Telecommunications Act 1992
An Act about telecommunications, and for related purposes.
PART 1 — PRELIMINARY
Short title
1. This Act may be cited as the Telecommunications Act 1992.
Aims of Act
2. The aims of this Act are —
(a) to make provision in relation to the ownership of telecommunications services;
(b) to specify the circumstances in which the Administration may, for purposes relating to telecommunications, exercise powers in relation to land and other property;
(d) to ensure that customer equipment connected to a telecommunications network is safe to persons and property;
(e) to make provision about offences relating to telecommunications; and
(f) to ensure that, except in compelling circumstances, privacy is maintained in relation to telecommunications.
Definitions
3. The following expressions are defined, for the purposes of this Act or of a particular provision of this Act, in Schedule 1 —
affidavit
area of land
basic carriage service
business line
communication
consumer
Court of competent jurisdiction
customer cabling
customer equipment
distinct place
eligible offence
equipment
facility
intercept
Judge
line
line link
officer in charge
owner
PABX
Police Force
private telecommunications information
public mobile telecommunications service
radiocommunication
reserved line link
service
subdivider
subdivision
telecommunications carriage
telecommunications network
telecommunications service
warrant.
Interpretation
4. (1) In the interpretation of this Act, a construction that would promote the aims expressed in section 2 is to be preferred to a construction that would not promote those aims.
(2) Where this Act includes an example of the operation of a provision —
(a) the example is not to be taken to be exhaustive; and
(b) if the example is inconsistent with the rest of the provision, the rest of the provision prevails.
(3) Notwithstanding subsections 4(1) and (2) and the Schedule, nothing in this Act may be interpreted as inferring that a reference to “communication” is a reference to a communication effected other than by means of telecommunication.
PART 2 — OWNERSHIP
Ownership of telecommunications facilities
17. Unless the circumstances indicate otherwise, a facility, or part of a facility, that is supplied, installed, maintained or operated by the Administration remains the property of the Administration, whether or not it has become (either in whole or in part) a fixture.
PART 3 — POWERS TO ENTER LAND
Power to inspect land, etc
18. (1) The Administration may —
(a) for the purpose of determining whether any land is suitable for its purposes —
(i) enter on, and inspect, the land; and
(ii) do anything on the land that is necessary or desirable for that purpose, including, for example, making surveys, taking levels, sinking bores, taking samples, digging pits and examining the soil; and
(b) for the purpose of surveying or obtaining information in relation to any land that, in the Administration’s opinion, is or may be suitable for its purposes —
(i) enter on any other land; and
(ii) do anything on the entered land that is necessary or desirable for that purpose, including, for example, making surveys and taking levels.
(2) Before exercising its powers under subsection 18(1) in relation to any land, the Administration must give reasonable written notice of its intention to do so to —
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner - the occupier.
(3) The notice must specify the purpose for which the Administration intends to exercise its powers in relation to the land.
Powers relating to installation of facilities, etc
19. (1) Subject to this section, the Administration may, for purposes connected with the supply of a telecommunications service —
(a) construct a facility on, over or under any land; or
(b) attach a facility to any building or other structure.
(2) Without limiting subsection 19(1), but subject to this section, the Administration may, for purposes connected with the installation, maintenance or operation of a facility —
(a) enter on, and occupy, any land; and
(b) on, over or under the land do anything necessary or desirable for those purposes, including, for example —
(i) constructing, erecting and placing any plant, machinery, equipment or goods;
(ii) felling and lopping trees and clearing and removing other vegetation and undergrowth;
(iii) making cuttings and excavations;
(iv) restoring the surface of the land and, for that purpose, removing and disposing of soil, vegetation and other material;
(v) erecting temporary workshops, sheds and other buildings; and
(vi) levelling the surface of the land and making roads.
(3) Before exercising its powers under this section in relation to any land, the Administration must give reasonable written notice of its intention to do so to —
(a) the owner of the land; and
(b) if the land is occupied by a person other than the owner - the occupier.
(4) The notice must specify the purpose for which the Administration intends to exercise its powers in relation to the land.
(5) The Administration must ensure that a facility installed over a road, bridge or path is installed in a way that will allow reasonable passage by persons and vehicles.
Trees may be cut, etc
20. (1) If any tree, undergrowth or vegetation on or over any land obstructs, or is likely to obstruct, the operation of a facility, the Administration may, by written notice served on the owner of the land, require the owner to cut down or lop the tree, or to clear and remove the undergrowth or vegetation, in the manner, and within the period, specified in the notice.
(2) If the owner does not comply with the requirement, the Administration may enter the land and cut down or lop the tree, or clear and remove the undergrowth or vegetation, in the manner specified in the notice.
(3) The application of this section is not affected by any other enactment.
Administration may replace, repair and maintain facilities, etc
21. (1) The Administration may, at any time, alter, move, remove, replace or maintain —
(a) a facility constructed on, over or under any land; or
(b) a facility attached to a building or other structure.
(2) For the purpose of exercising powers under subsection 21(1), the Administration may enter on, and occupy, land and may remove, or erect a gate in, any fence.
(3) Before removing, or erecting a gate in, a fence, the Administration must take all reasonable steps to give written notice of its intention to do so to the occupier of the land on which, or on the boundary of which, the fence is erected.
Subdivider to pay for necessary alterations, etc
22. (1) Where it becomes necessary, in the opinion of the Administration, because of the subdivision of any land, to remove, or alter the position of, a facility on, over or under the land, the Administration may enter the land and do anything necessary or desirable for that purpose.
(2) The person who subdivided the land is liable to pay to the Administration the reasonable cost of anything reasonably done by the Administration under subsection 22(1) and that amount may be recovered in a Court of competent jurisdiction as a debt due to the Administration.
Powers extend to officers, employees, etc
23. Where, under this Part, the Administration is empowered to enter on land, inspect land, occupy land or do anything else on, over or under land, the provision also empowers —
(a) an officer or employee; or
(b) a person so authorised in writing by the Chief Executive Officer,
to do that thing.
Administration to do as little damage as practicable, etc
24. (1) In exercising its powers under this Part, the Administration must take all reasonable steps to ensure that it causes as little detriment and inconvenience, and does as little damage, as is practicable.
(2) If a person suffers financial loss or damage because of anything done by the Administration under section 18, 19 or 21 in relation to any property owned by the person or in which the person has an interest, there is payable to the person by the Administration such reasonable amount of compensation as is agreed between them or, failing agreement, as is determined by a Court of competent jurisdiction.
(3) In this section, “Court of competent jurisdiction”, in relation to property, means —
(a) the Supreme Court; or
(b) if the amount of compensation claimed by a person does not exceed the jurisdiction of the Court of Petty Sessions in respect of the recovery of a debt of that amount — that Court.
Service of notices
25. (1) A notice under this Part may be served by post.
(2) If the Administration —
(a) is unable, after diligent inquiry, to find out who owns particular land; or
(b) is unable to serve a notice under this Part on the owner of land either personally or by post,
the Administration may serve a notice under this Part on the owner of the land by publishing a copy of the notice in the Gazette and —
(c) if the land is occupied - serving a copy of the notice on the occupier; or
(d) if the land is not occupied - attaching, if practicable, a copy of the notice to a conspicuous part of the land.
(3) If the Administration is unable, after diligent inquiry, to find out —
(a) whether particular land is occupied; or
(b) who occupies particular land,
it may treat the land as unoccupied land.
(4) If the Administration is unable to serve a notice under this Part on the occupier of land either personally or by post, the Administration may serve a notice under this Part on the occupier by —
(a) publishing a copy of the notice in the Gazette; and
(b) attaching, if practicable, a copy of the notice to a conspicuous part of the land.
(5) This section does not affect the operation of any other law in force in Norfolk Island that authorises the service of a document otherwise than as provided in this section.
PART 4 — TARIFFS
Basic carriage services
26. (1) A telecommunications service is a basic carriage service if, and only if, it is a service for basic communications carriage between 2 or more distinct places and is supplied by means of —
(a) at least one reserved line link; or
(b) facilities including at least one reserved line link.
(2) A service for basic communications carriage is a telecommunications service that consists only of functions each of which is involved in —
(a) establishing, maintaining or terminating a connection across the telecommunications network by means of which the service is supplied;
(b) modifying a connection after it has been so established; or
(c) carrying a communication across the network.
(3) Notwithstanding anything to the contrary in this section, the following are not basic carriage services —
(a) the supply of customer equipment;
(b) the supply of a public mobile telecommunications service;
(c) the supply of telecommunications services via a line link that has been approved by the Minister under paragraph 13(1)(a); and
(d) a satellite dish configured for the purpose of transmitting or receiving any communication that has been approved by the Minister under paragraph 13(1)(b).
Functions necessary for basic communications carriage
27. The regulations —
(a) may provide that specified functions are, or are not; or
(b) may otherwise make provision for or in relation to determining what functions are, or are not,
to be taken, for the purposes of section 26, to be involved in —
(c) establishing, maintaining or terminating a connection across a telecommunications network by means of which a telecommunications service is supplied;
(d) modifying a connection after it has been so established; or
(e) carrying a communication across a telecommunications network by means of which a telecommunications service is supplied.
Approved fees for telecommunications services
28. The approved fees are payable for telecommunications services provided in accordance with this Act, including for basic carriage services.
Terms and conditions for supply of services
31. Subject to any express provision of this Act, the terms and conditions upon which the Administration supplies —
(a) a telecommunications service; or
(b) any other service or thing (for example customer equipment) in relation to a telecommunications service,
are as determined by the Administration.
Identification of consumer
33. (1) A person is, in relation to a telecommunications service, to be taken to be the consumer in respect of the service if the person, in writing —
(a) requested the Administration to provide the service; and
(b) has not requested the Administration to cease to provide the service.
(2) If more than one person is a consumer in respect of a particular telecommunications service, the persons are jointly and severally liable to pay any approved fees payable by the consumers in respect of the service.
Information about surcharges to be provided
34. A consumer must not charge or attempt to charge another person for the provision to the person of access to the telecommunications service in respect of which the first person is the consumer unless —
(a) the charge paid or payable by the other person in respect of the access is no greater than the amount of the approved fee paid or payable by the consumer; or
(b) the consumer takes steps that, in all the circumstances, are adequate to ensure that persons permitted to have access to the service are clearly informed, before using the service, of the amount, or basis of calculation, of the charges to be paid to the consumer in respect of the access.
Penalty: 50 penalty units.
PART 5 — CUSTOMER EQUIPMENT
Connection of customer equipment for which there is no permit
35. (1) A person who knows that a permit for connection to a telecommunications network is not in force in respect of customer equipment of a particular class, or is reckless as to whether such a permit is in force, must not connect to a telecommunications network customer equipment that is included in that class.
Penalty: 50 penalty units.
(2) For the purposes of subsection 35(1), a permit for connection of customer equipment to a telecommunications network is to be taken to be in force if such a permit is in force in respect of customer equipment that is of the same class as the first-mentioned customer equipment.
(3) This section does not apply to customer equipment that is connected to a telecommunications network in such a way that it cannot be used for or in relation to the supply of telecommunications services.
Disconnection of customer equipment for which there is no permit
36. Where —
(a) a person has under the person’s control customer equipment connected to a telecommunications network;
(b) there is no permit in force for connection of the customer equipment to a telecommunications network; and
(c) the Administration gives to the person a written notice stating that —
(i) there is no permit in force for the connection of the customer equipment to a telecommunications network; and
(ii) the person must disconnect the customer equipment from the telecommunications network within a specified period,
the person must comply with the notice.
Penalty: 50 penalty units.
Sale of customer equipment for which there is no permit
37. A person must not sell or supply, or offer to sell or supply, to another person customer equipment that the person knows, or ought reasonably to know, is customer equipment the connection of which to a telecommunications network would be contrary to subsection 35(1), without first notifying the other person —
(a) that there is no permit in force for connection of the equipment to a telecommunications network; and
(b) about the consequences of connecting the equipment to such a network without a permit.
Penalty: 50 penalty units.
Nature of permits
38. A reference in this Part to a permit in force for the connection of customer equipment to a telecommunications network is a reference to such a permit as in force under Division 6 of Part 12 of the Telecommunications Act 1991 of the Commonwealth.
Disconnection, etc of customer equipment
39. (1) The Administration may cease supplying a service to a person by means of a telecommunications network operated by the Administration if, through the use of the service, there is connected to the network customer equipment that is a threat to —
(a) the safety or proper functioning of the network; or
(b) the safety of any person.
(1A) The Administration may cease supplying a service to a person by means of a telecommunications network operated by the Administration if the person breaches the terms and conditions upon which that service is supplied.
(2) The Administration may refuse to supply to a person a service of a kind normally provided by the Administration by means of a telecommunications network operated by the Administration if the Administration is satisfied that the person intends, through the use of the service, to connect or have connected to the network customer equipment that is a threat to —
(a) the safety or proper functioning of the network; or
(b) the safety of any person.
Action for unauthorised connection
40. (1) Where —
(a) a person —
(i) connects customer equipment to a telecommunications network contrary to section 35;
(ii) has under the person’s control customer equipment connected to a telecommunications network that was so connected by another person contrary to section 35; or
(iii) has under the person’s control customer equipment connected to a telecommunications network that, contrary to section 36, has not been disconnected from the network; and
(b) as a result of —
(i) the connection of the customer equipment to the network;
(ii) the customer equipment being used while it was so connected;
(iii) the customer equipment not being disconnected from the network; or
(iv) the customer equipment being used after it was required to be disconnected from the network,
damage is caused to the network, or the Administration suffers a loss or incurs a liability,
the Administration may apply to the Supreme Court for relief.
(2) The relief that may be granted includes an injunction and, at the option of the Administration, either damages or an account of profits.
PART 6 — GENERAL OFFENCES
Wrongful delivery of communications
41. A person must not knowingly or recklessly cause a communication in the course of telecommunications carriage to be received by a person or telecommunications service other than the person or service to whom it is directed.
Penalty: 60 penalty units or imprisonment for 1 year, or both.
Improper use of telecommunications services
42. A person must not knowingly or recklessly —
(a) use a telecommunications service to menace or harass another person; or
(b) use a telecommunications service in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive.
Penalty: 60 penalty units or imprisonment for 1 year, or both.
Fraudulent representations and devices
43. A person must not, by means of an apparatus or device —
(a) defraud the Administration of any approved fee payable for or in relation to a telecommunications service supplied by the Administration; or
(b) knowingly or recklessly cause the Administration to supply a telecommunications service to another person without payment by that other person of the approved fee for the service.
Penalty: 300 penalty units or imprisonment for 5 years, or both.
Interference with telecommunications services
44. (1) A person must not knowingly or recklessly manipulate, or tamper or interfere with, any facility in such a way as to hinder the normal operation of a telecommunications service.
(2) A person must not knowingly or recklessly use or operate any apparatus or device (whether or not it is comprised in, connected to or used in connection with a telecommunications network) in such a way as to hinder the normal operation of a telecommunications service.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
Interference with facilities
45. A person must not knowingly or recklessly tamper or interfere with a facility.
Penalty: 60 penalty units or imprisonment for 1 year, or both.
Equipment used for unlawful purposes, etc
46. (1) A person must not —
(a) connect equipment to a telecommunications network with the intention of using it in, or in relation to, the commission of an offence against a law in force in Norfolk Island; or
(b) use equipment connected to a telecommunications network in, or in relation to, the commission of such an offence.
Penalty: 300 penalty units or imprisonment for 5 years, or both.
(2) Subsection 46(1) does not apply in relation to equipment if the connection by a person of the equipment to a telecommunications network would not be in contravention of section 35.
Interception devices prohibited
47. (1) A person must not —
(a) manufacture;
(b) advertise, display or offer for sale;
(c) sell; or
(d) possess,
an apparatus or device (whether in an assembled or unassembled form) that the person knows is an apparatus or device of a kind that is capable of being used to intercept a communication in contravention of section 48.
Penalty: 300 penalty units or imprisonment for 5 years, or both.
(2) Subsection 47(1) does not apply —
(a) to an apparatus or device unless the apparatus or device could reasonably be regarded as having been designed for the purpose, or for purposes including the purpose, of using it in connection with an act that —
(i) would contravene section 48; or
(ii) if not done in any of the circumstances referred to in subsection 7(2) of the Telecommunications (Interception) Act 1979 of the Commonwealth, would contravene subsection 7(1) of that Act;
(b) to the possession of an apparatus or device by a person in the course of the person’s duties under Part 7; or
(c) in the circumstances, if any, specified in the regulations.
(3) For the purposes of establishing a contravention of subsection 47(1), if, having regard to —
(a) a person’s abilities, experience, qualifications and other attributes; and
(b) all the circumstances surrounding the alleged contravention of that subsection,
the person ought reasonably to have known that an apparatus or device is an apparatus or device of a kind referred to in that subsection, the person is to be taken to have known that the apparatus or device is an apparatus or device of that kind.
PART 7 — PRIVACY
Telecommunications not to be intercepted
48. (1) A person must not —
(a) intercept;
(b) authorise, suffer or permit another person to intercept; or
(c) do anything that will enable the person or another person to intercept,
a communication passing over a telecommunications network.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(2) Subsection 48(1) does not apply in relation to —
(a) anything done by an employee of the Administration in the course of the employee’s duties in connection with —
(i) the installation of a line, or the installation of equipment used or intended for use in relation to a telecommunications network or the operation or maintenance of such a network; or
(ii) identifying or tracing a person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 6;
(b) the interception of a communication by another person lawfully engaged in duties relating to the installation, connection or maintenance of equipment or a line; or
(c) the interception of a communication under a warrant; or
(d) the interception of a communication because of a request made, or purporting to be made, under subsection 54A(2) or (4).
(3) Subsection (1) does not apply to, or in relation to, an act done by a member of the Police Force in relation to a communication if all of the following conditions are satisfied:
(a) the member, or another member of the Police Force, is a party to the communication;
(b) there are reasonable grounds for suspecting that another party to the communication has:
(i) done an act that has resulted, or may result, in loss of life or the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that would or may endanger his or her own life or create a serious threat to his or her health or safety;
(c) because of the urgency of the need for the act to be done, it is not reasonably practicable for an application for a warrant to be made.
(4) Subsection (1) does not apply to, or in relation to, an act done by a member of the Police Force in relation to a communication if all of the following conditions are satisfied:
(a) the person to whom the communication is directed has consented to the doing of the act;
(b) there are reasonable grounds for believing that that person is likely to receive a communication from a person who has:
(i) done an act that has resulted, or may result, in loss of life or the infliction of serious personal injury; or
(ii) threatened to kill or seriously injure another person or to cause serious damage to property; or
(iii) threatened to take his or her own life or to do an act that would or may endanger his or her own life or create a serious threat to his or her health or safety;
(c) because of the urgency of the need for the act to be done, it is not reasonably practicable for an application for a warrant to be made.
(5) As soon as practicable after the doing of an act in relation to a communication under subsection (3) or (4), a member of the Police Force concerned with the communication must apply for a warrant in relation to the matter.
(6) Subsection (5) does not apply if:
(a) action has been taken under subsection (3) or (4) to intercept a communication, or cause it to be intercepted; and
(b) the action has ceased before it is practicable for an application for a warrant to be made.
(7) If a Judge does not issue a warrant in relation to an application made in relation to a matter arising under subsection (3) or (4), the officer in charge must ensure that no further action is taken by the Police Force to intercept the communication or to cause it to be intercepted.
(8) The doing of an act mentioned in subparagraph (3)(b)(ii) or (iii) or (4)(b)(ii) or (iii) in a particular case is taken to constitute an eligible offence, even if it would not constitute an eligible offence apart from this subsection.
Note: See paragraph 51(1)(d) and subsection 52(6). A warrant can only be issued for the purposes of an investigation relating to the commission of an eligible offence.
(9) Subsection (8) has effect only to the extent necessary:
(a) to enable an application to be made for the purposes of subsection (5); and
(b) to enable a decision to be made on such an application and, if a Judge so decides, a warrant to be issued; and
(c) to enable this Act to operate in relation to a warrant issued on the application.
Privacy of information
49. (1) A person must not provide private telecommunications information to another person.
Penalty: 120 penalty units or imprisonment for 2 years, or both.
(2) For the purposes of this section, “private telecommunications information” means information relating to one or more of the following matters —
(a) the fact that a communication passed over a telecommunications network;
(b) the day on which, and the time at which, the communication passed over that network;
(c) the duration of the communication;
(d) the identity of the service from which the communication was made;
(e) the identity of the service to which the communication was made or directed.
(3) Subsection 49(1) does not apply in relation to the provision of private telecommunications information if —
(a) the information —
(i) is provided by or to a person who sent or received, or was intended to receive, the communication; or
(ii) relates to a service, and the information is provided by or to the person who is the consumer in respect of the service,
other than in circumstances where the information is provided to such a person in connection with identifying or tracing a person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 6;
(b) the information is provided by a person lawfully engaged in duties relating to the installation of equipment used or intended for use in relation to a telecommunications network or the operation or maintenance of such a network to another such person;
(c) the information is provided by an employee of the Administration to another such employee for the sole purpose of accounting for or recovering approved fees;
(d) the information is provided by an employee of the Administration to another such employee or to a member of the Police Force in connection with identifying or tracing a person who has contravened, or is suspected of having contravened or being likely to contravene, a provision of Part 6;
(e) the information is required to be provided in accordance with any law, or in accordance with the practice or procedure, or an order, of a Court exercising civil or criminal jurisdiction; or
(f) the information is provided in accordance with a warrant.
Applications for warrants
50. (1) A member of the Police Force may apply to a Judge, in accordance with this section, for a warrant in respect of —
(a) the interception of a communication; or
(b) access to private telecommunications information.
(2) Subject to subsection 50(3), an application for a warrant must be in writing.
(3) An application may be made orally or by telephone if —
(a) the person making the application is the officer in charge, or a member of the Police Force authorised in writing by the officer in charge to make such applications orally or by telephone; and
(b) the person thinks it is necessary, because of urgent circumstances, to make the application orally or by telephone.
(4) A written application —
(a) must set out the name of the person making the application; and
(b) must be accompanied by one or more affidavits setting out —
(i) the facts and other grounds on which the application is based;
(ii) the period for which it is requested that the warrant be in force and the reasons why it is considered necessary for the warrant to be in force for that period; and
(iii) particulars of any previous applications made under this Part in respect of the person or telecommunications service to which the application relates.
(5) An oral or telephone application must include —
(a) particulars of the urgent circumstances which the person making the application thinks makes it necessary to make the application orally or by telephone; and
(b) particulars of the matters that, if the application had been made in writing, would have been required to be set out in the application or in an affidavit accompanying the application.
(6) A Judge may require further information to be given in connection with an application under this section.
(7) The further information is to be given in such manner as the Judge directs.
Issue of warrants
51. (1) Where an application is made to a Judge under section 50, the Judge may, in the Judge's discretion, issue a warrant authorising the interception of a communication or authorising access to private telecommunications information, or both, if the Judge is satisfied that —
(a) section 50 has been complied with in relation to the application;
(b) in the case of an oral or telephone application - because of urgent circumstances it was necessary to make the application otherwise than in writing;
(c) in the case of an application for a warrant authorising the interception of a communication - there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the telecommunications service to which the application relates;
(d) information that would be likely to be obtained under the warrant would be likely to assist in connection with the investigation of an eligible offence in which the person or persons to whom the application relates is or are reasonably suspected of involvement; and
(e) having regard to the matters specified in subsection 51(2), the Judge should issue a warrant.
(2) The matters to which the Judge is to have regard are —
(a) how much the privacy of a person would be likely to be interfered with in consequence of the issue of a warrant;
(b) the gravity of the conduct constituting the offence or offences being investigated;
(c) how much the information referred to in paragraph 51(1)(d) would be likely to assist in connection with the investigation of the offence or offences;
(d) to what extent other methods are available of investigating the offence or offences;
(e) how much the use of such other methods would be likely to assist in connection with the investigation of the offence or offences; and;
(f) how much the use of such other methods would be likely to prejudice the investigation of the offence or offences, whether because of delay or for any other reason.
Form and content of warrant
52. (1) A warrant is to be in the prescribed form and is to be signed by the Judge who issues it.
(2) A warrant may specify conditions or restrictions relating to the execution of the warrant.
(3) A warrant must specify, as the period for which it is to be in force, a period of up to 90 days.
(4) A Judge must not vary a warrant by extending the period for which it is to be in force.
(5) Subsection 52(3) or 52(4) does not prevent the issue of a further warrant in respect of a telecommunications service or person in relation to which, or whom, a warrant has, or warrants have, previously been issued.
(6) A warrant must set out short particulars of each eligible offence in relation to which the Judge issuing the warrant was satisfied, on the application for the warrant, as mentioned in paragraph 51(1)(d).
Issue of warrant on telephone, etc application
53. (1) As soon as practicable after completing and signing a warrant issued on an oral or telephone application, a Judge must —
(a) inform the person who made the application of —
(i) the terms of the warrant; and
(ii) the day on which, and the time at which, the warrant was signed; and
(b) give the warrant to the person.
(2) A Judge who issues a warrant on an oral or telephone application must keep a copy of the warrant.
(3) A person who has made an oral or telephone application for a warrant must, within 48 hours after being informed of the matters referred to in paragraph 53(1)(a) —
(a) swear, and cause each other person (if any) who gave information to the Judge to swear, an affidavit setting out the information given by the person on the application; and
(b) give to the Judge —
(i) the affidavit or affidavits; and
(ii) unless the applicant is the officer in charge - a copy of an authorisation under paragraph 50(3)(a) that was in force in relation to the applicant when the application was made.
(4) Where a Judge who issued a warrant on an oral or telephone application is satisfied that subsection 53(3) has not been complied with in relation to the warrant, the Judge may, in writing, revoke the warrant, and must, if the Judge does so, forthwith inform the person who applied for the warrant of the revocation.
Effect of warrant
54. (1) Where —
(a) a warrant has been issued; and
(b) a member of the Police Force provides a copy of the warrant, certified in writing by the member as being a true copy, to an employee of the Administration,
the employee is authorised, subject to and in accordance with the terms of the warrant, to do an act that would otherwise contravene section 48 or 49, as the case may be, and to communicate to the member any information obtained as a result of doing that act.
(2) Where a warrant has been issued and, as a result of the application of subsection 54(1), a member of the Police Force receives information as mentioned in that subsection, the member is authorised to communicate that information in connection with the investigation of an offence committed, or suspected of having been committed, by a person in relation to whom the warrant was issued.
(3) Where, under subsection 54(1) or 54(2), an employee or member of the Police Force obtains or receives information as mentioned in those subsections, the employee or member is authorised to communicate that information in, or in connection with, proceedings for the prosecution of an offence committed or suspected of having been committed by a person in relation to whom the warrant was issued.
54A. (1) A person may take action under subsection (2) or (3) if:
(a) the person is a party to a communication passing over a telecommunications system; and
(b) as a result of information conveyed by another party to the communication (the caller) and of any other matters, the person forms the honest belief that either of the following emergencies exist:
(i) another person (whether or not the caller) is dying, is being seriously injured or has been seriously injured;
(ii) another person (whether or not the caller) is likely to die or be seriously injured; and
(c) the person does not know the location of the caller.
(2) The person may request the Norfolk Island Regional Council to intercept a communication for the purposes of tracing the location of the caller if the person is:
(a) a member of the Police Force; and
(b) of the opinion that tracing the location of the caller is likely to be of assistance in dealing with the emergency.
(3) If the person is not a member of the Police Force, the person may inform, or cause another person to inform, a member of the Police Force of the matters referred to in paragraphs (1)(a), (b) and (c).
(4) A member of the Police Force may request the Norfolk Island Regional Council to intercept a communication for the purposes of tracing the location of the caller if the member is:
(a) informed by a person under subsection (3) of the matters referred to in paragraphs (1)(a), (b) and (c); and
(b) of the opinion that tracing the location of the caller is likely to be of assistance in dealing with the emergency.
(5) If, because of a request under subsection (2) or (4), the Norfolk Island Regional Council intercepts a communication for the purpose of tracing the location of a caller, the Council must communicate the location of the caller to:
(a) the member of the Police Force who made the request; or
(b) another member of the Police Force.
(6) A member of the Police Force who makes a request under subsection (2) or (4) must, as soon as practicable after making the request, give, or cause another member of the Police Force to give, written confirmation of the request to the Norfolk Island Regional Council.
PART 8 — MISCELLANEOUS
Commencement
55. (1) This Act comes into operation on a date, or dates, fixed by the Administrator by notice published in the Gazette.
(2) The Administrator may fix different dates for the commencement of different provisions of this Act.
Continuing Offences
55A. A person who commits an offence against a provision of this Act that is —
(a) not punishable with a term of imprisonment; and
(b) is committed by the person by reason of a continuing act or omission,
is liable to the penalty otherwise applicable to the offence and, in addition —
(c) to a penalty for each day during which the act or omission continues of not more than an amount equal to one-fifth the maximum penalty prescribed for that offence; and
(d) if the act or omission continues after the person is convicted of the offence, the person is guilty of a further offence against that provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act of omission continues after that conviction of not more than an amount equal to one-fifth of the maximum penalty prescribed for that offence.
Act to bind Crown, etc
56. Subject to this Act, this Act binds —
(a) the Crown in right of Norfolk Island and the Administration; and
(b) each Territory authority.
Exclusion of liability
56A. (1) The Administration is not liable for loss resulting from —
(a) an interruption in the supply of a telecommunications service by whatever means caused; or
(b) a disconnection of a telecommunications service; or
(c) a delay in connecting or reconnecting a telecommunications service; or
(d) a failure, variation or defect in any facet of a telecommunications service; or
(e) a failure of equipment; or
(f) compliance with a direction of the Minister to disconnect, remove, or de-configure a line link or satellite dish,
and no action, suit or proceeding may be brought against the Administration in respect of such interruption, disconnection, delay, failure, variation, defect, removal, direction, or de-configuration.
(2) A person is not liable, in respect of any act done, or omitted to be done, by that person as an agent or employee of the Administration, for loss resulting from an interruption, disconnection, delay, failure, variation or , defect, removal, direction, or de-configuration referred to in paragraphs 56A(1)(a) to 56A(1)(f) and no action, suit or proceeding may be brought against the person in respect of such an interruption, disconnection, delay, failure, variation or defect.
(3) The exclusions from liability referred to in subsection 56A(1) and 56A(2) do not apply to loss resulting from an act performed, or omission made, in bad faith.
Regulations
57. (1) The Administrator may make regulations prescribing matters —
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may make provision for penalties not exceeding 10 penalty units for offences against the regulations.
Consequential amendments
58. The enactments specified in Schedule 2 are amended as set out in that Schedule.
Validity of Agreement
60. For the avoidance of doubt, the Carrier Agreement effective from 1 May 2001 and made between the Administration of Norfolk Island and Reach Global Services Limited has full force and effect in accordance with its terms.
SCHEDULE 1 Section 3
DEFINITIONS
Item
1. In this Schedule, a defined expression is shown in bold type.
2. In this Act, unless the contrary intention appears —
“affidavit” includes statutory declaration;
“area of land” means the same as in item 5;
“basic carriage service” means the same as in section 26;
“business line” means a line connected to a place of business, or where the allocated telephone number is utilised as a part of an advertisement or promotion of a business, includes, but is not limited to advertisements in the Norfolk Island telephone directory business section;
“communication” includes any communication —
(a) whether between persons and persons, things and things or persons and things;
(b) whether in the form of —
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether or not animated; or
(v) signals; or
(c) whether in any other form or any combination of forms;
“consumer”, in respect of a telecommunications service, means the person who is, under section 33, to be taken to be the consumer in respect of the service;
“Court of competent jurisdiction”, for the purposes of section 24, means the same as in subsection 24(3);
“customer cabling” means a line that —
(a) is, or is intended to be, connected to a telecommunications network; and
(b) is used, or intended for use, beyond the boundaries of any such telecommunications network;
“customer equipment” means equipment that is, or is intended to be, connected to a telecommunications network, other than equipment that is used, or intended for use, within the boundaries of such a network, and includes customer cabling;
“distinct place” means the same as in item 4;
“eligible offence” means —
(a) an offence punishable by imprisonment for life or for a period, or maximum period, of at least 7 years, where the particular conduct constituting the offence involved, involves, or would involve, as the case requires —
(i) loss of a person’s life or serious risk of loss of a person’s life;
(ii) serious personal injury or serious risk of serious personal injury;
(iii) serious damage to property in circumstances endangering the safety of a person;
(iv) trafficking in narcotic drugs;
(v) serious fraud; or
(vi) serious loss to the public revenue; or
(b) an offence constituted by —
(i) aiding, abetting, counselling or procuring the commission of;
(ii) being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of; or
(iii) conspiring to commit,
an offence that is an eligible offence by virtue of paragraph (a);
“equipment” means any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, but does not include a line;
“facility” means —
(a) in the case of a reference to a facility ancillary to a line link —
(i) a tunnel, hole, pit, duct, pipe, sheath, conduit or similar thing; or
(ii) a pole, tower, mast or similar structure,
so far as it is used, or intended for use, to contain, support or protect —
(iii) a line or lines constituting, or forming part of, the line link; or
(iv) equipment connecting 2 or more such lines; or
(b) in any other case —
(i) any part of the infrastructure of a telecommunications network;
(ii) any line, equipment, tower, mast, antenna, tunnel, hole, pit, pole or other structure or thing used, or intended for use, in or in connection with a telecommunications network; or
(iii) without limiting subparagraph (i) or (ii), a facility ancillary to a line link (as defined by paragraph (a));
“intercept”, in relation to a communication passing over a telecommunications service —
(a) means listening to or recording, by any means, such a communication in its passage over that telecommunications service without the knowledge of the person making the communication; but
(b) does not include, where a person is lawfully on premises, or in a vessel, vehicle or aircraft, to which a telecommunications service is provided by means of any apparatus or equipment that is part of that service —
(i) the person listening to or recording a communication passing over the telecommunications network of which that service forms a part, being a communication that is being made to or from that service;
(ii) the person listening to or recording a communication passing over the telecommunications network of which that service forms a part, being a communication that is being received at that service in the ordinary course of the operation of that telecommunications network; or
(iii) the person listening to or recording a communication passing over the telecommunications network of which that service forms a part as a result of a technical defect in that network or the mistake of an employee of the Administration;
“Judge” means a judge of the Supreme Court, and includes an acting Judge.
“line” means a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or intended for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy;
“line link” means —
(a) a line;
(b) a line that is connected to one or more other lines, together with those other lines, if each of the lines are connected to another of the lines in such a way that a communication can be carried, by means of the lines, in the same way as if the lines were a single line; or
(c) lines that are connected to the same facility (not being a line) in such a way that a communication can be carried, by means of facilities including the lines, in the same way as if the lines were a single line;
“officer in charge” in charge means the police officer in charge of the Police Force.
“owner”, in relation to land, means —
(a) if the land is subject to a mortgage and the mortgagee is in possession of the land - the mortgagee;
(b) if the land is subject to a mortgage and the mortgagee is not in possession of the land - the person who has the equity of redemption;
(c) if the land is held under lease from the Crown - the lessee;
(d) if the land is subject to a lease (other than from the Crown) for a term of more than 5 years - the lessee; or
(e) in any other case - the person or persons in whom is vested the fee simple of the land;
“PABX” means equipment of the type known as a private automatic branch exchange;
“Police Force” means the same as in the Police Act 1931;
“private telecommunications information” means the same as in subsection 49(2);
“public mobile telecommunications service” means a telecommunications service —
(a) that is offered to the public generally;
(b) that can be used by a person while the person is moving continuously between places;
(c) where customer equipment used for or in relation to the supply of the service is not in physical contact with any part of the telecommunications network by means of which the service is supplied; and
(d) where a facility that is used for or in relation to supplying the service is connected to a telecommunications network;
“radiocommunication” means the same as in the Radiocommunications Act 1983 of the Commonwealth;
“reserved line link” means —
(a) a line link between distinct places within Norfolk Island; or
(b) a line link between a place within Norfolk Island and a place outside Norfolk Island,
but does not, where the whole of a line link would otherwise constitute a reserved line link, include so much of the line link as is beyond the boundary of the Administration's telecommunications network;
“service”, in relation to telecommunications, means a telecommunications service;
“subdivider” means a person who has applied, under the Land (Sub-division) Act 1967, for approval of a subdivision;
“subdivision” means the same as in the Land (Sub-division) Act 1967;
“telecommunications carriage” means the carriage of communications over a telecommunications network;
“telecommunications network” means a system, or series of systems, for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a system, or series of systems, for carrying communications solely by means of radiocommunication;
“telecommunications service” means a service for carrying communications by means of guided or unguided electromagnetic energy or both, but does not include a service for carrying communications solely by means of radiocommunication;
“warrant” means a warrant issued under section 51.
4. If a place is not within the same area of land as another place, the places are, for the purposes of this Act, distinct places.
5. For the purposes of item 4, “area of land” means —
(a) an area —
(i) in respect of which there is a single freehold or leasehold title; and
(ii) no part of which is subject to a lease granted by the holder of that title;
(b) an area together with a contiguous area, where —
(i) each area is an area in respect of which there is a single freehold or leasehold title; and
(ii) the same person is the holder of each title; or
(c) an area that is part of an area in respect of which there is a single freehold or leasehold title, being a part that is not subject to a lease granted by the holder of that title.
SCHEDULE 2 Section 58
CONSEQUENTIAL AMENDMENTS
Post and Telegraph Act 1957
Item
. . . .
Television Reception Dishes Act 1986
6 Section 2:
Omit from subsection 2(2) “Post and Telegraph Act 1957”, substitute “Telecommunications Act 1992”.
NOTES
The Telecommunications Act 1992 as shown in this consolidation comprises Act No. 12 of 1992 and amendments as indicated in the Tables below.
| Enactment | Number and year | Date of commencement | Application saving or transitional provision |
| Telecommunications Act 1992 | 12, 1992 | 24.6.93 | 59 |
| | | | |
| Postal Services (Consequential Amendments) Act 1994 | 20, 1994 | 29.9.94 | |
| | | | |
| Telecommunications Amendment Act 1996 | 18, 1996 | 20.8.96 | |
| | | | |
| Telecommunications Amendment Act 1998 | 10, 1998 | 18.6.98 | |
| | | | |
| Telecommunications Amendment Act 1999 | 26, 1999 | 30.12.99 | |
| | | | |
| Telecommunications Amendment Act 2003 | 14, 2003 | 1.8.03 | |
| | | | |
| Telecommunications (Amendment No. 2) Act 2004 | 16, 2004 | 24.3.05 | |
| | | | |
| [Previously consolidated as at 11 April 2006] |
| | | | |
| Telecommunications (Amendment) Act 2006 | 16, 2006 | 30.6.06 | |
| | | | |
| [Previously consolidated as at 24 November 2006] |
| | | | |
| Interpretation (Amendment) Act 2012 [to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member] | 14, 2012 | 28.12.12 | |
| |
| [Previously consolidated as at 24 September 2013] |
| |
| Ordinance | Registration | Commencement | Application, saving and transitional provisions |
| Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)
(now cited as Norfolk Island Continued Laws Ordinance 2015 (see F2015L01491)) | 17 June 2015 (F2015L00835) | Sch 1 (items 337–341, 344, 345): 18 June 2015 (s 2(1) item 1) | Sch 1 (items 344, 345, 382–396) |
| as amended by | | | |
| Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016
(No. 5, 2016) | 10 May 2016 (F2016L00751) | Sch 4 (item 50–53): 1 July 2016 (s 2(1) item 4) | — |
| Norfolk Island Continued Laws Amendment (Statutory Appointments and Other Matters) Ordinance 2018 | 28 Sept 2018 (F2018L01378) | Sch 1 (items 55, 56): 29 Sept 2018 (s 2(1) item 1) | — |
| Norfolk Island Legislation Amendment (Criminal Justice Measures) Ordinance 2019 | 5 Apr 2019 (F2019L00546) | Sch 1 (items 5–7): 6 Apr 2019 (s 2(1) item 1) | — |
| Norfolk Island Legislation Amendment (Fees and Other Matters) Ordinance 2019 | 12 Aug 2019 (F2019L01048) | Sch 1 (items 87–94): 13 Aug 2019 (s 2(1) item 1) | — |
Table of Amendments
| ad = added or inserted | | rep = repealed | rs = repealed and substituted | |
| Provision affected | How affected | |
| 2 | am | Ord No 2, 2015 (as am by Ord No 5, 2016 and F2019L01048) |
| 3 | am | 14, 2003; Ord No 2, 2015 (as am by Ord No 5, 2016, F2019L00546 and F2019L01048) |
| 4 | am | 16, 2004 |
| Part 2 heading | rs | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 5 | am | 16, 2004; Ord No 2, 2015 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 6 | am | 10, 1998 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 6A | ad | 16, 2004 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 6B | ad | 16, 2004 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 7 | am | 10, 1998 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 8 | am | 10, 1998 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 9 | am | 10, 1998 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 10 | am | 10, 1998 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 11 | am | 10, 1998; 16, 2004 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 13 | am | 16, 2004 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 14 | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 15 | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 16 | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 23 | am | Ord No 2, 2015 (as am by F2018L01378) |
| 26 | am | 16, 2004 |
| 28 | am | Ord No 2, 2015 (as am by F2018L01378) |
| | rs | Ord No 2, 2015 (as am by F2019L01048) |
| 29 | rep | 16, 2006 |
| 30 | am | Ord No 2, 2015 (as am by F2018L01378) |
| | rep | Ord No 2, 2015 (as am by F2019L01048) |
| 31 | rs | 18, 1996 |
| 32 | rep | Ord No 2, 2015 (as am by F2019L01048) |
| 33 | am | Ord No 2, 2015 (as am by F2018L01378 and F2019L01048) |
| 34 | am | Ord No 2, 2015 (as am by F2019L01048) |
| 39 | am | 18, 1996 |
| 42 | am | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 43 | am | Ord No 2, 2015 (as am by F2019L01048) |
| 44 | am | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 45 | am | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 48 | am | Ord No 2, 2015 (as am by F2019L00546) |
| 49 | am | Ord No 2, 2015 (as am by F2019L01048) |
| 50 | am | Ord No 2, 2015 (as am by F2019L00546) |
| 53 | am | Ord No 2, 2015 (as am by F2019L00546) |
| 54A | ad | Ord No 2, 2015 (as am by F2019L00546) |
| 55A | ad | 10, 1998 |
| 55B | ad | 10, 1998 |
| | rep | Ord No 2, 2015 (as am by Ord No 5, 2016) |
| 56A | ad | 26, 1999 |
| | am | 16, 2004 |
| 59 | rep | Ord No 2, 2015 (as am by F2019L01048) |
| 60 | ad | 16, 2004 |
| Schedule 1 | am | 14, 2003; Ord No 2, 2015 (as am by Ord No 5, 2016, F2019L00546 and F2019L01048) |
| Schedule 2 | am | 20, 1994 |
| | | | | |