The Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022 (Cth)
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.
1: Amendments relating to information use and disclosure
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.
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.
2: Amendments to the record of disclosure requirements
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.
3: Other Measures
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.
