EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Commonwealth Games Anti-Drone Technology/RNSS Jamming Devices) Exemption Determination 2018
Authority
The ACMA has made the Radiocommunications (Commonwealth Games Anti-Drone Technology/RNSS Jamming Devices) Exemption Determination 2018 (the instrument) under subsection 27(2) of the Radiocommunications Act 1992 (the Act).
Under that subsection the ACMA may determine that acts or omissions by members of a class of persons performing a function or duty in relation to, among other things, 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 XXI Commonwealth Games will be held in Queensland, from 4 April to 15 April 2018. The event will attract numerous high profile athletes, dignitaries and many domestic and international spectators. The instrument provides an exemption to officers of the Queensland Police Service (QPS) from particular provisions of the Act, in order to facilitate security measures associated with the Commonwealth Games.
The instrument exempts QPS officers in relation to acts or omissions regarding anti-drone technology, including drone gun devices, used as radio-navigation-satellite service (RNSS) jamming devices (RNSS Jamming Devices), to effectively disable unmanned aerial vehicles (UAV), commonly known as drones, or unmanned aerial systems (UAS), in the protected zone and relevant frequency bands between 15 March and 22 April 2018. The instrument specifically exempts certain acts and omissions of QPS officers from the operation of Parts 3.1, 4.1 and 4.2 of the Act.
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 RNSS Jamming Devices to be prohibited, by the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (the Prohibition Declaration).
A device is an RNSS Jamming Device if it is designed to have an adverse effect on radiocommunications or would be likely to substantially interfere with, disrupt or disturb radiocommunications transmitted on RNSS frequencies.
Where the ACMA has declared a device to be prohibited under section 190 of the Act, the Customs (Prohibited Imports) Regulations 1956 (the Regulations) (made under the Customs Act 1901) 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 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 instrument exempts the acts and omissions of QPS officers (relevant persons) from the operation of Parts 3.1, 4.1 and 4.2 of the Act, including section 189, in specified circumstances. 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 QPS’s role in promoting safety, security or protection of the Commonwealth Games, or its participants and spectators;
- in relation to the use of RNSS Jamming Devices to disable UASs and UAVs which are controlled by radiocommunications operated on RNSS frequencies in the protected zone; and
- during the period commencing on 15 March 2018 and ending on 22 April 2018 (the relevant period).
Relevant frequency bands
The instrument allows relevant persons to use RNSS Jamming Devices in the following frequency bands (relevant frequency bands):
- 2400-2483 MHz; and
- 5275-5850 MHz.
The ACMA notes that these frequency ranges are not within the ranges of frequencies to which the Prohibition Declaration applies.[1] However, QPS has advised that the devices which it intends to import for the purpose of disabling UASs and/or UAVs are capable of operating within the range of frequencies covered by the Prohibition Declaration, thus rendering them prohibited devices.
Mitigation of risk associated with the use of the devices
In the event that an RNSS Jamming Device is operated by QPS, there is a risk that the device may affect public and private Wi-Fi services for the period the device is active.
The provisions of the instrument mitigate this risk in various ways.
First, as noted above, the exemption applies only within the relevant period, and only in the relevant frequency bands.
Further, the exemption only applies in a limited locale. Airservices Australia has published the Aeronautical Information Circular H10/18 XXI Commonwealth Games Venues and Events, Airspace restrictions for remotely piloted aircraft, 25 March – 18 April 2018 (Circular). That Circular establishes a temporary restricted area over all competition venues and the Athletes’ Village from 25 March 2018 until 18 April 2018 inclusive, for a 2km radius. The instrument provides an exemption to QPS officers only in relation to acts or omissions that occur in relation to this temporary restricted area. It may be an offence for a UAV or UAS to be in the temporary restricted area under section 29 of the Major Events Act 2014 (Qld) or Part 101 of the Civil Aviation Safety Regulations 1998.
Furthermore, the exemption applies only to QPS officers acting in the course of their duties in relation to the Commonwealth Games. Such officers, if and when operating an RNSS Jamming Device, will remain subject to Queensland laws and policies applying to the conduct of QPS officers, including the Police Service Administration Act 1990 (Qld), the Police Powers and Responsibilities Act 2000 (Qld) and the Public Safety Preservation Act 1986 (Qld).
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:
- Air Services Act 1995
- Australian Radiofrequency Spectrum Plan 2017
- Police Service Administration Act 1990 (Qld)
- Radiocommunications Act 1992
- Radiocommunications (Radionavigation-Satellite Service) Class Licence 2015
The Commonwealth legislation and instruments listed above can be found on the Federal Register of Legislation (http://www.legislation.gov.au/) and Queensland legislation may be viewed at https://www.legislation.qld.gov.au.
The instrument incorporates the Aeronautical Information Circular H10/18 XXI Commonwealth Games Venues and Events, Airspace restrictions for remotely piloted aircraft, 25 March – 18 April 2018 as in existence from time to time. The Circular is available from Airservices Australia at https://www.airservicesaustralia.com/aip/current/sup/a18-h10.pdf.
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 liaised with QPS following a Major Sporting Events Committee meeting convened on 5 March 2018.
The ACMA undertook targeted consultation for a short period commencing on 7 March 2018 and concluding on 9 March 2018. In view of the operational timeline for QPS’s importation of RNSS Jamming Devices before the commencement of the Commonwealth Games, the ACMA had only a short time frame within which to consult upon the proposed instrument.
The ACMA consulted with Airservices Australia, the Civil Aviation Safety Authority, Free TV, the ABC, NEP Host Broadcast (the broadcasting hub for the Commonwealth Games), the Gold Coast 2018 Commonwealth Games Corporation (GOLDOC), Nitestar Pty Ltd, Getty Images, Game of Drones, the Australian Industry Group (AIG), and the Consumer Electronics Suppliers Association (CESA).
A consultation paper and draft instrument was sent to each of the identified stakeholders and they were each telephoned to alert them to the consultation and the draft instrument. One stakeholder was not able to be contacted by telephone and was emailed separately.
Summary of stakeholder responses
Free TV and the ABC received the consultation email, and discussed the matter with ACMA staff. Both indicated by return email that they had no concerns with the proposal.
CASA raised a number of operational matters for QPS to consider. ACMA conveyed these issues to QPS. CASA raised a qualification about the area of operation permitted by the exemptions which the ACMA took into account.
Airservices Australia advised that it had no safety systems operating on the frequencies that would be affected by drone jamming. It noted that if there was an intent to use GPS jamming it would need to reassess its position.
Drone operators (Game of Drones, GOLDOC) had been informed of proposed drone jamming activities by QPS prior to ACMA contact, and had no comments. Nitestar (one of the drone operators) confirmed that it had been involved in detailed discussions with both GOLDOC and QPS, and understood the implications of the potential deployment of QPS drone guns, and considered their effect on its drone operations.
AIG and CESA both noted that they would not have time to comment on the exemption. CESA noted that the matter would be of little concern for it, or its members, and that they would generally support the exemption, given the prevalence of low power radiocommunications device users, and the security required by the Commonwealth Games.
NEP Host Broadcast commented that the consultation information was in line with what had been discussed in prior meetings with QPS, and that it had no need to make a submission.
Regulatory impact assessment
A preliminary assessment of the proposal to make the instrument was conducted by the Office of Best Practice Regulation (OBPR), based on information provided by the ACMA, for the purposes of determining whether a Regulation Impact Statement (RIS) would be required. OBPR advised that a RIS would not be required because the instrument was not expected to have a regulatory impact on businesses, community organisations or individuals (OBPR reference number 23605).
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 QPS officers from the operation of Parts 3.1, 4.1 and 4.2 of the Act, for the purposes of QPS’s role in dealing with RNSS Jamming Devices and promoting the safety, security or protection of the Commonwealth Games and participants in, and spectators at, the Commonwealth Games.
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 on sections of the Radiocommunications (Commonwealth Games Anti-Drone Technology/RNSS Jamming Devices) Exemption Determination 2018
Section 1 Name
This section provides for the instrument to be cited as the Radiocommunications (Commonwealth Games Anti-Drone Technology/RNSS Jamming Devices) Exemption Determination 2018.
Section 2 Commencement
This section provides that the instrument commences on 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 23 April 2018, as if it had been repealed by another instrument.
Section 5 Definitions
Section 5 defines key terms used in the instrument. Significantly, protected zone is defined to mean each temporary restricted area described in the Circular, and relevant period is defined to mean the period from 15 March 2018 until 22 April 2018.
A number of other expressions used in the instrument are defined in the Act.
Section 6 References to other instruments
This section provides that in the instrument, unless the contrary intention appears:
- a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
- a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force or in existence from time to time.
Section 7 Exemption in relation to certain activities for the Commonwealth Games
Section 7 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 class of people authorised are QPS officers performing a function or duty in relation to QPS.
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 QPS, in relation to use and operation of RNSS Jamming Devices to combat UASs and UAVs, in the protected zone, during the relevant period.
[1] The Prohibition Declaration applies to those frequencies which are listed in section 6 of the Radiocommunications (Radionavigation-Satellite Service) Class Licence 2015.