EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2016
Radiocommunications Act 1992
Purpose
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2016 (the Determination).
The Determination exempts certain acts and omissions of the Australian Federal Police (AFP), and other persons, from the operation of Parts 3.1, 4.1 and 4.2 of the Radiocommunications Act 1992 (the Act). The exemption only operates in particular circumstances and for a particular time, related to the visit to Australia by the Vice President of the United States of America.
Legislative Provisions
Under subsection 27(2) of the Act, the ACMA may determine that acts or omissions of members of a class of persons performing a function or duty in relation to the AFP, the police force of a State or Territory, or the defence, security or international relations of Australia, are exempt from certain provisions of the Act.
The Determination is a legislative instrument and may be subject to disallowance in accordance with section 42 of the Legislation Act 2003 (Legislation Act).
Background
Under the Act, radiocommunications devices must not be operated unless authorised by a licence (section 46). Further, the operation and possession of specified radiocommunications devices may be prohibited under section 189 of the Act if the ACMA makes a declaration in relation to those devices under section 190. The ACMA has declared the operation and possession of particular devices, known as public mobile telecommunication service (PMTS) jamming devices, to be prohibited (Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011).
Where the ACMA has declared a device to be prohibited under section 190 of the Act, the Customs (Prohibited Imports) Regulations 1956 (the Regulations) provide that the importation into Australia of such a device is prohibited, unless the conditions, restrictions or requirements specified for that device are met (subregulation 4(2)). Relevantly, the Regulations specify as a condition that the device, to be imported, must only be imported by a person whose acts or omissions relating to the device are exempt from section 189 of the Act, under a determination made under subsection 27(2) of the Act (item 11 of Schedule 3 to the Regulations).
The Vice President of the United States of America is scheduled to visit Australia in July 2016. The Determination is necessary to provide an exemption that will facilitate security measures associated with that visit.
Operation
The Determination exempts the acts and omissions of the following classes of people (relevant persons) from the operation of Parts 3.1, 4.1 and 4.2 of the Act, including section 189, in specified circumstances:
- AFP employees;
- special members of the AFP, appointed under the Australian Federal Police Act 1979;
- any other person performing a function or duty in relation to the AFP, or the police force of a State or Territory;
- any other person performing a function or duty in relation to the defence, security or international relations of Australia.
In order to be exempt, the acts and omissions of relevant persons must be done, or occur:
- in the performance of the person’s functions and duties in relation to the AFP, police force, or defence, security or international relations of Australia;
- in relation to the implementation of electronic counter measures, including the use of an electronic counter measure vehicle (or more than one such vehicle), associated with the security or protection of the Vice President of the United States of America, during his visit to Australia; and
- during the period commencing on 13 July 2016 and ending on 21 July 2016.
Consultation
Subsection 17(1) of the Legislation Act requires that, before the ACMA makes a legislative instrument, it must be satisfied that there has been undertaken any consultation that is considered by the ACMA to be appropriate, and is reasonably practicable to undertake.
The ACMA was contacted by the AFP on 11 July 2016 regarding the prospect that the AFP would be involved in the importation of one or more electronic counter measure vehicles associated with the visit of the Vice President of the United States of America. The ACMA engaged in communications with both the AFP and the Department of Immigration and Border Protection between 11 and 13 July 2016.
The ACMA considered that this consultation was appropriate in the circumstances, and that it was not reasonably practicable to undertake additional consultation.
Regulatory Impact
The Office of Best Practice Regulation has advised that the impact of the Determination is deemed to be minor, and so no Regulation Impact Statement is required in relation to the making of the Determination.
Detailed Description of the Determination
Details of the Determination are set out in Attachment A.
Documents Incorporated in the Determination by Reference
The Determination incorporates by reference the following legislation, as in force from time to time:
> Radiocommunications Act 1992
> Australian Federal Police Act 1979
The Acts mentioned above can be found on the Australian Government’s Federal Register of Legislation (http://www.legislation.gov.au/).
Statement of Compatibility with Human Rights
As required by subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011, a Statement of Compatibility with Human Rights has been prepared by the ACMA and is at Attachment B.
ATTACHMENT A
DETAILS OF THE RADIOCOMMUNICATIONS (AUSTRALIAN FEDERAL POLICE – VISITING DIGNITARY) EXEMPTION DETERMINATION 2016
Section 1 – Name of Determination
Section 1 provides that the Determination is the Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2016.
Section 2 – Commencement
Section 2 provides that the Determination commences the day it is registered on the Federal Register of Legislation. (That day was 13 July 2016.)
Section 3 – Cessation
Section 3 provides that the Determination expires on 31 July 2016, as if it had been repealed by another instrument.
Section 4 – Definitions
Section 4 defines the terms used in the Determination.
Section 5 – Exemption in relation to certain activities in relation to visiting dignitary
Section 5 exempts the acts and omissions of certain classes of people from the operation of Part 3.1, 4.1 and 4.2 of the Act, if those acts or omissions occur in particular circumstances.
The classes of people are:
- AFP employees;
- special members of the AFP, appointed under the Australian Federal Police Act 1979;
- any other person performing a function or duty in relation to the AFP, or the police force of a State or Territory;
- any other person performing a function or duty in relation to the defence, security or international relations of Australia.
In order to be exempt, the acts and omissions of relevant persons must be done, or occur:
- in the performance of the person’s functions and duties in relation to the AFP, police force, or defence, security or international relations of Australia;
- in relation to the implementation of electronic counter measures, including the use of an electronic counter measure vehicle associated with the security or protection of the Vice President of the United States of America, during his visit to Australia; and
- during the period commencing on 13 July 2016 and ending on 21 July 2016.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2016
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2016 (the Determination) exempts the acts and omissions of Australian Federal Police (AFP) employees, special members of the AFP, and other related persons from the operation of Parts 3.1, 4.1 and 4.2 of the Radiocommunications Act 1992 (Act), for the purposes of dealing with radiocommunications devices associated with the protection and security of the Vice President of the United States of America, during his visit to Australia in July 2016.
Human Rights Implications
The Determination does not engage any of the applicable rights or freedoms.
Conclusion
The Determination is compatible with human rights as it does not raise any human rights issues.