EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Invictus Games Anti-Drone Technology/RNSS Jamming Devices) Exemption Determination 2018
Authority
The ACMA has made the Radiocommunications (Invictus 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 defence, security or international relations of Australia, or the Australian Federal Police, are exempt from certain provisions of the Act.
Purpose and operation of the instrument
The Invictus Games will be held in Sydney, from 20 October to 27 October 2018. The event will attract competitors, dignitaries, service personnel and domestic and international spectators. The instrument provides an exemption to members of the Australian Federal Police (AFP) from particular provisions of the Act, in order to facilitate security measures associated with the Invictus Games.
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 radionavigation-satellite service (RNSS) jamming devices (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, and it 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 certain acts and omissions of AFP members (relevant persons) from the operation of Parts 3.1, 4.1 and 4.2 of the Act in relation to certain RNSS Jamming Devices. Operation of the devices is authorised only in order to disable unmanned aircraft (UA), commonly known as drones, or unmanned aircraft systems (UAS) within geographically defined areas specific to the Invictus Games (the protected zone).
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’s role in promoting safety, security or protection of the Invictus Games, or its participants and spectators;
in relation to the use of RNSS Jamming Devices to disable UASs and UAs which are operating in the protected zone; and
during the period commencing on 8 October 2018 and ending on 8 November 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
5725-5850 MHz.
The relevant frequency bands are not within the ranges of frequencies to which the Prohibition Declaration applies. However, the AFP has advised that the devices which it intends to operate for the purpose of disabling UASs and UAs are capable of operating within the range of frequencies covered by the Prohibition Declaration, thus rendering them RNSS Jamming Devices.
Mitigation of risk associated with the use of the devices
In the event that an RNSS Jamming Device is operated by the AFP, there is a risk that the device may affect a range of devices, especially those authorised under the Radiocommunications (Low Interference Potential Devices) Class Licence 2015, including public and private Wi-Fi services, for the period the device is active.
The provisions of the instrument mitigate this risk in various ways.
As noted above, the exemption applies only during the relevant period, and only in relation to the relevant frequency bands.
Further, the exemption only applies to the protected zone. Airservices Australia has published the Aeronautical Information Circular H33/18 Invictus Games, Sydney, NSW, Airspace Restrictions for Remotely Piloted Aircraft, 18 October – 28 October 2018 (the Circular). The Circular establishes temporary restricted areas over specific geographic areas at specific times. Under the instrument, operation of the RNSS Jamming Devices is only authorised within these temporary restricted areas.
Furthermore, the exemption applies only to AFP members acting in the course of their duties in relation to the Invictus Games. Such members, if and when operating an RNSS Jamming Device, will remain subject to laws and policies applying to the conduct of AFP officers, including the Australian Federal Police Act 1979.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The instrument incorporates by reference the following Acts and legislative instruments, as in force from time to time:
the Act;
Air Services Act 1995;
Australian Federal Police Act 1979;
Australian Radiofrequency Spectrum Plan 2017;
Radiocommunications (Radionavigation-Satellite Service) Class Licence 2015.
Commonwealth legislation and legislative instruments can be found on the Federal Register of Legislation (http://www.legislation.gov.au/).
The instrument incorporates the Circular as in force at the time it was made. The Circular is available from Airservices Australia at http://www.airservicesaustralia.com/aip/aip.asp?pg=50.
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.
In view of the operational timeline for the AFP’s importation of RNSS Jamming Devices before the commencement of the Invictus Games, the ACMA undertook consultation for the period commencing on 24 August 2018 and concluding on 7 September 2018.
A consultation paper and draft instrument were made available for public comment on the ACMA website.
The ACMA also directly notified a number of stakeholders of the public consultation, including: Airservices Australia, Australian Broadcasting Corporation, Australian Industry Group, Australian Invictus Management Group, Australian Mobile Telecommunications Association (AMTA), CASA, Commercial Radio Australia, Consumer Electronics Suppliers Association, Department of Defence, Department of Home Affairs, Free TV Australia, National Broadband Network, New South Wales Police Force, Optus, Special Broadcasting Service, Telstra, TPG Telecom, and Vodafone Hutchison Australia.
The draft instrument on which the ACMA initially consulted proposed to authorise operation of the devices within two of the four temporary restricted areas established in the Circular. Following discussions with the AFP and the Civil Aviation Safety Authority during the consultation, the instrument was changed to include the remaining two temporary restricted areas within the protected zone.
The ACMA received one response to the consultation from AMTA, indicating that mobile network operators had not raised any concerns about the proposed exemption determination.
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 minor or machinery in nature (OBPR reference number 24032).
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 at Attachment B has been prepared to meet that requirement.
Attachment A
Notes on sections of the Radiocommunications (Invictus 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 (Invictus 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 Act.
Section 4 Cessation
Section 4 provides that the instrument expires on 9 November 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 the temporary restricted areas described in the Circular, and relevant period is defined to mean the period from 8 October 2018 until 8 November 2018 (inclusive).
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 at the time it was made.
Section 7 Exemption in relation to certain activities for the Invictus Games
Section 7 exempts the acts and omissions of AFP members performing a function or duty in relation to the AFP from the operation of Parts 3.1, 4.1 and 4.2 of the Act, if those acts or omissions occur in particular 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 the AFP, in relation to use and operation of RNSS Jamming Devices to combat UASs and UAs, in the protected zone, during the relevant period.
Attachment B
Statement of compatibility with human rights
Prepared by the Australian Communications and Media Authority under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Invictus Games Anti-Drone Technology/RNSS Jamming Devices) Exemption Determination 2018
Overview of the instrument
The Invictus Games will be held in Sydney from 20 October to 27 October 2018. The event will attract competitors, dignitaries, service personnel and domestic and international spectators. The ACMA has declared the operation and possession of radionavigation-satellite service jamming devices (RNSS Jamming Devices) to be prohibited, by the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (the Prohibition Declaration). The instrument provides an exemption to members of the Australian Federal Police (AFP) from Parts 3.1, 4.1 and 4.2 of the Act, for the purposes of the AFP’s role in dealing with RNSS Jamming Devices and promoting the safety, security or protection of the Invictus Games and participants in, and spectators at, the Invictus Games.
There is a risk that an RNSS Jamming Device of the type proposed for use by the AFP may affect a range of devices, especially those authorised under the Radiocommunications (Low Interference Potential Devices) Class Licence 2015, including public and private Wi-Fi services, for the period the device is active.
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 engages the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights. The operation of an RNSS Jamming Device of the type proposed, at a public event, may have the possible effect of disrupting the WiFi connection of public users.
The right to freedom of expression includes the right to seek, receive and impart information and ideas through any media of a person’s choice, and it is subject to certain restrictions, including the protection of national security or public order.
The AFP has advised that in the event of an RNSS Jamming Device being operated to disable an unmanned aircraft (UA) or unmanned aircraft systems (UAS), the use of the RNSS Jamming Device would be limited to the flight path of the UA or UAS.
Use of the RNSS Jamming Device may result in some limitation of the right to freedom of expression. However, it does so consistently with Article 19, in a manner that is reasonable, necessary and proportionate. Any limitation would only be for a small amount of time and in limited areas.
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 could affect the right of freedom of expression; however, any effect is limited and is proportional to the purpose of achieving public safety at the Invictus Games.
Conclusion
The instrument is compatible with human rights because any limitation on the right of freedom of expression is limited in manner which is reasonable, necessary and proportionate to the purpose of public order at the Invictus Games.