EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Amendment Declaration 2020 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Amendment Declaration 2020 (No. 1) (the Amendment Declaration) under subsection 190(1) of the Radiocommunications Act 1992 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
Subsection 190(1) of the Act provides that the ACMA may declare that operation or supply, or possession for the purpose of operation or supply, of a specified device is prohibited for the reasons set out in the declaration.
Subsection 33(3) of the AIA provides that when an Act confers a power to make any instrument of a legislative character, that power shall, unless the contrary intention appears, be construed as including a power exercisable in a like manner and subject to like conditions (if any), to amend any such instrument.
Purpose and operation of the instrument
The radionavigation-satellite service (RNSS), commonly known as the Global Positioning System or GPS, is a system of satellites, which together with supporting infrastructure provides accurate positioning, velocity and timing data of objects that contain or include an RNSS receiver.
The Amendment Declaration amends the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (the RNSS Jamming Device Declaration). The RNSS Jamming Device Declaration is made under section 190 of the Act and provides that the operation, supply, or possession for the purpose of operation or supply, of an RNSS jamming device, is prohibited. Before the making of the Amendment Declaration, the RNSS Jamming Device Declaration defined an RNSS jamming device to be a device that:
(a) is designed to have an adverse effect on the reception by RNSS receivers of RNSS radiocommunications; and
(b) would be likely substantially to interfere with, disrupt or disturb the reception by RNSS receivers of RNSS radiocommunications.
Section 5 of the RNSS Jamming Device Declaration gives the reasons for prohibition of RNSS jamming devices. These reasons include that the radiocommunications use of an RNSS jamming device serves no legitimate purpose and that the primary purpose of an RNSS jamming device is to adversely affect, interfere with, disrupt or disturb the reception of RNSS radiocommunications by RNSS receivers. In doing so, RNSS jamming devices may inconvenience RNSS users and could threaten public safety, as many public safety services use RNSS radiocommunications to identify locations of equipment or of persons in distress.
RNSS repeaters are radiocommunications devices that receive and re-transmit RNSS signals. They are intended to be used to re-transmit RNSS signals in areas where there is poor or no reception of the original RNSS signal, such as in an under cover or underground environment.
RNSS repeaters are or contain devices that may adversely affect, interfere with, disrupt or disturb the reception of RNSS radiocommunications by RNSS receivers. Accordingly, without the Amendment Declaration, RNSS repeaters may have been prohibited by the RNSS Jamming Device Declaration.
When used as intended, some RNSS repeaters may substantially interfere with, disrupt or disturb the reception by RNSS receivers of RNSS radiocommunications. However, where such an RNSS repeater does so and is correctly deployed, it will re-transmit the original RNSS radiocommunication to nearby RNSS receivers in circumstances where those RNSS receivers may not have received the original RNSS radiocommunication. Accordingly, RNSS repeaters can serve a legitimate purpose and can provide broad public benefit.
The Amendment Declaration amends the RNSS Jamming Device Declaration to ensure that operation, supply, or possession for the purpose of operation or supply, of RNSS repeaters is not prohibited. Operation, possession and supply of an RNSS repeater would still need to occur in accordance with the regulatory regime set out in the Act, including in relation to licensing, standard compliance and labelling.
A provision by provision description of the Amendment Declaration is set out in the notes at Attachment A.
The Amendment Declaration is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The Amendment Declaration does not incorporate any document by reference.
Consultation
Before the Amendment Declaration 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.
Section 191 of the Act requires the ACMA, before making a declaration in relation to a device under section 190, to publish a notice on the ACMA’s website that:
(a) describes the device;
(b) specifies the reasons why the ACMA proposes to make the declaration; and
(c) invites interested persons to make representations about the proposed declaration within a specified period that is not less than one month after the date of publication of the notice.
The ACMA must give due consideration to any representations so made.
The ACMA published a notice and a draft of the Amendment Declaration on its website on 18 May 2020. Interested persons were invited to make representations on the ACMA’s proposal to make the Amendment Declaration by 13 July 2020.
As part of its consultation, the ACMA indicated that, if made, the Amendment Declaration could facilitate trials of RNSS repeaters in road tunnels by licensed operators. Road tunnels, as underground environments, receive poor or no RNSS signals, and could benefit from having improved RNSS services. Emergency services in particular would be better able to respond to critical situations by being able to track and locate their vehicle assets, even when those assets are travelling in road tunnels. Other road users, including the public, could also benefit from enhanced in-tunnel navigation capability. The consultation paper also discussed the ACMA’s planned approach to developing a licensing solution that could see the deployment of RNSS repeaters in environments other than road tunnels.
The ACMA received one confidential submission and nineteen public submissions from government agencies, product vendors, industry associations, academic and research stakeholders, and stakeholders in the transport, telecommunications and emergency services sectors. With the exception of the confidential submission, all were published on the ACMA’s website.
The ACMA gave due consideration to any representations made in submissions when it considered making the Amendment Declaration.
Stakeholders recognised the benefits that RNSS repeaters can provide in RNSS-denied environments, and the majority of submissions supported the ACMA’s proposal to make the Amendment Declaration. In addition to road tunnels, stakeholders also identified railway tunnels and stations, transport hubs, urban canyons, and mining and manufacturing sites as examples of other RNSS-denied environments that could benefit from improved RNSS services.
Two submissions expressed concerns that making the Amendment Declaration could lead to uncontrolled use of RNSS repeaters, posing a risk of interference to telecommunications networks, particularly to telecommunications services that rely on the timing information transmitted by the RNSS. The ACMA has formed the view, however, that these risks can be managed through a regulatory regime that requires the devices to be licensed, and to meet operational and technical compliance and labelling standards.
Regulatory impact assessment
A preliminary assessment of the proposal to make the Amendment Declaration 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 would be required. OBPR formed the opinion that no regulatory impact analysis is required. The OBPR reference number is 25515.
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 in Attachment B has been prepared to meet that requirement.
Attachment A
Notes to the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Amendment Declaration 2020 (No. 1)
Section 1 Name
This section provides for the Amendment Declaration to be cited as the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Amendment Declaration 2020 (No. 1).
Section 2 Commencement
This section provides for the Amendment Declaration to commence at the start of the day after the day it is registered on the Federal Register of Legislation.
The Federal Register of Legislation may be accessed, free of charge, at www.legislation.gov.au.
Section 3 Authority
This section identifies the provision of the Act that authorises the making of the Amendment Declaration, namely, subsection 190(1) of the Act.
Section 4 Amendments
Section 4 provides that the RNSS Jamming Device Declaration is amended as set out in the applicable items of Schedule 1.
Schedule 1
Item 1
Item 1 amends the definition of RNSS jamming device to provide that a device that is or that forms part of an RNSS repeater is not an RNSS jamming device.
Item 2
Item 2 inserts a definition of RNSS repeater. A thing will be an RNSS repeater if, when operated, it both receives RNSS radiocommunications and automatically transmits, or attempts to transmit, each such radiocommunication received.
Item 3
Item 3 amends section 5 of the RNSS Jamming Device Declaration, which sets out the reasons the Declaration was made. A new paragraph sets out the reason why RNSS repeaters are not covered by the Declaration.
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 (Prohibited Device) (RNSS Jamming Devices) Amendment Declaration 2020 (No. 1)
Overview of the instrument
The Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (RNSS Jamming Device Declaration) is made under section 190 of the Act and provides that the operation, supply, and possession for the purpose of operation or supply, of an RNSS jamming device, is prohibited.
The operation, supply, and possession for the purpose of operation or supply, of RNSS repeaters may have been prohibited by the RNSS Jamming Device Declaration in certain circumstances. However, RNSS repeaters are legitimate radiocommunications devices that, when deployed correctly can provide public benefit, by re-transmitting RNSS radiocommunications in areas where their original transmission may not reach. The Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Amendment Declaration 2020 (No. 1) (Amendment Declaration) amends the RNSS Jamming Device Declaration to exclude RNSS repeaters from the application of the RNSS Jamming Device Declaration.
Human rights implications
The ACMA has assessed whether the Amendment Declaration 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 Amendment Declaration and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument engages the right to just and favourable conditions of work in Article 7 of the International Covenant on Economic, Social and Cultural Rights in a positive way.
The right to just and favourable conditions of work includes the right to safe and healthy working conditions.
Reliable RNSS communications are vital to the safety of emergency services officers in the field. The lack of RNSS signals in underground environments such as tunnels can lead to the loss of functionality for vehicle on-board tracking systems used by emergency services. This in turn diminishes the ability of emergency services to maintain accountability of personnel, particularly when they are travelling through, or working in, underground environments. The ACMA is of the view that the provision of RNSS services in road tunnels can help to address these issues and improve the safety of persons working in those environments.
The Amendment Declaration positions the ACMA to facilitate deployment of RNSS repeaters in road tunnels.
Conclusion
The Amendment Declaration is compatible with human rights as it does not raise any human rights issues, apart from its affecting the right to just and favourable conditions of work in a positive way.