to provide the reasonably necessary help before, during
and after disasters and national emergencies, fulfilling their statutory duty in good faith
and in the national interest. Although this includes a broad range of individuals, the
situation the provision applies in is sufficiently narrow and necessary to have a
proportionate effect on the right to an effective remedy.
31. The immunities are rationally connected to that important objective by managing
the risk that carriers or carriage service providers would limit their conduct and in turn, the
level of assistance given to the requesting government body to minimise any real or
perceived risk of incurring personal civil liability.
32. The immunity is proportionate to achieving this important objective, it is not
arbitrary, unfair or based on irrational considerations and is limited to circumstances
where a telecommunications company is assisting in good faith in specified situations (as
noted above) and is only related to actions or other proceedings for damages (e.g. a cause
of action in tort or negligence).
33. Alternative remedies are available to persons where performance of the duty
results in a violation of their human rights. In cases where the performance of the duty was
done in good faith, an affected person could still seek an effective remedy for loss or
damage suffered in the purported exercise of the assistance against the Commonwealth or
relevant State/Territory body or government official initiating the request for assistance.
34. In giving (requested) help in accordance with subsections 313(4A) and (4B),
carriers and carriage service providers must still comply with all applicable laws,
including the Privacy Act 1988 and the Act itself. For example, Part 13 of the Act sets out
strict rules for carriers, carriage service providers and others in their use and disclosure of
personal information. A request for help in accordance with subsections 313(4A) and (4B)
that included the provision of information would in and of itself not provide the legal basis
for a carrier to disclose personal information of an individual (that is to say - an exception
to the prohibition in Part 13 would still need to be found).
35. Private citizens may also seek recourse through other avenues where, in giving
help, a carrier or carriage service provider has allegedly interfered unlawfully with an
individual's right to privacy. For example, a complaint could be made to the Australian
Communications and Media Authority (ACMA) if there was a concern that a carrier or
carriage service provider had breached Part 13 of the Act or concerns about how the duties
under subsections 313(4A) and (4B) were carried out. The ACMA could take enforcement
action against the carrier or provider, including court injunctive relief. Similarly, a
complaint could be made by the individual directly to the Office of the Australian
Information Commissioner (OAIC) for investigation (noting that privacy breaches will
attract fines, etc).
Record of Disclosures
Right to protection against arbitrary or unlawful interference with privacy
36. The Bill promotes the right to privacy by strengthening the protection of the law
against unlawful information disclosure requests by increasing the reporting and oversight
obligations on carriers.
37. The OAIC was consulted on an exposure draft of the proposed measures and
requested an additional amendment to include a description of the type of content
disclosed. A revision to Clause 13 of the Bill was made to include a requirement to this
effect. This measure introduces a requirement to keep a record of the type of information
which was disclosed by reference to the table in subsection 187AA(1) of the
Telecommunications (Interception and Access) Act 1979 - e.g. 'subscriber address';
'billing information; 'call charge record from x date' - to assist in the OAIC's assessment
of proportionality.
38. This will not require providers to record the actual information disclosed, or
otherwise retain any personally identifiable information in the record of disclosure, and it
should be noted that telecommunication providers subject to the Privacy Act 1988 will
continue to have obligations requiring that reasonable steps must be taken to protect
personal information held under Australian Privacy Principle 11. As such it does not limit
the right to privacy.
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. 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, as the IPND manager, 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. Given only 5% of 72 million active phone number are
listed, with mobile numbers unlisted by default, this provision is seemingly 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 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 or 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 the new
paragraph (ab) will mean that the 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.
17. The exception only applies to information relating to the 'affairs or personal
particulars of a person', a meaning which includes names, unlisted telephone numbers,
residential addresses, Internet Protocol (IP addresses), and other kinds of subscriber
information. Section 275A of the Act also clarifies that information about the location of a
mobile communications device (like a handset) is taken to be information that relates to
the affairs of the customer responsible for the device.
18. The exception in section 287 of the Act, and the proposed amendment, does not
allow for the content or substance of a communication to be made available in any
circumstance, given the legislative exception does not apply to this information. The
proposed measure in the Bill will not change or increase the type of information which can
be requested and disclosed through the provision.
19. Noting that restrictions on the term 'affairs or personal particulars' would reduce
the scope of information to which a disclosure offence applies under Division 2, Part 13 of
the Act, a general construction provides additional flexibility to safeguard and protect
types of information that might otherwise not be captured (similar to the general
construction of the term 'personal information' under the Privacy Act 1988).
20. The OAIC's Australian Privacy Principle Guidelines on the equivalent
use/disclosure principle in the Privacy Act 1988 also provides helpful interpretative
guidance on the scope and meaning of terms in relation to the circumstances where a use
or disclosure exception threshold is likely to be satisfied.
Item 8 - Paragraph 287(b)
21. 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.
22. 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 an exception for any secondary disclosure or use where such information satisfies
the same purpose.
23. The Parliament intends that regulated entities would in practice be reliant on the
representations made by law enforcement or emergency service organisations to determine
whether a threat was 'serious'. Accordingly, a claim made by a member of the general
public, without support or confirmation from emergency service organisations or law
enforcement agencies, would not meet the threshold for the exception to apply.
24. This approach is consistent with the existing operational approach of
telecommunications companies, and recognises that only law enforcement or emergency
service organisations will have access to the appropriate information, systems and
resources to assess the seriousness of risk that telecommunications companies do not.
Item 9 - Section 300
25. 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.
26. Any secondary disclosure or use of information by police or emergency service
organisations must relate back to the purpose of the original request, and will now
similarly require that it is unreasonable or impracticable to obtain the person's consent
before the secondary disclosure exception can apply. This ensures that any further
disclosure of information always requires consideration of whether a person's consent was
able to be sought at that specific point in time. Failure to do so is an offence punishable on
conviction by 2 years imprisonment.
Item 10 - Paragraph 313(5)(a)
27. 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 (Consequential Amendments) Act 2020.
28. 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).
29. 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.
30. 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 (Consequential Amendments) Act 2020.
Item 11 - Application
31. 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.
32. 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)
33. 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 306(5)(ca) and (cb).
34. 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.
35. Under new paragraph 306(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 records 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, an
underlying law requiring or authorising disclosure is needed. It is particulars of the
underlying law that would need to be recorded under these amendments.
36. Item 14 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 306(5A) (inserted by Item 14); or
b. if there is no determination, the table in subsection 187AA(1) of the
Telecommunications (Interception and Access) Act 1979 applies.
Item 15 - Application
37. 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
38. 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.
39. 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 the 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)
40. 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
41. 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.
42. 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
43. Item 18 will substitute and amend the definition of a telecommunications
transmission tower to ensure the towers and facilities access frameworks under Part 34B
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).
44. 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.
45. 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.
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