Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010

EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority

Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010

Radiocommunications Act 1992

Purpose

The purpose of the Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010 (the Determination), is to specify the circumstances in which members of a class of persons referred to in paragraph 27(1)(b) of the Radiocommunications Act 1992 (the Act), are able to acquire and use electronic counter measures (ECM) devices, for the purposes of bomb disposal activities.

ECM devices are a range of electrical or electronic devices designed to disrupt or deceive radar, sonar and other detection systems like infrared and laser. ECM includes the use of, but is not limited to, mobile phone jammers.

The Determination grants an exemption from Parts 3.1, 4.1 and 4.2 of the Act for persons performing a function or duty in relation to the Australian Federal Police or the police force of a State and Territory (police force). The exemption is made under subsection 27(2) and extends to all parts of the Act in respect of which it is possible to grant an exemption under the subsection. If not for the exemption, the supply, possession and operation of ECM devices would be unlawful under the Act because of the high interference potential of such devices. Furthermore, the supply, possession or operation of certain devices is expressly prohibited under the Act.[1]  Section 190 of the Act provides that the ACMA may prohibit the operation or supply, or possession for the purpose of operation or supply, of a device considered to have been designed to deliberately disrupt or interfere with legitimate radiocommunications services. Section 189 of the Act provides that it is an offence to knowingly possess, supply, or operate a prohibited device without reasonable excuse.

The Determination is limited to persons performing a function or duty in relation to a police force operating in specified circumstances. The circumstances include bomb disposal emergencies, maintenance of equipment, training and evaluation, and research and development. The Determination also extends to third parties importing, supplying, possessing and transporting ECM devices in specified circumstances.

The Determination will enable police forces to operate ECM equipment during a bomb disposal emergency without recourse to the defensible action provisions available under the Act. Further, the Determination will enable police forces to access or allocate resources to:

• obtain ECM devices;
• train personnel to operate and maintain ECM devices;
• develop efficient and effective bomb disposal response capability;
• conduct research and development of devices in response to emerging threats; and
• provide greater protection for bomb disposal personnel.

Legislative Provisions

The Act is the primary legislation under which the ACMA regulates radiofrequency spectrum in Australia. In general the Act requires that the use of radiocommunications devices:

• be licensed (Part 3.1);
• meet certain standards and other technical requirements (Part 4.1); and
• be conducted so as to avoid causing disruption or unacceptable interference to other radiocommunications services (Part 4.2).

Part 3.1 of the Act identifies certain actions as offences. For instance, a person must not, without reasonable excuse, operate an unlicensed radiocommunications device, nor have such a device in their possession for any reason other than supply. This also applies to a person who has control over a device, even if another person actually possesses it. Section 50 of the Act provides for civil remedies where operation of a radiocommunications device, not in accordance with any licence, causes interference to radiocommunications provided under a spectrum licence.

Part 4.1 of the Act provides for standards and other technical regulation. It imposes prohibitions relating to non-standard devices whilst providing exceptions to those prohibitions. The Part enables the ACMA to make standards for devices and the radio emissions they produce, and to create requirements for compliance labelling. Division 8 of Part 4.1 enables devices to be prohibited because of their effect on radiocommunications and provides penalty provisions for the operation of a prohibited device.

Part 4.2 provides that certain acts are offences under the Act. The offences include causing substantial interference to radiocommunications services, more specifically interference to the radiocommunications of certain emergency services, and interference likely to endanger safety. Other offence provisions relate to the transmission of false information or information likely to cause an explosion.

Subsection 27(2) of the Act allows the ACMA to determine that acts or omissions by members of a class of persons 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. The ACMA has made the Determination under this subsection to exempt persons performing a function or duty in relation to a police force from those parts of the Act, for the purposes of importing, possessing, supplying, transporting and operating ECM devices in specified circumstances.

The specified circumstances in which police forces are exempt relate to bomb disposal activities, such as dealing with a bomb disposal emergency, maintenance of ECM devices, bomb disposal training and evaluation, and research and development. The activities must occur in accordance with the Radiocommunications Advisory Guidelines (Use of Electronic Counter Measures for Bomb Disposal Activities) 2010 (the Advisory Guidelines) in order for the exemption to apply.

Section 262 of the Act allows the ACMA to make written advisory guidelines about any aspect of radiocommunications or radio emissions, including interference with radiocommunications. The ACMA has made the Advisory Guidelines in accordance with this section. The Advisory Guidelines, which complement the Determination, provide additional information and guidance by expanding upon the requirements set out in the Determination. 

Section 314A of the Act provides that instruments made under the Act may provide for matters by reference to other instruments as in force from time to time. This Determination must therefore be read in conjunction with the Advisory Guidelines as they exist from time to time.

Both the Determination and the Advisory Guidelines are disallowable instruments for the purposes of the Legislative Instruments Act 2003 (the LIA).

Background

In 1999, the then Australian Communications Authority (the ACA), declared mobile telephone jammers in certain frequency bands to be prohibited under section 190 of the Act. The Notification that the Australian Communications and Media Authority prohibits the operation or supply, or possession for the purpose of operation or supply, of specified devices (the Declaration), makes it an offence to operate or supply, or possess for the purposes of operation or supply, such a device. The Declaration was made on the basis that mobile phone jammers are designed to cause significant interference to radiocommunications and have no legitimate purpose.

In recent years, a number of terrorist incidents worldwide have involved the remote detonation of bombs. Law enforcement agencies view ECM (of which a mobile phone jammer is one example), as useful tools to counteract this threat and protect bomb disposal personnel from harm.

Following an approach from the Department of the Prime Minister and Cabinet (PM&C), the ACMA has worked closely with carriers, other critical radiocommunications spectrum users and law enforcement agencies to develop arrangements that will support bomb disposal operations whilst minimising the potential for interference to legitimate communications services.

In making the Determination, the ACMA balanced two competing priorities, both of which are in the public interest. The ACMA took into account the requirements of effective interference management to protect the operations of licensed radiocommunications services, whilst bearing in mind the necessity to ensure public safety by preventing the illegal use of (licensed and unlicensed) radiocommunications to cause potential harm and loss of life.

Operation of the Determination

The Determination sets out the circumstances in which specified persons can operate an ECM device and will be exempt from Parts 3.1, 4.1 and 4.2 of the Act. The provisions introduced by the Determination include:

Section 3 Definitions

Section 3 defines terms used throughout the Determination. The following terms are worthy of note:

• advisory guidelines are the Advisory Guidelines made by the ACMA under section 262 of the Act, namely the Radiocommunications Advisory Guidelines (Use of Electronic Counter Measures for Bomb Disposal Activities) 2010. The Advisory Guidelines inform specified persons seeking to rely on the Determination, of the acts and omissions the ACMA will consider to be exempt, and specify appropriate procedures and protocols in relation to the possession, supply and operation of ECM devices.

• approved ECM procedures are the written procedures of a police force which apply to matters such as procurement, handling and operation of ECM devices. The procedures need not specifically mention ECM devices by name. For example, where an ECM device is classified, procedures relating to classified devices would be considered relevant for the purposes of the Determination.
• improvised explosive device is an internationally recognised term used to describe illegal bombs. (see NATO Glossary of Terms and Definitions).[2]

Section 4 Exemption for bomb disposal activity - ECM operators

Section 4 exempts ECM operators from Parts 3.1, 4.1 and 4.2 of the Act, when performing an act or an omission, in the circumstances specified. Those circumstances are that the act is done, or the omission occurs:

• in the circumstances specified in sections 7 (bomb disposal emergencies), 8 (maintenance), 9 (training and evaluation) or 10 (research and development); and
• consistently with the Advisory Guidelines and any approved ECM procedures in force at the time; and
• in accordance with the notification requirements in sections 11 and 12.

The section also exempts third parties in the same specified circumstances, when acting on behalf of an ECM operator. An additional requirement for third parties is that the act or omission occurs whilst under the direct supervision of an ECM operator.

Section 5 Exemption for bomb disposal activity - trainee ECM operators

Section 5 exempts trainee operators from Parts 3.1, 4.1 and 4.2 of the Act, when an act is done, or an omission occurs, in training related circumstances.

Section 6 Exemption for persons importing, possessing, supplying and transporting an ECM device

Section 6 specifies the circumstances in which a person is exempt from Parts 3.1, 4.1 and 4.2 of the Act for the purposes of importing, possessing, supplying and transporting an ECM device.

Section 7  Circumstance – bomb disposal emergency

Section 7 specifies when a bomb disposal emergency circumstance exists.

Section 8  Circumstance – maintenance of equipment

Section 8 specifies when a maintenance circumstance exists.

Section 9  Circumstance – bomb disposal training and evaluation

Section 9 specifies when a bomb disposal training and evaluation circumstance exists.

Section 10  Circumstance – research and development

Section 10 specifies when a research and development circumstance exists and the activities which may be carried out by an ECM operator during research and development of an ECM device.

Section 11 Notifying critical radiocommunications spectrum users

Section 11 specifies that the police officer in charge has the responsibility to ensure all reasonable steps are taken (in either a bomb disposal emergency or other circumstance) to minimise potential interference to radiocommunications when operating the ECM device, and to notify potentially affected critical radiocommunications spectrum users about the operation of the device. It is important to note that those ‘reasonable steps’ must be taken consistently with the Advisory Guidelines.

Section 12 Notifying the Australian Communications and Media Authority

Section 12 specifies that the police officer in charge has responsibility to ensure all reasonable steps are taken to notify the ACMA of the operation of, or intended operation of, an ECM device, in either an emergency bomb disposal circumstance or in other circumstances.

Consultation

In accordance with section 17 of the LIA, the ACMA conducted limited formal consultation with the Communications Security and Enforcement Roundtable (CSER) Working Group and selected critical infrastructure spectrum users (as identified via the Trusted Information Sharing Network for Critical Infrastructure Protection). The period of consultation began on 13 November 2009 and ended on 18 December 2009. The ACMA formed the view that wider consultation with the general public was not appropriate, having regard to the circumstances in which ECM devices will be used.

The ACMA received ten submissions following the consultation process. All of the submissions supported the making of the Determination and the associated Advisory Guidelines. Some submissions offered suggestions on how the Determination might be amended to provide greater certainty in some areas, or asked questions to clarify the interplay between the Determination and the Advisory Guidelines. Where appropriate these suggestions were incorporated into the Determination and Advisory Guidelines.

Regulation Impact

ACMA obtained advice from its SES contact officer for the Government’s regulation impact analysis arrangements that the Determination has no or low impact. 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 exemption reference number is ACMA 090.

Attachment

Further details about the Determination are in the Attachment.

ATTACHMENT

NOTES ON SECTIONS

Section 1 Name of Determination

Section 1 provides for the citation of the Determination as the Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010.

Section 2 Commencement

Section 2 provides for the Determination to commence on the day after it is registered.

Section 3 Definitions

Section 3 defines the terms used in the Determination.

Section 4 Exemption for bomb disposal activity – ECM operators

Section 4 exempts an ECM operator and a person acting on behalf of an ECM operator from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in the section.

Section 5 Exemption for bomb disposal activity – trainee ECM operators

Section 5 exempts a trainee ECM operator from Parts 3.1, 4.1 and 4.2 of the Act.

Section 6 Exemption for persons importing, possessing, supplying and transporting an ECM device

Section 6 exempts a person importing, possessing, supplying or transporting an ECM device from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in the section.

Section 7  Circumstance – bomb disposal emergency

Section 7 sets out when a bomb disposal emergency circumstance exists.

Section 8  Circumstance – maintenance of equipment

Section 8 sets out when a maintenance circumstance exists.

Section 9  Circumstance – bomb disposal training and evaluation

Section 9 sets out when a bomb disposal training and evaluation circumstance exists.

Section 10 Circumstance – research and development

Section 10 sets out when a research and development circumstance exists.

Section 11 Notifying critical radiocommunications spectrum users

Section 11 sets out requirements concerning notification to critical radiocommunications spectrum users who are, or may be, affected by the proposed or actual operation of an ECM device.

Section 12  Notifying the Australian Communications and Media Authority

Section 12 sets out the requirements of notification to the ACMA about any proposed or actual operation of an ECM device.

[1] Such as ‘mobile phone jammers’ under the Notification that the Australian Communications and Media Authority prohibits the operation or supply, or possession for the purpose of operation or supply, of specified devices

[2] NATO, Glossary of Terms and Definitions, viewed 1 March 2010, http://www.nato.int/docu/stanag/aap006/aap6.htm