EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Protected Symbols Determination 2013
Purpose
The purpose of the Protected Symbols Determination 2013 (the Determination) is to set out the designs of specified protected symbols and the purposes for which those symbols may be used or applied.
Legislative provisions
Section 188A of the Radiocommunications Act 1992 (Radiocommunications Act) and section 417 of the Telecommunications Act 1997 (Telecommunications Act) prohibit the use and application of “protected symbols” by persons otherwise than for certain specified purposes.
Those sections also empower the Australian Communications and Media Authority (the ACMA) to make written determinations:
- setting out the designs of specified protected symbols; and
- the purposes for which such symbols may be used.
A determination made under section 188A of the Radiocommunications Act and section 417 of the Telecommunications Act is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Background
The ACMA has responsibility for the regulation of specified devices, customer equipment and customer cabling under the Radiocommunications Act and the Telecommunications Act. These regulatory regimes cover aspects of equipment related to the radiocommunications, electromagnetic energy (EME), electromagnetic compatibility (EMC) and telecommunications functions of the equipment.
Suppliers of certain equipment must comply with technical standards, maintain records and apply a label, consisting of a compliance mark, to that equipment. These requirements are imposed by the following four Labelling Notices made by the ACMA:
- the Radiocommunications Labelling (Electromagnetic Compatibility) Notice 2008 (EMC Labelling Notice);
- the Radiocommunications Devices (Compliance Labelling) Notice 2003 (Radiocommunications Labelling Notice);
- the Radiocommunications (Compliance Labelling – Electromagnetic Radiation) Notice 2003 (EME Labelling Notice); and
- the Telecommunications Labelling (Customer Equipment and Customer Cabling) Notice 2001 (Telecommunications Labelling Notice),
(together, the ACMA Labelling Notices).
The EMC Labelling Notice manages the risk of interference to radiocommunications services and to the performance of electrical products by imposing requirements on suppliers of devices that are capable of incidental emissions. The Radiocommunications Labelling Notice manages the risk of interference to radiocommunications services by imposing requirements on suppliers of radiocommunications devices. The EME Labelling Notice protects the health and safety of people who operate, work on, use, or are likely to be affected by the operation of such devices by imposing requirements on suppliers of devices that are capable of producing EME. The Telecommunications Labelling Notice imposes requirements on suppliers of customer equipment and customer cabling to manage issues including protecting the health and safety of users of the telecommunications network, protecting the integrity and interoperability of the telecommunications network and ensuring access to emergency call services.
The ACMA Labelling Notices require suppliers to, amongst other things, apply a compliance label to the surface of specified equipment to illustrate that the equipment complies with the technical requirements set out in the relevant Labelling Notice.
Affixing a compliance label on equipment is a prima facie demonstration of compliance with applicable standards. Compliance labels also provide retailers with assurance that the equipment labelled with the mark is suitable for market placement. By imposing requirements on suppliers (manufacturers and importers and their agents), labelling requirements are intended to limit the supply of non-compliant equipment to the market.
There are currently three compliance marks that can be applied to compliance labels to indicate compliance with the ACMA labelling arrangements:
- the A-Tick mark, used for telecommunications customer equipment and customer cabling;
- the C-Tick mark, used for radiocommunications emissions, EMC and EME; and
- the RCM, used for radiocommunications, EMC and EME.
The rules about using these marks to indicate compliance with applicable technical standards and associated requirements are set out in the ACMA Labelling Notices.
The RCM is also used to indicate compliance with electrical equipment safety requirements under Australian State and Territory legislation.
The existence of separate compliance labels reflects the historical distinction between different sectors of the communications and IT industry. As these previously discrete industries converge, single items of equipment are increasingly subject to overlapping technical regulatory requirements. Consequently, equipment that has historically been of narrow regulatory interest may now be subject to multiple regulatory arrangements, including different labelling arrangements.
The existence of multiple (and mandatory) regulatory labels, which apply in respect of particular technical requirements, is inconsistent with the evolution of the communications and IT technical and commercial environment. It also increases regulatory and compliance costs for industry.
The ACMA Labelling Notices have been amended to specify the RCM as the regulatory compliance mark to be applied to compliance labels to illustrate compliance with applicable regulatory requirements.
The implementation of a consolidated regulatory compliance label will lessen industry administrative burdens by reducing the complexity of regulatory arrangements and consequently the time required by industry to comprehend and abide by those arrangements. Less complex labelling arrangements also increase the likelihood of compliance and therefore improve regulatory outcomes.
Operation
The Determination revokes the Radiocommunications (C-Tick Mark) Determination 1998 and the Telecommunications (A-Tick Mark) Determination 2000 and establishes the status of the RCM, C-Tick mark and A-Tick mark as “protected symbols” in a single instrument.
The Determination includes a schedule that specifies the permissible purposes for use or application of a protected symbol.
The Determination also sets out the designs for the RCM, C-Tick mark and A-Tick mark protected symbols.
Consultation
On 26 June 2011, a draft version of the Determination was released for public consultation together with a consultation paper, ‘Consolidated compliance mark - Proposed implementation arrangements’ (consultation paper). The consultation paper also outlined proposals to amend the ACMA Labelling Notices and attached draft amending instruments for comment. The release of the consultation paper and instruments followed an earlier 7 week consultation relating to the proposal to implement a consolidated compliance mark for equipment.
The consultation paper and draft instruments were available to the general public on the ACMA website, publicised through an email subscription alert and sent via email to relevant stakeholders. The consultation ran for a period of 7 weeks. An ACMA stakeholder committee, the Technical Working Group (TWG) also met during the public consultation period to discuss the proposal.
The ACMA received 27 responses in response to the consultation paper and draft instruments. The public consultation showed broad support from suppliers, industry groups and consultants for the consolidation of compliance marks. No comments were received on the Determination.
Regulation impact
On the basis of the information provided in a Preliminary Assessment, the Office of Best Practice Regulation considers that the Determination will have minor impacts. Therefore no further analysis (in the form of a Regulation Impact Statement (RIS)) is required. The ACMA RIS exemption number is 12655.
Detailed Description of the Instrument
Further details of the Determination are set out in Attachment A.
Statement of compatibility with human rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislative Instruments Act 2003 applies to cause a statement of compatibility to be prepared in respect of that legislative instrument. This statement is Attachment B.
Attachment A
NOTES ON SECTIONS
Part 1 Preliminary
Section 1 Name of Determination
Section 1 provides that the name of the Determination is the Protected Symbols Determination 2013.
Section 2 Commencement
Section 2 provides that the Determination commences on 1 March 2013.
Section 3 Revocation
Section 3 revokes the Radiocommunications (C-Tick Mark) Determination 1998 and the Telecommunications (A-Tick Mark) Determination 2000.
Section 4 Definitions
Section 4 defines terms used throughout the Determination. Of note, “equipment” is defined to refer to both specified customer equipment and customer cabling under the Telecommunications Act as well as radiocommunications devices under the Radiocommunications Act. Some terms and expressions used in the Determination are also defined in the Telecommunications Act and the Radiocommunications Act. Those terms and expressions are listed in a note to section 4.
Part 2 Purposes for which a protected symbol may be used or applied
Section 5 Specified purposes for use or application of protected symbols
Subsection 188A(7) of the Radiocommunications Act and subsection 417(7) of the Telecommunications Act provide that the prohibitions on the use of a protected symbol do not apply if the symbol is used or applied for a purpose specified in a written determination made by the ACMA.
Subsection 5(1) provides that, subject to subsection 5(2), the purposes in Schedule 1 are specified for subsection 188A(7) of the Radiocommunications Act and subsection 417(7) of the Telecommunications Act.
Subsection 5(2) provides that a purpose mentioned in Schedule 1 is not specified for subsection 188A(7) of the Radiocommunications Act and subsection 417(7) of the Telecommunications Act in relation to a protected symbol if:
- the purpose refers to an applicable standard; and
- the protected symbol cannot be used to label equipment to which the applicable standard applies in accordance with a notice made under section 182 of the Radiocommunications Act or a notice made under section 407 of the Telecommunications Act, as the case may be.
Subsection 5(2) has the effect that where one of the purposes specified in Schedule 1 to the Determination refers to an applicable standard, a supplier can only use a protected symbol for that purpose if the protected symbol may also be used to label equipment to which the applicable standard applies. Items 1, 2, 3, 5, 6, 8, 9 and 10 of Schedule 1 refer to an applicable standard.
Part 3 Design of protected symbols
Section 6 Protected symbol – Radiocommunications Act
Subsections 6(1) and (2) provide that, for subparagraph 188A(8)(b)(i) and subparagraph 188A(8)(a)(i) of the Radiocommunications Act, the designs of the RCM and the C-Tick mark, respectively, are set out in Schedule 2.
Section 7 Protected symbol – Telecommunications Act
Subsections 7(1) and (2) provide that, for subparagraph 417(8)(b)(i) of the Telecommunications Act, the designs of the RCM and the A-Tick mark are set out in Schedule 2.
Part 4 Transitional arrangements
Section 8 Application of C-Tick mark – compliance with certain specifications
Section 8 is a transitional provision which deals with the application of the C-Tick mark for the purpose mentioned in paragraph 5(b) of the Radiocommunications (C-Tick Mark) Determination 1998 (which was revoked by the Determination). That provision had the effect that a permissible purpose for use or application of the C-Tick mark was to show that a device complies with relevant equipment compliance requirement (ECR) specifications listed in Schedule 1 to the Radiocommunications (C-Tick Mark) Determination 1998.
Subsection 8(1) provides that section 8 applies if, before the commencement of the Determination, a person (a specified person) used or applied the C-Tick mark for the purpose mentioned in paragraph 5(b) of the Radiocommunications (C-Tick Mark) Determination 1998.
Subsection 8(2) provides that from the commencement of the Determination, the purpose mentioned in paragraph 5(b) of the Radiocommunications (C-Tick Mark) Determination 1998 is a specified purpose for subsection 188A(7) of the Radiocommunications Act in relation to a specified person.
Section 8 has the effect that a person who used or applied the C-Tick mark before the commencement of the Determination to indicate that a device complies with the ECR specifications listed in Schedule 1 of the Radiocommunications (C-Tick Mark) Determination 1998 may continue to use or apply that mark for that purpose after the commencement of the Determination. This transitional provision will protect suppliers who have applied the C-Tick mark to show compliance with the ECR specifications listed in Schedule 1 of the Radiocommunications (C-Tick Mark) Determination 1998.
Schedule 1 Purposes for using or applying a protected symbol
Schedule 1 sets out the permissible purposes for which a protected symbol may be used or applied.
Item 1 provides that a permissible purpose is to show that equipment complies with an applicable standard other than by use or application of the protected symbol for a purpose referred to in subsection 188A(6) of the Radiocommunications Act or subsection 417(6) of the Telecommunications Act. Subsection 188A(6) of the Radiocommunications Act and subsection 417(6) of the Telecommunications Act are referred to in item 1 because they have the effect, respectively, that the prohibitions on use or application of a protected symbol in section 188A of the Radiocommunications Act and section 417 of the Telecommunications Act do not apply where a supplier is required to label an instrument in accordance with a notice made under section 182 of the Radiocommunications Act or section 407 of the Telecommunications Act.
Item 2 provides that a permissible purpose is to show that a person provides services to assist others to comply with an applicable standard relating to equipment. This would extend to the use of a protected symbol in a person’s advertising material.
Item 3 provides that a permissible purpose is use of a protected symbol in relation to information or comment about applicable standards.
Item 4 provides that a permissible purpose is to show that a body recognised by the ACMA as an accreditation body (defined by subsection 409(1) of the Telecommunications Act and by subsection 183(1) of the Radiocommunications Act) is such a body and that the body may determine that specified persons are recognised testing authorities or competent bodies.
Item 5 provides that a permissible purpose is to show that a body recognised as a testing authority (defined by subsection 409(2) of the Telecommunications Act and by subsection 183(2) of the Radiocommunications Act) is such a body and that the body may test equipment for compliance with applicable standards.
Item 6 provides that a permissible purpose is to show that a body recognised as a competent body (defined by subsection 409(3) of the Telecommunications Act and by subsection 183(3) of the Radiocommunications Act) is such a body and that the body may provide services in relation to labelling requirements and in relation to showing compliance with applicable standards.
Item 7 provides that a permissible purpose is to supply copies of a protected symbol to persons entitled to use or apply the protected symbol.
Item 8 provides that a permissible purpose is to show that a body supplies copies of a protected symbol to persons entitled to use or apply the protected symbol and to show that the body supplies copies of applicable standards.
Item 9 provides that a permissible purpose is to show that a wholesaler or retailer trades in devices or items that meet applicable standards.
Item 10 provides that a permissible purpose is to publicise that equipment complies with applicable standards.
Item 11 provides that a permissible purpose is the use of a protected symbol in compliance with a law of a State or Territory that relates to electrical safety. In practice, a supplier will only be able to use the RCM for this purpose, because State and Territory electrical equipment safety legislation does not allow for labelling of electrical products with the C-Tick mark or A-Tick mark to demonstrate compliance with State or Territory electrical safety requirements.
The Determination does not affect New Zealand use of the RCM. Section 16 of the Radiocommunications Act limits the operation of the legislation (and subordinate instruments) to Australia (subject to certain exceptions that do not apply in this instance).
Schedule 2 Protected symbols
Part 1 sets out the design of the RCM.
Part 2 sets out the design of the C-Tick mark.
Part 3 sets out the design of the A-Tick mark.
Attachment B