EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications Advisory Guidelines (Use of Electronic Counter Measures for Bomb Disposal Activities) 2010
Radiocommunications Act 1992
Purpose
The purpose of the Radiocommunications Advisory Guidelines (Use of Electronic Counter Measures for Bomb Disposal Activities) 2010 (the Advisory Guidelines) is to:
- inform specified persons seeking to rely on the Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010 (the Determination), of the parameters within which acts or omissions relating to electronic counter measures (ECM) devices in bomb disposal activities will be regarded as exempt;
- expand upon the appropriate procedures and protocols in relation to the possession, operation or supply of ECM devices; and
- provide guidance on forward planning for effective and efficient radiocommunications interference management, mitigation, and notification of critical radiocommunications spectrum users.
In accordance with paragraph 4(2)(b) of the Determination, the Advisory Guidelines must be read in conjunction with the Determination.
The Advisory Guidelines are also intended to complement the procedures of law enforcement agencies for the use and handling of ECM devices with particular reference to radiocommunications matters.
Legislative Provisions
Subsection 27(2) of the Radiocommunications Act 1992 (the Act), allows the Australian Communications and Media Authority (the ACMA), to determine that certain acts or omissions by members of a class of persons are exempt from any, or all of, Parts 3.1, 4.1 and 4.2 of the Act, or from specified provisions of those Parts. The Determination exempts specified persons from all of Parts 3.1, 4.1 and 4.2 of the Act in relation to the possession, supply and operation of ECM devices for specified circumstances related to bomb disposal.
Section 262 of the Act allows the ACMA to make written advisory guidelines about any aspect of radiocommunication or radio emissions, including interference with radiocommunications. The Advisory Guidelines are made under that section.
Paragraph 314A(2)(b) of the Act provides that an instrument made under the Act may make provision in relation to a matter by applying matter contained in any other instrument or writing as in force from time to time. The Advisory Guidelines, as in force from time to time, must be read in conjunction with the Determination.
Advisory guidelines made under made under subsection 262 of the Act are a disallowable instrument for the purposes of the Legislative Instruments Act 2003 (the LIA).
Background
In recent years, a number of terrorist incidents worldwide have involved the remote detonation of bombs. Law enforcement agencies view ECM as useful tools to counteract this threat and protect bomb disposal personnel from harm. ECM devices are difficult to license as they are:
- designed to cause interference; and therefore
- have a high interference potential; and
- they are non-standard devices.
In addition, mobile phone jammers, which form a sub category of ECM devices, are prohibited by the Notification that the Australian Communications and Media Authority prohibits the operation or supply, or possession for the purpose of operation or supply, of specified devices (a declaration made under section 190 of the Act).
The Advisory Guidelines were developed in tandem with the Determination to provide guidance to police forces seeking to use ECM devices in both emergency and non-emergency circumstances. In making the Determination and the Advisory Guidelines, the ACMA balanced the requirement to protect licensed radiocommunications services from interference with that of ensuring public safety by preventing the illegal use of radiocommunications to cause damage to property and endanger life.
Operation
The Advisory Guidelines promote the objectives that where a person intends to rely on the Determination, the person must ensure that:
- exempted acts or omissions do not result in unnecessary or inadvertent interference to other radiocommunications spectrum users;
- critical radiocommunications spectrum users are appropriately notified; and
- ECM devices are transported and stored in a secure manner.
The sections in the Advisory Guidelines are:
Definitions
This section defines nine terms used in the Advisory Guidelines. It also specifies that a term used in the Advisory Guidelines which has been defined in the Determination, has the same meaning when used in the Advisory Guidelines.
Legislative Framework
This section provides the legislative background to the Advisory Guidelines. It identifies the parts of the Act to which the use of radiocommunications devices are subject, and the provisions in the Act which enable the ACMA to exempt specified persons from those parts.
Purpose
This section sets out the ACMA’s objectives in developing the Advisory Guidelines The section also provides guidance on the scope and operation of the Advisory Guidelines and their intended operation in conjunction with the ‘approved ECM procedures’ of police forces.
Guidelines
This section sets out the three matters ACMA will take into account when considering whether an act or omission is exempt under the Determination.
Guidelines for handling ECM devices
This section provides guidance to specified persons, and persons acting on their behalf, seeking to rely on subsection 6(1) of the Determination. Section 6 of the Determination deals with the importation, possession, supply and transportation of ECM devices.
Guidelines for operation of ECM devices
This section provides guidance to specified persons seeking to rely on subsections 4(1) or 5(1) of the Determination.
Section 4 of the Determination specifies the circumstances under which an ECM operator or a third party acting on their behalf will be exempt from Parts 3.1, 4.1 and 4.2 of the Act. The specified circumstances are:
- when the act or omission is done in relation to a bomb disposal emergency;
- during maintenance of an ECM device;
- during training and evaluation; or
- during research and development.
Section 5 specifies the circumstances under which a trainee ECM operator will be exempt from Parts 3.1, 4.1 and 4.2 of the Act. Those circumstances are during training and evaluation.
Guidelines relating to mitigation of potential interference and notification
This section explains that fundamental to reliance on the Determination by specified persons is the understanding that those persons must act responsibly and with due diligence towards other radiocommunications spectrum users.
The section provides guidance on;
- when and how specified persons should notify the ACMA about the operation of an ECM device;
- mitigation of potential interference (to other radiocommunications spectrum users) relating to the proposed operation of an ECM device; and
- where the interference potential cannot be completely mitigated, when and how specified persons should notify potentially affected critical radiocommunications spectrum users about the operation of the ECM device.
Appendix 1: Table 1 - Reference guide for ECM operation
The table provides a quick reference guide for specified persons, on the notification requirements in the four circumstances set out in section 4 of the Determination. The four circumstances are:
- the research and development circumstance;
- the maintenance circumstance;
- training and evaluation circumstance; and
- a bomb disposal emergency.
Appendix 2: Further information to assist specified persons
This appendix offers specified persons seeking to rely on section 11 of the Determination, a ‘suggested approach’ on how to comply with the requirements of that section. The suggested approach is a three phase process of analysis, mitigation and notification, when there is a proposal to use, or the use of an ECM device in a non-emergency or emergency circumstance.
Consultation
In accordance with section 17 of the LIA, the ACMA conducted limited formal consultation with the Communications Security and Enforcement Roundtable (CSER) Working Group and selected critical infrastructure spectrum users (as identified via the Trusted Information Sharing Network for Critical Infrastructure Protection). The period of consultation began on 13 November 2009 and ended on 18 December 2009. The ACMA formed the view that wider consultation with the general public was not appropriate, having regard to the circumstances in which ECM devices will be used.
The ACMA received ten submissions following the consultation process. All of the submissions supported the making of the Determination and the associated Advisory Guidelines. Some submissions offered suggestions on how the Determination might be amended to provide greater certainty in some areas, or asked questions to clarify the interplay between the Determination and the Advisory Guidelines. Where appropriate these suggestions were incorporated into the Determination and Advisory Guidelines.
Regulation Impact
ACMA obtained advice from its SES contact officer for the Government’s regulation impact analysis arrangements that the Advisory Guidelines have no or low impact. For those reasons under the self-assessment regime administered by the Office of Best Practice Regulation, ACMA has determined that there is no need to produce a Business Cost Calculator report or to prepare a Regulation Impact Statement. The ACMA RIS exemption reference number is ACMA 090.
Attachment
Further details about the Advisory Guidelines are in the Attachment.
ATTACHMENT
NOTES ON SECTIONS
Definitions
This section defines terms used in the Advisory Guidelines.
Legislative Framework
This section provides the legislative background against which the Advisory Guidelines are made.
Purpose
This section sets out the ACMA’s objectives in developing the Advisory Guidelines and the guidance they provide to specified persons seeking to rely on the Determination.
Guidelines
This section sets out the matters the ACMA will take into account when considering whether an act or omission is exempt under the Determination.
Guidelines for handling ECM devices
This section provides guidance on the handling of ECM devices by ECM operators, including possession, transfer of ownership and sale of ECM devices.
Guidelines for operation of ECM devices
This section provides guidance on the operation of ECM devices for the purposes of maintenance, training and development and research and development circumstances. The section also covers operation of an ECM device during a bomb disposal emergency.
Guidelines relating to mitigation of potential interference and notification
This section sets out the ACMA’s suggested approach by specified persons to analysis, mitigation and notification when specified persons are seeking to rely on section 11 of the Determination.
Appendix 1: Table 1 - Reference guide for ECM operation
The table provides further information on notification requirements in four circumstances; research and development, maintenance, training and evaluation and a bomb disposal emergency.
Appendix 2: Further information to assist specified persons
The appendix offers specified persons seeking to rely on section 11 of the Determination, a ‘suggested approach’ on how to comply with the requirements of that section.