EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Amendment Determination 2014 (No.1)
Radiocommunications Act 1992
Purpose
The purpose of the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Amendment Determination 2014 (No.1) (the Amendment) is to extend the trial of public mobile telecommunications service jamming devices (PMTS jamming devices) by Corrective Services NSW (CSNSW) at the Lithgow Correctional Centre by three months.
The Amendment changes the date on which the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Determination 2012 (the Determination) ceases to have effect from 30 June 2014 to 30 September 2014.
The operation or supply of a PMTS jamming device, or the possession of a PMTS jamming device for the purposes of its operation or supply, is prohibited under Part 4.1 of the Radiocommunications Act 1992 (the Act). The Determination, which is made under section 27 of the Act, exempts acts or omissions relating to the use, operation, possession or supply of certain PMTS jamming devices by certain persons who perform functions or duties in relation to CSNSW from Part 4.1 of the Act and from Parts 3.1 and 4.2 of the Act, which deal respectively with licensing and interference to other radiocommunications services.
Legislative Provisions
Subsection 27(2) of 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 paragraph 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. Under subsection 33(3) of the Acts Interpretation Act 1901, as the ACMA has a power to make such instruments under paragraph 27(1)(be) and subsection 27(2) of the Act, the ACMA has the power to repeal, rescind, revoke, amend or vary such instruments.
Determinations made under paragraph 27(1)(be) and subsection 27(2) of the Act are legislative instruments for the purposes of the Legislative Instruments Act 2003 (Cth).
Background
The operation or supply, or possession for the purposes of operation or supply, of a PMTS jamming device is prohibited under section 189 of the Act (see the Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011 (the Declaration) made under subsection 190(1) of the Act).
CSNSW approached the ACMA seeking an exemption under section 27 of the Act to enable CSNSW to lawfully conduct a trial of PMTS jamming devices at the Lithgow Correctional Centre, to help inform decision making on whether it would be in the public interest to allow deployment of PMTS jamming devices in NSW correctional facilities. The use of mobile phones by prison inmates is considered to be a serious problem by CSNSW. While it is an offence in NSW for an inmate to use or possess a mobile phone without reasonable excuse, detection of possession and use of mobile phones can be difficult.
To enable a field trial of PMTS jamming devices in NSW correctional facilities, the ACMA made the Determination on 17 December 2012.
In May 2014, CSNSW requested that the ACMA extend the Determination by three months to enable continuation of the field trial until 30 September 2014. CSNSW advised that there had been delays in the start of the trial period due to difficulties with procurement. As a result of this delay, and recent technology enhancements to the jammer system, CSNSW advised that an extension of three months would allow for more effective completion and evaluation of the trial.
Operation
The Amendment amends section 5 of the Determination so that the Determination will cease to have effect and expire as if it were repealed by another instrument on 30 September 2014, rather than 30 June 2014.
Further details about the Amendment are set out in the Notes on Sections in Attachment A.
Consultation
From 23 to 30 May, 2014, in accordance with section 17 of the Legislative Instruments Act 2003, the ACMA consulted directly with the three licensed mobile telecommunications carriers, the Department of Communications and the Attorney-General’s Department. Given the minor and machinery nature of the amendment and the need to make the amendment prior to 30 June 2014, it was not considered necessary or reasonably practicable to undertake further consultation.
Regulatory Impact
The Office of Best Practice Regulation (OBPR) was consulted and advised that the proposed regulatory change is minor or machinery in nature and that no further regulatory impact analysis is required. The OBPR reference number is ID 17056.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights for the purpose of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment B.
ATTACHMENT A
NOTES ON SECTIONS
Section 1 Name of Determination
Section 1 provides for the citation of the Amendment as the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Amendment Determination 2014 (No. 1).
Section 2 Commencement
Section 2 provides that the Amendment commences the day after it is registered.
Section 3 Amendment to the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Determination 2012
Section 3 amends section 5 of the Determination to provide that the Determination will cease to have effect on 30 September 2014.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Amendment Determination 2014 (No. 1)
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 ACMA has made the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Amendment Determination 2014 (No.1) (the Amendment) to extend the trial of public mobile telecommunications service jamming devices by Corrective Services NSW at the Lithgow Correctional Centre by three months.
The Amendment changes the date on which the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Determination 2012 ceases to have effect from 30 June 2014 to 30 September 2014.
Human Rights Implications
This Legislative Instrument engages an applicable right or freedom, namely the right to freedom of opinion and expression. The use of these jamming devices is intended to prevent inmates at the Correctional Centre from being able to use mobile telecommunications and therefore impacts upon their freedom of expression. However, the legislative instrument is not incompatible with the right engaged as the limitation is reasonable, necessary and proportionate to the achievement of the legitimate objective of preventing inmates from using mobile phones in an unsupervised manner in prison.
It is an offence under NSW law for an inmate to use or possess a mobile phone without reasonable excuse as the use of mobile phones may allow prisoners to continue to be involved in criminal activity outside the confines of the prison. This is a threat to the proper administration of correctional facilities and is contrary to the objectives of imprisonment. It is difficult to detect the use and possession of mobile phones in prison, and it is considered that a trial of mobile phone jamming devices to prevent inmates using mobile phones while in prison assists in ensuring that inmates are not able to use mobile phones in contravention of the law.
Conclusion
This Legislative Instrument is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.
Australian Communications and Media Authority