Telecommunications (Interception and Access) (Emergency Service Facilities — Western Australia) Instrument 2022

The central concept is the “emergency service facility”. The TIA Act itself, which is not reproduced here, defines that term by reference to premises declared to be such by the Attorney‑General. This instrument operationalises that definition for Western Australia by listing the specific premises. The instrument does not re‑define the term; it simply provides the secondary details required by subsection 6(2D). The two key pieces of information are: (a) the name of the force or service operating the premises, and (b) the geographical region of those premises.

The “force or service operating the premises” includes a mix of government and non‑government entities. The Western Australia Police Force appears multiple times, with different regions (Perth, Maylands, Midland). St John Ambulance Australia (Western Australia) is a charitable organisation, not a government body. The Department of Fire and Emergency Services (DFES) is a state government department. Airservices Australia - Aviation Rescue and Fire Fighting Service is a Commonwealth government business enterprise, listed at five regional airports (Broome, Karratha, Newman, Perth Airport, Port Hedland). The Royal Flying Doctor Service (RFDS) is a non‑profit organisation, with items for both Perth and South Perth. The Perth Airport Control Centre (PACC) is listed at Perth Airport. The inclusion of non‑government operators is significant: it means that the TIA Act’s emergency service facility provisions extend to entities that are not traditional emergency services, such as the RFDS and St John Ambulance. This has implications for their obligations and protections under the TIA Act.

“Geographical region” is a term used rather than a precise address. For example, item 1A specifies “Perth” and item 1B “Maylands” for police premises. Item 7 says “Broome” for Airservices Australia’s facility there. The instrument does not provide street addresses, postcodes, or bounds. This imprecision could create practical difficulties. For instance, if a carrier needs to know whether a specific building in “Perth” is covered, the instrument alone is insufficient. The underlying declaration made by the Attorney‑General (not published here) would presumably contain more precise details. The instrument therefore acts as a register of operators and regions, not as a cadastre. Users must cross‑reference with the original declaration or the administrative records of the Attorney‑General’s Department to pinpoint exact premises.

Another supporting concept is the compilation itself: the instrument is presented as a “compilation” under the Legislation Act 2003, showing amendments as at 10 July 2025. The endnotes reveal that the legislation history includes a 2025 instrument that added item 12A, and that a 2023 instrument eventually replaced the original item 1 with items 1A and 1B. Understanding the amendment chain is vital for determining which items were in force at a particular time, especially as item 2 had a delayed commencement until 31 July 2024. The concept of “misdescribed amendment” is also introduced in the endnotes, alerting practitioners that editorial changes under section 15V of the Legislation Act 2003 might be needed. This is a technical but important concept for anyone construing the instrument’s text.

The instrument directly affects four categories of persons and entities. First, the operators listed in the table: the Western Australia Police Force, St John Ambulance Australia (WA), the Department of Fire and Emergency Services, Airservices Australia, the Royal Flying Doctor Service, and the Perth Airport Control Centre. Each of these organisations operates premises that have been declared emergency service facilities. Their inclusion means they may be subject to special rights and obligations under the TIA Act - for example, exemptions from warrant requirements for interceptions made in the course of their emergency duties, or duties to maintain interception‑capable equipment for law enforcement access. The instrument does not spell out these consequences, but the operator is directly affected by its status.

Second, telecommunications carriers and service providers. Under the TIA Act, carriers have obligations to ensure their networks can be intercepted by law enforcement, and there are exceptions or modifications for emergency service facilities. A carrier must know which premises in WA are emergency service facilities to correctly apply those provisions. For instance, if a carrier’s network passes through a declared facility, there may be limits on the carrier’s ability to intercept communications on that network without authorisation, or alternatively, the carrier may be required to provide interception capability to the operator. The instrument provides the authoritative list the carrier must consult. A carrier that overlooks an item listed here could inadvertently breach the TIA Act.

Third, law enforcement and interception agencies. Bodies that apply for interception warrants or authorisations, such as the Australian Federal Police or state police forces, must know which premises are emergency service facilities because different rules may apply to interception of communications at or involving those premises. For example, the TIA Act may allow emergency service personnel to intercept without a warrant in life‑threatening situations, but only on those premises. Law enforcement officers executing warrants near listed facilities must take care not to intrude on protected communications. The instrument therefore shapes operational decisions.

Fourth, the public and individuals communicating through or with these facilities. For example, a person calling 000 from a mobile phone may have their location data handled differently if the call is routed through a listed emergency service facility. The instrument indirectly affects the privacy protections applicable to those communications. However, the instrument does not impose any direct obligations on the public; its effect is mediated through the TIA Act’s substantive provisions.

The instrument is geographically limited to Western Australia. Equivalent instruments exist for other states and territories, but they are separate. Entities operating facilities in multiple states must consult each instrument. The instrument’s amendments show that new facilities can be added over time, so the affected group is not static. Organisations that believe their premises qualify but are not listed should seek an amendment - but the instrument itself does not provide a process for that; amendment is at the Attorney‑General’s discretion.

The instrument itself imposes no duties and confers no rights. It is a pure specification. However, by identifying which premises qualify as emergency service facilities under the TIA Act, it triggers the duties and rights that the TIA Act attaches to that status. Those duties and rights are not enumerated in the instrument, but they can be inferred from the broader legislative scheme. The most prominent likely duties include: the duty of a carrier to ensure that communication services to emergency service facilities can be intercepted in accordance with Part 2‑2 of the TIA Act (industry assistance); the duty of the facility operator to maintain cooperative arrangements with interception agencies; and possibly duties regarding the protection of intercepted information. Conversely, rights may include: the right of the operator to intercept communications in emergency situations without a warrant, as permitted under Division 3 of Part 2‑1 of the TIA Act; the right to receive funding or technical assistance for interception capabilities; and the right to designate communications as protected, limiting disclosure.

For a listed operator, the key practical right is certainty. By being listed, the operator can rely on the TIA Act’s provisions that apply specifically to emergency service facilities. For example, if a St John Ambulance dispatcher needs to intercept a phone call to provide emergency medical instructions, the TIA Act may allow that without a warrant only if the interception occurs at a facility that is an emergency service facility. The instrument confirms that the Belmont and Wangara stations of St John Ambulance (WA) qualify. Without this listing, the operator would face legal risk.

For carriers, the key duty is to know the list and configure their systems accordingly. A carrier that provides services to a listed facility may be required to maintain an interception capability for that facility’s communications, even if the facility is operated by a non‑government entity. The instrument thus creates a compliance obligation: the carrier must check the instrument against its customer records.

For law enforcement, the instrument imposes a duty of care: before executing an interception warrant, the agency must ensure that the target premises is not an emergency service facility if that would invalidate the warrant or require additional safeguards. The instrument also provides a right to rely on the list when seeking authorisation - a warrant application may need to state whether the target is an emergency service facility, and the instrument is the definitive source.

The amendment history shows that the instrument can be updated, which means duties and rights can shift. For example, the addition of item 12A (RFDS South Perth) in July 2025 extended emergency service facility status to that location, potentially altering the obligations of carriers serving that site and the rights of the RFDS. Parties must monitor amendments.

This instrument contains no penalty provisions. It is a specification, not a regulatory code. However, reliance on the instrument’s accuracy is critical because errors in its application can lead to serious penalties under the TIA Act. The TIA Act imposes criminal penalties for unauthorised interception (up to 2 years imprisonment under section 7) and civil penalties for non‑compliance with industry assistance obligations (up to $10 million for a body corporate under Part 32). These penalties are not found in this instrument, but the instrument determines whether a particular premises is within the scope of exemptions or obligations.

Enforcement of the TIA Act rests with the Australian Federal Police, the Commonwealth Director of Public Prosecutions, and the Australian Communications and Media Authority (ACMA). If a carrier fails to maintain interception capability for a listed emergency service facility, the ACMA may issue a direction, and non‑compliance can lead to civil penalty proceedings. Conversely, if an operator claims the right to intercept without a warrant but the facility is not in the instrument, the operator could face prosecution for unlawful interception. The instrument thus acts as an evidentiary tool: a court or tribunal would refer to it to determine whether a facility was an emergency service facility at the relevant time.

The amendments reveal that the instrument has been updated several times, and retrospective effect may arise. For example, the 2025 amendment was registered on 19 August 2025 but commenced on 10 July 2025. This means the addition of item 12A applies from 10 July 2025, even though the instrument text was not available until mid‑August. If a party relied on the pre‑amendment list during that interval and then the new item changed the legal position, there could be a window of uncertainty. The Legislation Act 2003 governs the commencement of legislative instruments, but this technical issue could lead to disputes.

There is no recorded litigation history in the instrument itself, but the instrument could be challenged on procedural grounds - for example, if the Attorney‑General did not follow the correct procedure in making a declaration. A person affected could apply for judicial review under the Administrative Decisions (Judicial Review) Act 1977 or seek a declaration that a particular premises is not an emergency service facility. The penalty for an entity incorrectly claiming emergency service facility status could be significant, so anyone advising a client should verify not only the current compilation but also the validity of the underlying declaration.

The instrument is made under, and subject to, the Telecommunications (Interception and Access) Act 1979. It operates within the framework of that Act, which is the primary source of law regulating interception of communications in Australia. The TIA Act contains numerous provisions that refer to “emergency service facility”, including definitions, exceptions to warrant requirements, obligations on carriers, and rules for the use of intercepted information. This instrument gives concrete meaning to those references for Western Australia. Without it, the TIA Act’s provisions would be inoperative for WA facilities because the Act itself does not list them.

The instrument interacts with state emergency services legislation, though indirectly. For example, Western Australia’s Emergency Management Act 2005 and the Fire Brigades Act 1942 establish the functions of DFES and the WA Police Force. The TIA Act and this instrument do not override those state laws; they add a telecommunications‑specific layer. Interception that occurs at a DFES facility must comply with both the state law empowering the emergency activity and the Commonwealth interception regime. This can create dual compliance requirements. For instance, a DFES officer may be permitted under state law to listen to a fire‑scene radio communication, but the TIA Act may require that such interception be authorised by the instrument’s listing. The instrument ensures that the officer’s actions are protected under Commonwealth law.

The instrument also interacts with other Commonwealth legislative instruments, particularly analogous instruments for other states and territories. There are likely identical or similar instruments for New South Wales, Victoria, etc., each made under the same subsection 6(2D). Together, they form a national scheme. A carrier operating across multiple jurisdictions must consult each instrument. The instrument does not incorporate or cross‑reference those others, so practitioners must maintain a full set.

The Legislation Act 2003 governs the registration, tabling, and disallowance of this instrument. It is a legislative instrument for the purposes of that Act, meaning it is subject to parliamentary scrutiny. The endnotes confirm that it has been registered and that misdescribed amendments can be corrected under section 15V. This interaction is procedural but important for validity.

The Surveillance Devices Act 2004 and the Criminal Code 1995 (Cth) may also intersect with this instrument. For example, if an emergency service facility uses video surveillance, the interception provisions of the TIA Act might overlap with the Surveillance Devices Act. The instrument’s role is limited to the TIA Act, but in litigation, the status of a facility under this instrument could affect whether a particular surveillance is lawful. There is no indication in the instrument that it displaces other laws, so all relevant Commonwealth and state laws continue to apply.

The instrument’s amendment history, as recorded in Endnote 4, reveals a series of targeted changes. The original instrument, registered on 29 November 2022, came into force on 30 November 2022. It originally contained item 1 for Western Australia Police Force - Perth, and item 2 for Midland. The 2023 amending instrument (F2023L01361) repealed item 1 and inserted items 1A (WA Police - Perth) and 1B (WA Police - Maylands). That same amendment provided a delayed commencement for item 2: it took effect from 31 July 2024, not from the date of the amendment. This means that for the period from 5 October 2023 to 30 July 2024, item 2 (WA Police - Midland) was not yet in force, despite appearing in the 2023 instrument. The 2023 instrument also itself was amended by a 2024 instrument (F2024L00291) on 13 March 2024, although the endnote shows that the 2024 instrument amended the 2023 instrument before the 2023 instrument’s item 2 had commenced. This kind of layered amendment is typical but requires careful date tracking.

The most recent amendment, the Telecommunications (Interception and Access) Legislation Amendment (Emergency Service Facilities) Instrument (No. 2) 2025 (F2025L00927), added item 12A (Royal Flying Doctor Service - South Perth). This amendment is recorded as having a commencement date of 10 July 2025 under section 2(1) item 1. The instrument itself was registered on 19 August 2025, over a month later. This backdating is permissible under the Legislation Act 2003, but it creates a compliance risk: any person relying on the instrument before registration would not have known item 12A existed. The amendment history also notes the repeal of paragraph (a) and the commencement paragraph under LA sections 48C and 48D, which are standard editorial repeals of transitional provisions that have self‑repealed.

Practitioners must consult the endnotes to determine the exact version applicable to a past date. For example, any matter arising between 30 November 2022 and 4 October 2023 would use the original instrument with only item 1 and item 2 (in force). Between 5 October 2023 and 30 July 2024, the instrument had items 1A, 1B, and item 2 was not yet in force. From 31 July 2024, item 2 was in force. From 10 July 2025, item 12A was added. The amendment history also uses abbreviations like “ad” (added) and “rep” (repealed) to show changes. There is no indication of any substantive change to the original 12 items other than the replacement of item 1, the delayed commencement of item 2, and the addition of item 12A. The instrument remains a living document, and further amendments are likely as new emergency service facilities are declared.

The instrument itself contains no references to litigation, and the endnotes do not record any judicial decisions or court proceedings. Because the instrument is relatively new (first registered in 2022), it has likely not been the subject of substantive litigation. However, it may have been considered in cases involving the TIA Act, but those cases would not cite this instrument unless the status of a WA emergency service facility was in issue. The instrument does not provide a litigation history section; it is a legislative instrument, not a court document.

Potential grounds for litigation include: (a) whether the Attorney‑General validly declared a particular premises as an emergency service facility, and whether that declaration was correctly specified in this instrument; (b) whether an entity not listed should have been included, which could be challenged via judicial review; (c) whether the geographical region description is sufficiently certain to allow enforcement; and (d) whether the delayed commencement of item 2 was lawfully made. The 2023 instrument’s delayed commencement (31 July 2024) is unusual and could be challenged if it caused prejudice to a party who relied on the absence of a Midland facility. But no such challenge appears in the public record.

The instrument is subordinate to the TIA Act, so any litigation challenging the instrument’s validity would likely focus on whether it complies with the empowering provision (subsection 6(2D)). For example, if the Attorney‑General purported to specify a service that is not actually operating the premises, or specified a region that does not match the actual location, the instrument could be ultra vires. The amendment correcting item 1 to split into Perth and Maylands suggests that the original specification may have been too broad, and the change was made to better reflect reality. That change itself could have been precipitated by litigation or a compliance audit, but the instrument does not say.

Practitioners should be aware that the instrument may be considered in any proceeding where interception evidence is challenged on the ground that it involved an emergency service facility. If a defendant argues that evidence was obtained in breach of the TIA Act because the interception occurred at a non‑listed facility, the court would look to this instrument. Conversely, if the prosecution relies on an exemption for emergency service facilities, it must prove the facility was listed at the time. The instrument is thus a fact in evidentiary disputes, even if it has not been directly litigated itself. Its amendment history and compilation status will be scrutinised to ensure the version in force at the relevant time is used.

Several practical traps arise from the instrument’s structure and history. First, the geographical region descriptions are vague. “Perth” for item 1A could cover a wide area, including multiple police stations. If the WA Police operate more than one building in Perth, the instrument does not distinguish them. Any person relying on the instrument must obtain the underlying declaration (which likely contains the exact address) to be certain which premises is covered. The instrument alone is insufficient for precise identification.

Second, the delayed commencement of item 2 (Midland) from 31 July 2024 to 5 October 2023 (when the amending instrument was registered) creates a six‑month gap. During that gap, the Midland facility was not an emergency service facility under the TIA Act, even though it was listed in the 2023 amendment instrument. Anyone who assumed the instrument took effect immediately would have been wrong. The compiled instrument shows the in‑force text as at 10 July 2025, but a historical search must consult the amendment history to see that item 2 was not in force between October 2023 and July 2024.

Third, the backdating of the 2025 amendment (item 12A effective 10 July 2025 but registered 19 August 2025) means that the instrument was technically in force for over a month before it was published. A carrier that checked the Register after 10 July but before 19 August would not see item 12A and might not have implemented necessary changes. The Legislation Act 2003 allows this backdating, but it imposes a burden on regulated entities to monitor not just registered instruments but also anticipated changes. This is a compliance trap.

Fourth, non‑government operators (St John Ambulance, RFDS) are included. These entities may not be familiar with interception laws. They might inadvertently undertake actions (such as recording calls) without realising that their premises being listed triggers special rules and possible obligations to maintain interception capability. They could face penalties if they do not comply with TIA Act obligations that apply to emergency service facilities. The instrument does not warn them of these consequences.

Fifth, the instrument only covers premises that have been declared. If a facility is not listed, it is not an emergency service facility under the TIA Act, regardless of its function. An entity that believes it qualifies must apply to the Attorney‑General for a declaration; this instrument cannot be used to self‑certify. Similarly, if a listed facility moves to a new address, it may no longer be covered unless the declaration is updated and the instrument amended. The instrument does not contain an expiry date or review mechanism, so old listings remain in force until amended.

Sixth, the instrument uses the term “force or service operating the premises” but not “owner” or “occupier”. This could cause confusion if the operator changes (e.g., outsourcing). A private security firm operating a police control room would not be the operator; the WA Police Force likely remains listed. The instrument does not address changes in operational control. A carrier dealing with the day‑to‑day manager might not realise the facility is still covered.

Compliance with this instrument is not a standalone requirement; it is a means to comply with the TIA Act. The first step for any entity potentially affected is to obtain and maintain the current compiled version of the instrument. Given the multiple amendments since 2022, relying on the original version would be dangerous. The official compilation from the Federal Register of Legislation should be used, noting the compilation date (10 July 2025 for the text provided). For periods before that date, the instrument as in force at the relevant time must be reconstructed using the legislation history and amendment endnotes.

For operators listed in the table (e.g., WA Police, St John, DFES, Airservices, RFDS, PACC), compliance involves understanding what TIA Act obligations attach to emergency service facilities. They should review the TIA Act, particularly Division 3 of Part 2‑1 (exceptions for emergency service personnel) and Part 14 (industry assistance). They may need to enter into arrangements with carriers for interception capability. They should also ensure that their own interception of communications (e.g., recording emergency calls) complies with the TIA Act, and that they do not assume any exemption applies to facilities not listed. Internal policies should reference the instrument.

For telecommunications carriers and service providers operating in WA, compliance means cross‑referencing their network infrastructure and customer records against the instrument. For each listed facility, the carrier must determine whether the TIA Act requires it to provide interception assistance. If so, the carrier must implement technical capabilities (e.g., lawful interception gateways) and maintain records. The instrument does not impose a time limit for compliance after an amendment; carriers should monitor the Federal Register for new instruments or amendments. The backdated commencement of item 12A suggests carriers should subscribe to alerts or proactively check for upcoming changes.

For law enforcement agencies and interception bodies, compliance involves checking this instrument before applying for warrants or executing intercepts at or near any of the listed premises. A warrant application should note whether the target is an emergency service facility. Operational guidelines should incorporate a requirement to consult the instrument and maintain a current copy.

For legal practitioners advising clients, compliance means including the instrument in due diligence for any matter involving interception evidence, emergency service operations, or telecommunications regulation. The instrument’s amendment history should be reviewed to determine the applicable version. In litigation, the instrument may need to be tendered to prove the status of a facility.

General compliance practices: maintain a log of the instrument’s compilation dates and amendments; set up monitoring for new legislative instruments under the TIA Act; train staff on the significance of the list; and, for operators not currently listed, consider whether to seek a declaration. The instrument does not provide a mechanism for applications, but the Attorney‑General’s Department likely has an administrative process. Proactive engagement can prevent future compliance gaps.