1.1
On 24 November 2022, the Senate referred the provisions of the Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022 (the bill) to the Environment and Communications Legislation Committee (the committee) for inquiry and report by 1 March 2023.
Conduct of the inquiry
1.2
Details of the inquiry were advertised on the committee's website, including a call for submissions by 16 January 2023. The committee wrote directly to various stakeholders to invite them to make submissions.
1.3
The committee received 12 submissions, including supplementary material from the Department of Infrastructure, Transport, Regional Development, Communications and the Arts (DITRDCA) responding to matters raised in other submissions. Submissions are listed at Appendix 1 and are available in full on the committee's website. The committee agreed to conduct the inquiry on the written evidence.
Structure of the report
1.4
This report comprises two chapters. Chapter 1 provides an overview of the inquiry and the bill. Chapter 2 examines the issues raised in submissions and sets out the committee view.
Acknowledgements
1.5
The committee thanks the organisations that made submissions, especially in light of the short timeframe for this inquiry. The committee particularly acknowledges the assistance of DITRDCA officials in providing additional information about the bill.
Background to the bill
1.6
The Telecommunications Act 1997 (the Act) regulates the operation of the telecommunications sector in Australia. Under the Act, it is an offence punishable by up to two years' imprisonment to use or disclose telecommunications information except as permitted by the Act. Telecommunications information includes the time and duration of calls made and received, the proximity of a handset or device to mobile towers, and the name and address associated with a particular phone number.
1.7
The Act imposes a general prohibition on the use or disclosure of information, which is subject to various exceptions that set out the specific circumstances in which there may be a legitimate need to use or disclose otherwise confidential information.
Calls to emergency services
1.8
One such exception is created by section 285 of the Act, which provides that information recorded in the Integrated Public Number Database (IPND), a central register of all Australian phone numbers, may be used or disclosed in connection with a call to an emergency service number. For example, where a caller is in distress and cannot speak, emergency services operators may access the name and address associated with that phone number to assist with routing and dispatch.
1.9
Unlisted numbers, while part of the IPND, are excluded from section 285. In her second reading speech, the Minister for Communications, the Hon Michelle Rowland MP, explained the consequences of this:
…if the number calling triple 0 is unlisted, the IPND manager is prohibited from disclosing the associated names and addresses to emergency call persons even when that information is necessary to provide someone with life-saving emergency services.
1.10
Of the 72 million active phone numbers in the IPND, an estimated 95 per cent are unlisted, largely because mobile phone numbers are unlisted by default.
Serious and imminent threats to life or health
1.11
Sections 287 and 300 of the Act enable the use and disclosure of information where doing so is reasonably necessary to prevent or lessen a serious and imminent threat to the life or health of another person. While there are a number of ways for law enforcement and emergency services to access telecommunications information, these sections are typically used in urgent and high-risk situations. In particular, these sections can be used to estimate the approximate location of a device based on information about its distance from one or more mobile towers, a process known as triangulation.
1.12
Disclosure under these sections is not automatic. Law enforcement or emergency services must submit a request to the telecommunications provider (or other information holder), which may only disclose information where it agrees the requirements are met.
Australian Law Reform Commission recommendations
1.13
In its 2008 review of Australian privacy law, the Australian Law Reform Commission (ALRC) suggested a number of changes to the Act. The ALRC's recommendations included:
amendment of section 285 to extend disclosure of information in connection with calls to emergency services to include unlisted numbers; and
amendment of sections 287 and 300 to remove the requirement that a threat be 'imminent'.
Inquest into the death of Thomas Hunt
1.14
In September 2020, the New South Wales (NSW) Coroner found that uncertainty around the scope and application of section 287 had hampered the initial police response to Mr Thomas Hunt's disappearance. Despite concerns for Mr Hunt's mental health and welfare, officers did not request information about the location of his phone as it was not clear that the threshold for a 'serious and imminent' threat had been met. While acknowledging that Commonwealth legislation was outside her jurisdiction, the Coroner suggested an amendment to section 287 would be 'highly desirable'.
Inquest into the disappearance of CD
1.15
In September 2022, the NSW Deputy Coroner found that the requirements of section 287 had prevented police from accessing potentially important information about CD's possible location. Evidence to the inquest from Chief Inspector Gary Charlesworth made clear that, as in Mr Hunt's case, the wording of section 287 was an impediment to disclosure in a time-critical investigation. The Deputy Coroner recommended that the Commonwealth consider 'urgent reform' of this aspect of the Act.
1.16
Following the inquest, the Deputy Coroner corresponded with the Minister for Communications to draw the Minister's attention to her findings, including the evidence of Chief Inspector Charlesworth, as well as the previous inquest in relation to Mr Hunt.
Purpose and provisions of the bill
1.17
In her second reading speech, the Minister for Communications told the House of Representatives the bill 'first and foremost responds directly to [the NSW Coroner and Deputy Coroner's] recommendations to better protect the safety and wellbeing of Australians in danger'.
extend the existing IPND authorisation to include unlisted numbers;
remove the requirement that a threat to a person's life or health be 'imminent', and introduce a new requirement where it is 'unreasonable or impracticable' to obtain the person's consent to the disclosure; and
expand record-keeping requirements in relation to authorised disclosures. This amendment was added to the bill following consultation with the Office of the Australian Information Commissioner.
1.19
The bill is also a vehicle for technical amendments that would clarify the intended operation of the National Emergency Declaration (Consequential Amendments) Act 2020 (NED Act) and the Telstra Corporation and Other Legislation Amendment Act 2021. The amendment in respect of the NED Act would have the effect of conferring civil immunity on telecommunications companies, which is discussed further in Chapter 2.
1.20
DITRDCA advised the committee that the bill is:
…deliberately limited in nature and scope. Almost all of the Bill's measures are of a minor nature, and were included because of the unanimous benefit identified by government agencies, regulatory bodies, or industry. The proposed amendments relate to existing provisions in the Act - either to reduce regulatory burden, to clarify industry obligations, or to remove obligations which are duplicative in nature.
Human rights and financial implications of the bill
1.21
The Explanatory Memorandum (EM) to the bill acknowledges that proposed amendments to expand access to personal telecommunications information would impose limitations on the right to privacy, but argues that these limitations are justified and proportionate. The EM also suggests that the proposed amendment to expand record-keeping requirements would promote the right to privacy by increasing oversight and monitoring of disclosures.
1.22
The human rights implications of the bill are discussed further at paragraphs 1.24 to 1.26 and in Chapter 2.
1.23
The EM notes that the bill would have no financial impacts.
Consideration by other parliamentary committees
Parliamentary Joint Committee on Human Rights
1.24
The Parliamentary Joint Committee on Human Rights (PJCHR) examined the bill and was of the view that it engages the right to privacy in greater depth than is acknowledged in the EM, and also engages the right to an effective remedy. The PJCHR recommended the EM be updated to address these points.
1.25
The PJCHR requested further information about the bill's compatibility with these rights, including the operation of proposed amendments and any safeguards or limitations on their use. The Minister provided this information and undertook to revise the EM.
1.26
Based on the Minister's advice, the PJCHR concluded that there are sufficient safeguards on the disclosure of personal information to ensure the limitation on the right to privacy is likely to be proportionate to the objectives of the bill. The PJCHR made two suggestions to improve and clarify this proportionality. The PJCHR determined that the bill was otherwise compatible with human rights.
Senate Standing Committee for the Scrutiny of Bills
1.27
The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) also examined the bill. The Scrutiny Committee raised concerns about the appropriateness of conferring civil immunity on telecommunications companies, and sought detailed advice on the scope, process and safeguards of disclosures under the proposed amendments. The Minister provided this advice and undertook to revise the EM.
1.28
In response to the Minister's confirmation that disclosures under the proposed amendments would be subject to certain practical limitations, the Scrutiny Committee requested further advice on whether the bill, or at a minimum the explanatory materials, could be updated to clarify these limitations. At the time of this report, a further response from the Minister had not been published.
Note on the Explanatory Memorandum
1.29
The EM to the bill suggests the Inquest into the disappearance of CD is not public. Noting that this is not the case, and to address the matters raised by the PJCHR and Scrutiny Committee, a replacement EM will be provided.
1.30
At the time of this report, the replacement EM had not been tabled. All references in this report are to the original EM.