Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 26 (8 February 2023)

• Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022
• Privacy138

---

Telecommunications Legislation Amendment (Information Disclosure, National Interest and Other Measures) Bill 2022

Purpose	This bill seeks to amend the Telecommunications Act 1997 to improve the operation of information disclosure provisions. The bill seeks to amend 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 seeks to make two technical amendments to the Telstra Corporation and Other Legislation Amendment Act 2021 to ensure that the obligations and measures in the Act will commence as originally intended.
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	House of Representatives on 10 November 2022
Bill status	Before the Senate

Privacy^[138]

2.138 Under Part 13 of the Telecommunications Act 1997 (Telecommunications Act), carriers, carriage service providers and others are prohibited from disclosing certain information, including personal information, except in limited circumstances.^[139] This includes where the use and disclosure of information is:

• made to deal with calls to emergency service numbers;^[140] or

• reasonably necessary to prevent or reduce a serious and imminent threat to the life or health of a person.^[141]

2.139 The bill would expand these exceptions. As a result, the committee considers that the bill has the potential to trespass on an individual's right to privacy.

2.140 In Scrutiny Digest 8 of 2022 the committee requested the minister's advice as to the safeguards in place to protect information that may be used or disclosed under proposed subsection 285(1B) and proposed sections 287 and 300, including:

• to whom information may be disclosed;

• what kinds of information may be disclosed;

• the process by which information may be requested and disclosed; and

• what safeguards would operate in respect of information disclosed under these provisions and why the minister considers that these safeguards are sufficient.^[142]

Minister's response^[143]

2.141 The minister advised that the bill seeks to balance the right to privacy with the need to assist emergency services in finding and protecting people. In relation to proposed subsection 285(1B), the minister advised that information may be disclosed about unlisted numbers to an Emergency Call Person (ECP). The kinds of information that may be disclosed is limited to matters raised by a call to an emergency service number, including the name and service address associated with the number calling the emergency service, as contained in the Integrated Public Number Database (IPND).

2.142 The minister provided further information on the process by which information may be requested and disclosed. The minister clarified that when a caller dials an emergency service number the call is transferred to the requested emergency service, and that the customer name and residential address of the caller is automatically transmitted from the IPND and displayed on the control screen of the emergency service operator handing the call. The operator will attempt to confirm with the caller the location, but where this is not possible, assistance is dispatched to the address associated with the phone number of the caller as listed on the IPND. This amendment provides that disclosure about unlisted numbers from the IPND Manager (Telstra) to the ECP will be lawful.

2.143 The minister advised that the safeguards that exist in respect to information disclosed under these provisions include: a requirement that it must be unreasonable or impracticable to seek the consent of the person to whom the disclosure relates; the use and disclosure of data is restricted only to those necessary in providing an emergency service response; the 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; and there are publicly available procedures in place to ensure that information disclosed between the IPND Manager (Telstra) and the ECP is handled appropriately, as well as obligations on IPND access seekers which are specified in an enforceable industry code and data access agreements with Telstra. The minister further advised that the explanatory memorandum will be updated to outline the process by which disclosures would occur under proposed subsection 285(1B) and the safeguards which are in place.

2.144 In relation to sections 287 and 300, the minister advised that in practice, the provisions generally only apply when a carrier or service provider is contacted by the police. The kinds of information that may be disclosed relate to the 'affairs or personal particulars of a person', for example location information as outlined in section 275A of the Telecommunications Act, but do not include the content of a communication.

2.145 In relation to the process by which information may be requested and disclosed, information may be requested by anyone, but a formal request from law enforcement agencies to providers is required in relation to missing persons. Further, internal procedural requirements apply for law enforcement agencies to help establish that the thresholds for reasonable belief and reasonably necessary in proposed section 300 are met. If a member of the general public made a claim, they would need the support or confirmation from emergency service organisations or law enforcement agencies in order to meet the threshold for the exception to apply.

2.146 The safeguards that operate in respect of information disclosed are that information may only be disclosed where: 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; it must be unreasonable or impracticable to obtain the consent of the person the disclosure relates to before information can be disclosed; and any secondary use or disclosure of information received must be for the authorised purpose, contravention of which is an offence punishable on conviction by 2 years imprisonment. The minister further advised that additional safeguards exist in procedures and protocols that are not in the Telecommunications Act or made public, so as not to disclose operational police practices.

Committee comment

2.147 The committee thanks the minister for this detailed response and welcomes the minister's undertaking to update the explanatory memorandum and statement of compatibility to include the additional information provided.

2.148 The committee notes the minister's advice that proposed subsection 285(1B) facilitates the disclosure of information about unlisted numbers, including the name and service address associated with the number, to emergency services. Given the minister has advised that information, in practice, is only shared with emergency services, the committee considers that it would be appropriate for the bill to explicitly limit who the information can be shared with or, at a minimum, for the explanatory memorandum to be updated to specify this information. This would assist in limiting the scope of the power to share personal information in subsection 285(1B) and therefore reduce the potential for a decision to unduly impact on an individual's right to privacy.

2.149 Further, information or the contents of a document that may be shared under subsection 300(1) must relate to the 'affairs or personal particulars (including any unlisted telephone number or any address) of another person'. The committee notes the minister's advice that this may include location triangulation information but will never include the substance of a communication. The committee considers that not disclosing the substance of a communication is an important safeguard to an individual's privacy. However, the committee notes that the term 'affairs or personal particulars' is not defined in the Telecommunications Act and that it is not explicit on the face of the bill what this may include or that the substance of a communication cannot be disclosed. Given the importance of the phrase 'affairs or personal particulars' to the use of the power under subsection 300(1), the committee considers that it would be appropriate to provide guidance as to its meaning, either within the bill, or at a minimum, within the explanatory memorandum. The committee also considers that it would be more appropriate to include a requirement that the substance of a communication cannot be disclosed.

2.150 The committee requests the minister's further advice as to:

• whether the bill could be amended to explicitly limit who may receive information or a document under subsection 285(1B) or, at a minimum, whether the explanatory memorandum can be updated to clarify this; and

• whether the term 'affairs or personal particulars' can be defined in the Telecommunications Act 1997 or, at a minimum, in the explanatory memorandum, including by providing examples of what may or may not be included in the definition.

---

[138] Schedule 1, items 6, 7, 8 and 9, proposed subsection 285(1B) and proposed sections 287 and 300. The committee draws senators' attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

[139] See, for example, the primary use and disclosure offences set out in sections 276 and 277.

[140] Section 285.

[141] Sections 287 (primary use and disclosure) and 300 (secondary use and disclosure).

[142] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2022 (30 November 2022) pp. 3-6.

[143] The minister responded to the committee's comments in a letter dated 16 December 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.