Telecommunications (Emergency Management Persons and Emergency Laws) Instrument 2024

The instrument rests on two statutory definitions from the Telecommunications Act 1997: “emergency management person” and “emergency law”. The Act itself defines these terms by reference to what the Minister specifies in a legislative instrument. This instrument fills those definitions. An “emergency management person” is, by virtue of section 275B(1) of the Act, a person who holds an office or position specified by the Minister. The Schedule lists over 60 offices across all Australian jurisdictions. The list is exhaustive: no other person qualifies. The list includes senior police commissioners, fire commissioners, emergency services commissioners, state emergency controllers, health department secretaries, and specific positions within agencies such as the National Emergency Management Agency, Queensland Fire and Emergency Services, and the Victorian Department of Conservation, Forests and Lands. Some positions are defined by reference to the legislation that creates them (e.g., “Commissioner of the NSW Rural Fire Service as mentioned under subsection 10(1) of the Rural Fires Act 1997”). Others are generic, such as “Secretary of the NSW Ministry of Health as appointed under section 23 of the Government Sector Employment Act 2013”. The instrument does not include deputy or acting holders unless separately listed. The second concept, “emergency law”, is defined in section 275D(1) of the Act by reference to a law specified by the Minister. This instrument specifies only the definitional provisions of each jurisdiction’s emergency management legislation. It does not specify the entire Act. For instance, for New South Wales the instrument specifies the “definition of ‘emergency’ in section 4 of the State Emergency and Rescue Management Act 1989”. For South Australia it specifies three definitions: “emergency”, “identified major incident”, and “major emergency” from section 3 of the Emergency Management Act 2004. The effect is that the scope of emergencies that can trigger powers under the Telecommunications Act is limited to the scope of those definitions. If a State declares an emergency under a different piece of legislation (e.g., a public health emergency under a public health act), that declaration would not qualify as an “emergency law” under this instrument. The instrument therefore creates a closed set of statutory triggers. This is a deliberate narrowing: it prevents the Telecommunications Act’s emergency powers from being invoked for emergencies that do not meet the specified definitions. The concept of “emergency” varies across jurisdictions; some include natural disasters, others include acts of terrorism or major industrial accidents. The instrument does not harmonise these definitions; it accepts each jurisdiction’s chosen wording. Carriers must therefore understand the precise definition in each State or Territory where they operate. The repeal concept is also significant: the earlier 2020 instrument (dealing with data for emergency warning systems) is rescinded, meaning any continuing reliance on that definitional framework must now be under this instrument.

The primary categories affected are the holders of the listed offices themselves. Each person who holds one of the specified positions becomes an “emergency management person” under the Telecommunications Act. This is not voluntary; it is a consequence of holding the office. These individuals gain statutory standing to potentially exercise powers under Part 27 of the Act, such as requesting access to telecommunications data or directing carriers to give priority to emergency communications. The instrument does not impose any additional duties on those persons beyond whatever the Act imposes. The second major category is telecommunications carriers, carriage service providers, and related entities. They must be able to verify whether a person claiming to be an emergency management person actually holds one of the listed offices. That requires maintaining up-to-date records of the occupants of those offices, which change over time. The instrument does not provide a central register; carriers must rely on other sources (government gazettes, appointments notices) to confirm identity. Failure to comply with a valid request could expose the carrier to penalties under the Act; compliance with an invalid request could breach statutory obligations relating to privacy and data security. State and Territory emergency management agencies are also affected: their operational plans may now rely on the ability to issue lawful requests under the Telecommunications Act through the specified office holders. The instrument affects all Australian residents indirectly because it expands the set of officials who can lawfully access telecommunications data or influence network operations during an emergency. The repeal of the 2020 instrument affects any person or entity that relied on the earlier specification of data for emergency warning systems. That specification is gone. Those who previously used that instrument to justify data collection or disclosure must now check whether their activities fall within the replacement framework. The note about the substitution of the AFP Minister reference affects the Commonwealth’s internal governance: the Minister for Emergency Management now makes this instrument, not the AFP Minister. Within the Commonwealth, only three positions are specified: the AFP Commissioner and two roles in the National Emergency Management Agency (Coordinator-General and Deputy Coordinator-General). No other Commonwealth officers (e.g., from Defence, Home Affairs, or the ADF) are specified. That limits who can invoke emergency powers under the Act at the federal level. The instrument also affects the states and territories in that it incorporates their statutory definitions of emergency. Any amendment to those state definitions will automatically affect the scope of this instrument, because the instrument incorporates the definition as it stands from time to time? The instrument does not say “as amended from time to time” but it simply refers to the definition in the named Act. If a state amends its definition, the instrument would need to be remade to capture the change. This creates a risk of mismatch.

The instrument itself imposes no duties directly and confers no rights directly. It is definitional. The duties and rights arise from the Telecommunications Act 1997, which is not reproduced here. However, based on the reference to sections 275B and 275D, carriers and other parties should understand that the Act likely imposes duties to comply with lawful requests from emergency management persons, and gives those persons rights to make such requests. The instrument ensures that only the specified persons have those rights and only the specified laws define the triggering emergency. For carriers, the key duty is to respond promptly and appropriately when a request is made by someone who holds a specified office and who asserts that an emergency (as defined by the specified law) exists. Carriers may have a duty to provide information, suspend services, or prioritise calls. The instrument does not define the precise scope of those duties; that is left to the Act. The rights of the specified persons are similarly derived from the Act. They have the right to make the request, but the instrument does not state what happens if they exceed their authority or act in bad faith. There is no express right to delegate or sub-authorise; only the named office holder qualifies. No deputy or acting appointee is listed unless explicitly included. For example, the ACT lists “Deputy Emergency Controller” separately, so that position qualifies. But many other jurisdictions list only the principal office. The instrument gives no guidance on whether acting appointments count. This is a significant gap for compliance. The instrument also gives no right of appeal or review to carriers who disagree with a request; any dispute would be resolved under the Act’s own mechanisms. The repeal of the 2020 instrument removes whatever rights or duties that instrument created. That may affect ongoing operations for emergency warning systems. The instrument does not contain a savings or transitional provision; the repeal is immediate. Any data collection or disclosure that was authorised solely by the 2020 instrument must now find a new legal basis, either under this instrument or elsewhere. The instrument does not create any rights for members of the public, such as a right to be informed when their data is accessed. Privacy rights remain under the Privacy Act 1988 and other laws, but this instrument does not modify those.

This instrument does not contain any penalty provisions. It is a remedial or definitional instrument made under the Telecommunications Act, and any penalties for non-compliance with obligations under that Act would be found in the Act itself. The Act likely imposes civil penalties or criminal offences for carriers that fail to comply with lawful emergency requests, or for persons who misuse emergency powers. The instrument’s role in enforcement is evidentiary: to prove a person was an emergency management person, the instrument would be tendered to show that the office they hold is listed. Similarly, to prove that a particular declaration of emergency qualifies, the instrument would be used to establish that the relevant definition from a specified law was satisfied. The instrument may also be relevant to defences. If a carrier is prosecuted for refusing a request, they could argue that the person making the request did not hold a specified office, or that the emergency was not one covered by a specified law. Conversely, if a carrier complies with a request from a person who does not hold a specified office, they may face liability for unlawful disclosure. The instrument therefore sets the boundaries of lawful enforcement. The Australian Communications and Media Authority (ACMA) may have enforcement powers under the Act, and the instrument would guide its investigations. There are no penalties in the instrument, but the Act’s penalties could be substantial, including fines and possible imprisonment for misuse. The instrument does not create any new investigative powers; it merely defines existing ones. The lack of express penalties in the instrument is not a gap; it is standard for definitional instruments. However, users should be aware that relying on an incorrect interpretation of the instrument could attract enforcement action. There is no provision for compensation for carriers who comply with a request that later proves to be invalid. The risk of error lies with the carrier. The instrument does not establish any oversight or audit mechanism for emergency management persons. Enforcement of abuse of power by those persons falls to other laws (e.g., criminal codes, police integrity commissions). The instrument’s quiet technical nature masks the potential for coercive state action. Practitioners advising carriers should advise that any unusual or borderline request should be documented and, where possible, verified through two independent sources (e.g., the official gazette showing appointment, and confirmation from the agency head). The instrument’s enforcement implications are thus largely about risk allocation: the carrier bears the cost of getting it wrong.

The instrument interacts primarily with the Telecommunications Act 1997, particularly Part 27 (which deals with emergency and other matters). It gives content to the terms “emergency management person” and “emergency law” that appear in that Part. The instrument does not override or modify the Act; it fills the gaps. The instrument also interacts with each specified State and Territory law. By picking up the definition of “emergency” from those laws, the instrument makes them relevant to federal telecommunications regulation. If a State amends its emergency definition, the instrument (unless it incorporates future amendments) may become inconsistent. The instrument does not say whether it refers to the definition as in force from time to time or as at a particular date. The better view is that it refers to the law as it stands at the time of the request, but this is arguable. The interaction with state laws is not reciprocal: state laws do not incorporate this instrument. The instrument also interacts with the Acts Interpretation Act 1901 (Cth) and the Legislation Act 2003 (Cth) regarding the making, registration, and tabling of legislative instruments. It is a legislative instrument subject to disallowance. The note about the Acts Interpretation Amendment Substituted Reference Order 2022 shows interaction with that amending instrument, which changed the relevant ministerial reference. The repeal of the 2020 instrument means that any reliance on that instrument must be re-evaluated. The 2020 instrument dealt with data for emergency warning systems, suggesting a narrower purpose. The new instrument is broader (covering all emergency laws) but does not retain any specific provisions about data for warning systems. This repeal may create a gap for those who used the old instrument to authorise automated data feeds to emergency warning systems. There is no transitional savings provision in the repeal. The instrument may also interact with the Telecommunications (Interception and Access) Act 1979 (Cth) if emergency management persons under this instrument also have powers under that Act, but that is not stated in the instrument. The instrument does not address privacy laws directly, but its operation necessarily engages privacy because it enables access to telecommunications data. The Privacy Act 1988 may impose conditions on such access, but the instrument does not modify those conditions. The instrument does not interact with the National Emergency Declaration Act 2023 or other federal emergency declaration laws; it only picks up state and territory definitions. The interaction with the Australian Federal Police Act 1979 is direct because the AFP Commissioner is listed. Similarly, the instrument interacts with the legislation that establishes each specified office (e.g., the Rural Fires Act 1997 (NSW)). The absence of any Commonwealth Defence or intelligence personnel is notable. The instrument does not interact with international law or emergency declarations from other countries. It is purely domestic.

This instrument was made on 15 July 2024 by the Minister for Emergency Management, Murray Watt. It was registered on the Federal Register of Legislation (FRL) and commences the day after registration. The instrument is not an amendment of any earlier instrument; it is new. It repeals an earlier instrument: the Telecommunications (Data for emergency warning systems) Instrument 2020. That repeal is the only amendment of pre-existing legislative instruments that this instrument effects. The instrument itself may be amended in future by a later instrument made under the same power. There have been no amendments to this instrument as of its commencement. The note in section 3 records a prior amendment to the underlying Act: the Acts Interpretation Amendment Substituted Reference Order 2022 substituted references to the AFP Minister with the Minister for Emergency Management. That amendment changed the maker and the authority under which this instrument is made. The instrument therefore could not have been made before September 2022 in its current form. The 2022 order is itself an earlier legislative instrument that amended the Telecommunications Act. The repeal of the 2020 instrument means that the definitional landscape for emergency telecommunications has been consolidated. The 2020 instrument was made under different head of power (possibly section 275A or similar) but the instrument now relies on sections 275B and 275D. The amendment history of the underlying Telecommunications Act is not relevant to this instrument, but practitioners should note that the power to make this instrument is subject to the Act’s own amendment history. There are no transitional provisions, no savings, and no provisions dealing with future amendments to state laws. The instrument is unlikely to be amended frequently because it requires a ministerial instrument each time. If a state creates a new emergency management office, the instrument would need amendment to include it. The specification of state laws is likely to remain stable unless a state consolidates its emergency management legislation. The instrument does not have an expiry or sunset date; it continues until repealed or superseded.

As of the date of the instrument (July 2024), there is no litigation history. The instrument is new. No court has interpreted its provisions. However, there are several foreseeable sources of litigation that practitioners should watch for. First, the scope of the definitional incorporation: a challenge could arise if a carrier refuses to comply with a request from a person who holds a listed office but the emergency is not one that fits the specified definition. For example, in Queensland, the instrument specifies two separate definitions (disaster and emergency). If a request is made during what the requester calls an emergency but which does not meet either definition, a carrier might be taken to court for non-compliance. The court would need to interpret the instrument’s language to decide whether the request was lawful. Second, the standing of acting or deputy office holders is likely to be litigated. Many jurisdictions do not list acting or deputy positions. If a deputy commissioner (not separately listed) makes a request, a carrier could argue that the request is invalid. The instrument lists “Deputy Commissioner” only in one context: for Western Australia? Actually, the WA list does not include Deputy Commissioner; South Australia includes Deputy Commissioner of Police. So in SA, a deputy is explicitly included. In other states, they are not. This asymmetry invites disputes. Third, the repeal of the 2020 instrument could lead to litigation if a party relied on that instrument and suffered loss because of its repeal. For instance, an emergency warning system provider that had a data-sharing agreement predicated on the 2020 instrument might argue that the repeal impaired their operations. There is no savings provision to grandfather pre-existing arrangements. Fourth, the interaction with the Telecommunications Act’s penalty provisions could be tested. If a carrier is prosecuted for non-compliance, it may raise a defence that the emergency management person was not properly identified or that the emergency law definition was not satisfied. The instrument’s language would then be central. Fifth, a constitutional challenge is conceivable if the instrument is argued to impermissibly delegate legislative power to state definitions. However, the instrument simply picks up existing state laws; this is a common technique and unlikely to succeed. Sixth, the instrument could be subject to a disallowance motion in Parliament, though that is a legislative, not judicial, process. As of now, no court has considered this instrument. Legal practitioners advising in this area should monitor the Federal Court and the Administrative Appeals Tribunal for any cases involving the interpretation of emergency management person powers under the Act, as those cases will necessarily involve this instrument.

Several aspects of this instrument reward close reading and present traps for the unwary. First, not all emergency personnel are covered. Only the specific offices listed qualify. A state or territory firefighter, even a senior one, who does not hold one of the named positions (e.g., a District Officer in Victoria) cannot claim to be an emergency management person under the Act. The list is exhaustive, not illustrative. Second, the instrument picks up only the definition section of the specified state laws, not the whole Act. This means that an emergency declared under a power in the same Act but falling outside the definition might not trigger the Telecommunications Act powers. For example, the definition may be narrower than the actual declaration power. Carriers should examine each state’s definition carefully. Third, the instrument does not include any Commonwealth emergency management persons beyond the AFP Commissioner and NEMA’s two top positions. This means that officials from the Department of Defence, the Australian Border Force, or the National Emergency Response Team (if separate) are not included. Any request from a Commonwealth official must come from those three specified persons or their delegates? The instrument does not authorise delegation. Fourth, the repeal of the 2020 instrument is silent on transitional matters. If a carrier had set up a system to automatically provide data to emergency warning systems under the 2020 instrument, that system may now lack legal authority unless it falls within the new definitions. There is no grandfathering. Fifth, the instrument does not account for acting appointments. Unless an office is listed with the prefix “acting” or a separate deputy position is listed, a person acting in the role does not qualify. This is a significant operational risk during emergencies when the principal officeholder may be unavailable. Sixth, the instrument does not provide a mechanism for verifying that a person currently holds the office. Carriers must rely on external information. If a person is suspended or removed but still holds the title, technically they still qualify unless the instrument says otherwise. The instrument does not say “current” or “substantive” holder. The definition of “office or position” in the Schedule is ambiguous. Seventh, the table headings refer to “office or position (and related legislation in the jurisdiction, where applicable)”. The inclusion of legislation is merely informative; the instrument does not incorporate the legislation into the definition. But the careful listing may imply that any change to that legislation that renames or abolishes the office would also remove the person from the instrument. Eighth, the instrument does not cover external territories such as Norfolk Island, Christmas Island, or the Cocos (Keeling) Islands. Only the states and the two mainland territories are listed. Any emergency in those territories would not be covered by a “specified law”. Ninth, the instrument does not include any reference to the Biosecurity Act 2015 or human biosecurity emergencies. Those emergencies are separately dealt with under Commonwealth law, but the instrument does not specify any emergency law from the Commonwealth itself; only state and territory laws are specified. The effect is that a national epidemic under the Biosecurity Act might not be an “emergency law” unless it also satisfies a state definition. This could be a gap in the coverage. Tenth, the instrument uses the phrase “definition of ‘emergency’” in each entry, but for South Australia it adds “identified major incident” and “major emergency”. This is the only jurisdiction with multiple definitions. Carriers dealing with a South Australian request must check which definition is engaged. If the request does not match any of the three, it may be invalid.

Compliance with this instrument is passive for most entities: it defines terms. However, for telecommunications carriers and other entities that may receive requests from emergency management persons, there are practical steps. First, carriers should obtain and retain a copy of this instrument and ensure it is accessible to their network operations and legal teams. Second, carriers should compile a register matching each listed office to the current occupant, to the extent publicly available. This can be done by regularly checking official gazettes, government websites, and contacting emergency management agencies. The register should note the date of appointment and any changes. Third, carriers should develop a verification protocol: when a person claims to be an emergency management person, the carrier should confirm that the person’s name corresponds to the current holder of the listed office. This may require a call-back to a verified number, or checking against a pre-approved list. Fourth, carriers should train staff on the scope of the instrument. They need to know that only the specific offices are valid, not all police officers or fire officers. Staff should be instructed to ask which office the requester holds and to cross-check. Fifth, carriers should understand the definition of “emergency” in each jurisdiction where they operate. A request must relate to an emergency that fits the specified definition. If the requester cannot point to the relevant declaration or incident that meets the definition, the request should be treated with caution. Legal advice should be sought if there is doubt. Sixth, carriers should review any existing memoranda of understanding with emergency services agencies to ensure they are consistent with this instrument. If an MOA relies on the repealed 2020 instrument, it should be renegotiated. Seventh, carriers should document every emergency request, the identity of the requester, the office claimed, the emergency asserted, and the response. This documentation will be critical in any later dispute. Eighth, carriers should consider including a clause in their terms of service for business customers that explains how emergency requests will be handled, though this is not mandatory. Ninth, for entities that are themselves emergency management persons (the listed office holders), compliance means understanding that their position now carries additional authority under Commonwealth law. They should ensure they only exercise that authority when the definitional requirements are satisfied. They should also be aware that acting or delegated authority is not covered unless separately listed. They may need to obtain legal advice before making requests. Tenth, the instrument is a legislative instrument and is subject to disallowance and review. Compliance professionals should monitor the Federal Register of Legislation for any replacements or amendments. The instrument may be updated if a new state emergency acts are passed or office created. Finally, any party affected by the repeal of the 2020 instrument should review their current practices and find alternative legal bases if needed. If the new instrument does not cover their situation, they may need to rely on other provisions of the Telecommunications Act or other laws. Ignorance of the repeal is not a defence.