EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2017
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2017 (the instrument) under subsection 27(2) of the Radiocommunications Act 1992 (the Act).
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.
Purpose and operation of the instrument
The instrument 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 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.
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 (see the 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 April 2017. The instrument is necessary to provide an exemption that will facilitate security measures associated with that visit.
The instrument 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; and
- 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 the day after registration of the instrument and ending on 24 April 2017.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The instrument 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 Federal Register of Legislation (http://www.legislation.gov.au/).
Consultation
Before the instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.
The ACMA liased with the AFP on 15 March 2017 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. On 21 March 2017 the AFP notified the ACMA that an exemption determination under subsection 27(2) of the Act would be required in order to facilitate the importation and operation of one or more vehicles equipped with electronic counter measure devices.
On 29 March 2017, the ACMA advised mobile carriers Telstra, Optus, Vodafone (the Carriers), NBN Co and the Australian Mobile Telecommunications Association (AMTA) that it proposed, at the request of the AFP, to make an instrument exempting the operation of certain devices associated with the security or protection of the Vice President of the United States during his visit to Australia. The Carriers, NBN Co and AMTA were invited to comment on the proposal by 4 April 2017. This targeted consultation was deemed appropriate given sensitivities surrounding security concerns for the visiting dignitary. Responses were received from the Carriers and AMTA indicating they did not have any comments in relation to the proposed instrument. NBN Co indicated that it is unlikely to be impacted by the operation of the electronic counter measures vehicle.
The ACMA considered that this consultation was appropriate in the circumstances, and that it was not reasonably practicable to undertake additional consultation.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR) was consulted and advised that the impact of the proposed Determination is not likely to have regulatory impacts for business, individuals or community organisations and a Regulatory Impact Assessment will not be required (OBPR reference number 22198).
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 LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.
The statement of compatibility set out below has been prepared to meet that requirement.
Overview of the instrument
The instrument 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 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 April 2017
Human rights implications
The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.
Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
ATTACHMENT A
Notes to the Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2017
Section 1 – Name
This section provides for the instrument to be cited as the Radiocommunications (Australian Federal Police – Visiting Dignitary) Exemption Determination 2017.
Section 2 – Commencement
This section provides that the instrument commences the day after it is registered on the Federal Register of Legislation. Section 3 – Authority
The section identifies the provision of the Act that authorises the making of the instrument, namely subsection 27(2) of the Radicommunications Act 1992 (the Act).
Section 4 – Cessation
Section 4 provides that the instrument expires on 24 April 207, as if it had been repealed by another instrument.
Section 5 – Definitions
Section 5 defines key terms used in the instrument.
Section 6 – Exemption in relation to certain activities in relation to visiting dignitary
Section 6 exempts the acts and omissions of certain classes of people from the operation of Parts 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 or vehicles 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 the commencement of the instrument and ending on 24 April 2017.