EXPLANATORY STATEMENT
Issued by the authority of the Australian Communications and Media Authority
Radiocommunications (Prohibited Devices) (AFP testing of Mobile Telephone Jamming Devices) Exemption Amendment Determination 2007
Radiocommunications Act 1992
Purpose
The purpose of the Radiocommunications (Prohibited Devices) (AFP testing of Mobile Telephone Jamming Devices) Exemption Amendment Determination 2007 (the Amendment Determination) is to amend the Radiocommunications (Prohibited Devices) (AFP testing of mobile telephone jamming devices) Exemption Determination 2006 (the original Determination) to extend the day the latter ceases by three months to 15 months after the day on which it commenced. The original Determination will now cease on 15 August 2007.
Legislative Provisions
Under subsection 27 (2) of the Radiocommunications Act 1992 (the Act), the Australian Communications and Media Authority (ACMA) may determine that acts or omissions by members of a class of persons performing a function or duty in relation to the defence of Australia be exempt from certain provisions of the Act.
A determination made under subsection 27 (2) is a disallowable instrument for the purposes of the Legislative Instruments Act 2003.
Background
The use of mobile telephones in prisons has been of concern to State and Territory corrections authorities for some years. The objective of corrective services departments is to be able to prevent inmates, including suspected or convicted terrorists, from making unauthorised telephone calls. The new generation of ‘smart jammers’ have been identified as a means to prevent their use.
ACMA made the original Determination on 11 May 2006 to facilitate the testing, during a trial period, of mobile telephone jamming devices by Telstra at its shielded room testing facility. It exempts the Australian Federal Police (the AFP) and employees of Telstra from the Notification That the Australian Communications Authority Prohibits the Operation or Supply, or Possession for the Purpose of Operation or Supply, of Specified Devices, dated 4 March 1999, made under section 190 of the Radiocommunications Act.
The 3-month extension will facilitate the AFP and Telstra to negotiate with each other and with other mobile carriers an appropriate test regime.
Regulation Impact
ACMA’s preliminary assessment of the Amendment Determination indicates that it has no significant indirect effect on business, no impact on Telstra’s market competitiveness and imposes no consequential compliance costs on the parties to whom it applies. For those reasons under the self-assessment regime administered by the Office of Best Practice Regulation, ACMA has determined that there is no need to produce a Business Cost Calculator report or to prepare a Regulation Impact Statement. The ACMA RIS reference number is 008.
Consultation
When making the original Determination all of the mobile carriers and the Australian Mobile Telecommunications Association were consulted and will continue to be involved in setting the parameters of the test. Their comments at that time were considered in the making of the original Determination and this instrument. The mobile carriers will continue to be consulted during the extension period as part of negotiations for an appropriate test regime.
Details of the amendment determination are in attachment 1.
ATTACHMENT 1
Notes on the instrument
Section 1 Name of Determination
Section 1 provides for the name of the Determination.
Section 2 Commencement
Section 2 provides for the commencement of the Determination.
Section 3 Amendment of Radiocommunications (Prohibited Devices) (AFP testing of mobile telephone jamming devices) Exemption Determination 2006
Section 3 provides that Schedule 1 amends the Radiocommunications (Prohibited Devices) (AFP testing of mobile telephone jamming devices) Exemption Determination 2006.
Schedule 1 Amendments
Item 1 Section 3
Substitutes section 3 to provide that the Determination ceases to have effect at the end of 15 months after the day on which it commences.
Item 2 Section 4, after definition of Telstra (shielded room) testing facility
Substitutes the definition of trial period so that the trial period is extended by 3 months to be concurrent with the amended day on which the Determination ceases.
Overview
The Radiocommunications (Prohibited Devices) (AFP testing of Mobile Telephone Jamming Devices) Exemption Amendment Determination 2007 was enacted to extend the exemption period for the Australian Federal Police (AFP) and Telstra employees to test mobile telephone jamming devices. This amendment to the Radiocommunications (Prohibited Devices) (AFP testing of mobile telephone jamming devices) Exemption Determination 2006 was made under the authority of the Australian Communications and Media Authority (ACMA) as outlined in the Radiocommunications Act 1992. The amendment extends the cessation date of the original exemption by three months, allowing additional time for the AFP and Telstra to negotiate an appropriate testing regime with other mobile carriers. The objective of this amendment is to facilitate effective testing of jamming devices to prevent unauthorised mobile telephone use by inmates, including suspected or convicted terrorists, in prisons. The extension aims to address concerns raised by state and territory corrections authorities regarding the use of mobile telephones in correctional facilities.
Scope and Application
The Radiocommunications (Prohibited Devices) (AFP testing of Mobile Telephone Jamming Devices) Exemption Amendment Determination 2007 applies to the Australian Federal Police and employees of Telstra, specifically in relation to the testing of mobile telephone jamming devices in a shielded room testing facility. The Amendment Determination extends the cessation date of the original exemption, which was established to facilitate the testing of these devices by Telstra, by three months to 15 months from the date of commencement. This extension aims to allow further negotiation between the AFP, Telstra, and other mobile carriers to establish a suitable test regime. The Amendment Determination is an instrument made under subsection 27(2) of the Radiocommunications Act 1992 and is subject to disallowance under the Legislative Instruments Act 2003. This amendment does not affect the geographic or jurisdictional reach of the original Determination, which is focused on the specific functions of the AFP and Telstra within Australia. The Amendment Determination does not introduce new exclusions or exemptions beyond those in the original Determination, and there are no stated thresholds for its application. The scope of the Act is extended through the Amendment Determination to allow continued testing of mobile telephone jamming devices by the relevant parties.
Key Provisions
The Radiocommunications (Prohibited Devices) (AFP testing of Mobile Telephone Jamming Devices) Exemption Amendment Determination 2007 primarily serves to extend the duration of the original Radiocommunications (Prohibited Devices) (AFP testing of mobile telephone jamming devices) Exemption Determination 2006, which was initially set to cease on 11 May 2006. The amendment extends the period by which the original determination remains in effect by an additional three months, bringing the new cessation date to 15 August 2007. This extension allows the Australian Federal Police (AFP) and Telstra to continue their testing activities of mobile telephone jamming devices at Telstra's shielded room testing facility. Section 3 of the Amendment Determination specifies the changes to the original determination, including the extension of the trial period by three months to align with the new cessation date.
Under this legislation, the Act imposes specific obligations on the AFP and Telstra. The AFP is granted exemption from certain provisions of the Radiocommunications Act 1992 (Act) to facilitate testing of mobile telephone jamming devices, while Telstra is allowed to conduct these tests within its shielded room testing facility. The obligation lies on both the AFP and Telstra to ensure that their activities comply with the terms set out in the amended determination, which includes the extension of the trial period to 15 months from the commencement date of the original determination.
The Amendment Determination does not introduce new offences or penalties but rather extends the period for which the original exemption determination is in effect. However, any breach of the original determination's terms could potentially lead to enforcement actions under the Radiocommunications Act 1992. The maximum penalties for contravening the provisions of the Radiocommunications Act can include substantial fines and, in some cases, imprisonment. For example, under section 190 of the Act, a person who contravenes a notification prohibiting the operation or supply of specified devices could be liable for a fine of up to 5,000 penalty units, or in the case of a corporation, up to 25,000 penalty units. Additionally, officers of the AFP and Telstra must ensure that their activities are conducted in strict compliance with the terms of the determination to avoid any potential legal repercussions.