EXPLANATORY STATEMENT

Issued by the authority of the Australian Communications and Media Authority

Radiocommunications (Bench Testing by Corrective Services NSW of Mobile Telephone Jamming Device) Exemption Amendment Determination 2010 (No.1)

Radiocommunications Act 1992

Purpose

The purpose of the Radiocommunications (Bench Testing by Corrective Services NSW of Mobile Telephone Jamming Device) Exemption Amendment Determination 2010 (No.1) (the Determination) is to amend the Radiocommunications (Bench Testing by Corrective Services NSW of Mobile Telephone Jamming Device) Exemption Determination 2010 (the Bench Testing ED) by:

(i)      extending the cessation date of the Bench Testing ED until 14 March 2011; and

(ii)    requiring Corrective Services NSW (CSNSW) to provide a report on the bench testing within eight weeks of the commencement of the bench testing in the shielded environment.

Legislative Provisions

Subsection 27(2) of the Radiocommunications Act 1992 (the Act) allows the Australian Communications and Media Authority (the ACMA) to determine that acts or omissions by members of a class of persons, to whom section 27 applies, 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.

Under subparagraph 27(1)(be) of the Act, the ACMA may, by written determination, determine that a body that performs functions related to the investigation, prevention or prosecution of serious crime, or of corruption (whether or not the body also performs other functions) is a body to which section 27(1) applies.[1]

Subsection 33(3) of the Acts Interpretation Act 1901 provides that when exercising its power to make written instruments under an Act, the ACMA also has the power to repeal, rescind, revoke, amend, or vary such instruments.

Determinations made under subparagraph 27(1)(be) and subsection 27(2) of the Act are legislative instruments for the purposes of the Legislative Instruments Act 2003 (the LIA).

Background

CSNSW has sought the ACMA’s permission to conduct a field trial of mobile telephone jamming devices to help inform decision making on whether it is in the public interest to allow deployment of mobile telephone jamming devices in NSW correctional facilities. It is proposed the field trial be conducted at Lithgow Correctional Centre in New South Wales (NSW) (the Lithgow trial).

As a precursor to the proposed Lithgow trial, CSNSW will conduct bench testing of candidate mobile telephone jamming devices in a shielded environment to determine which devices are most suitable for use in the Lithgow trial. To enable this bench testing, the ACMA made the Bench Testing ED to provide CSNSW staff (and persons acting on behalf of CSNSW in prescribed circumstances) with an exemption from Parts 3.1, 4.1 and 4.2 of the Act. To this end, the Bench Testing ED specifies the circumstances in which persons performing a function or duty in relation to CSNSW will be permitted to use, operate, supply or possess a mobile telephone jamming device. Pursuant to section 5, the Bench Testing ED ceases to have effect at the conclusion of the bench testing period. The bench testing period is defined as meaning the period of three months from the date on which the Bench Testing ED commenced. The bench testing period commenced on 14 September 2010 and would, without amendment conclude on 14 December 2010.

Since the commencement of the Bench Testing ED, CSNSW has informed the ACMA that the importation of candidate mobile telephone jamming devices for the bench testing will take longer than anticipated. Consequently, the importation process would largely exhaust the 3 month term of the Bench Testing ED, leaving very limited time for the actual testing of candidate mobile telephone jamming devices. Further, the reporting requirement in section 7 of the Bench Testing ED will not be met.

Operation of the Determination

The Determination omits the definition of bench testing period and amends the cessation date in section 5 of the Bench Testing ED to be 14 March 2011. Further, the Determination amends section 7 of the Bench Testing ED to require that CSNSW must provide a report within eight weeks (opposed to six weeks) of the commencement of the bench testing in a shielded environment.  The Determination also makes a consequential amendment to section 8 of the Bench Testing ED by removing the reference to “bench testing period”.

Consultation

For the purposes of subsection 18(2) of the Legislative Instruments Act 2003 (the LIA) the ACMA believes that the amendment is of a minor and machinery nature that does not substantially alter existing arrangements. The Lithgow Trial Working Group was provided with a draft copy of the Determination. The Lithgow Trial Working Group is comprised of representatives from the ACMA, CSNSW, Kordia Solutions Pty Ltd, Optus, Vodafone Hutchison Australia and Telstra.   

Regulatory Impact

The Office of Best Practice Regulation (OBPR) has considered the matter and formed the opinion that no further regulatory impact analysis is required. The OBPR reference number is 2010/12019.

Determination Details

Details of the Determination are provided in the Attachment.

Attachment

Notes on Determination

Section 1 Name of Determination

  Section 1 provides the name of the Determination.

Section 2 Commencement

Section 2 provides that the Determination commences on the day after it is registered.

Section 3 Amendment of the Radiocommunications (Bench Testing by Corrective Services NSW of Mobile Telephone Jamming Device) Exemption Determination 2010

 Section 3 provides that Schedule 1 amends the Radiocommunications (Bench Testing by Corrective Services NSW of Mobile Telephone Jamming Device) Exemption Determination 2010.

Schedule 1  Amendment (section 3)

[1] Section 3

 Item 1 omits the definition of bench testing period in Section 3.

[2] Section 5

 Item 2 amends the cessation date of the Bench Testing ED to be 14 March 2011.

[3] Section 7

 Items 3 and 4 amend the time by which CSNSW must provide the ACMA with a report from six weeks to eight weeks of the commencement of the bench testing in a shielded environment.

 [5] Subsection 8(1)

 Item 5 makes a consequential amendment by requiring CSNSW to dispose of the mobile telephone jamming devices prior to the ”date on which the Determination ceases to have effect”, opposed to the “conclusion of the bench testing period”, the definition of which has been removed.

[1]  Subsection 27(4) of the Act provides that for the purpose of subparagraph 27(1)(be)(i), serious crime is conduct that, if engaged in within, or in connection with. Australia, would constitute an offence against the law of the Commonwealth, a State or a Territory punishable by the imprisonment for a period exceeding 12 months.