EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Public Mobile Telecommunications Services Surveillance Device) Exemption Determination 2011
Radiocommunications Act 1992
Purpose
The purpose of the Radiocommunications (Public Mobile Telecommunications Services Surveillance Device) Exemption Determination 2011 (the Exemption Determination) is to exempt from Parts 3.1, 4.1 and 4.2 of the Radiocommunications Act 1992 (the Act), in certain specified circumstances, the use, operation, possession or supply by a person performing a function or duty in relation to the New South Wales Crime Commission (NSWCC), of a data surveillance device designed to search for, identify, locate and track items used in the delivery of public mobile telecommunications services (PMTS surveillance device).
Legislative Provisions
The Exemption Determination is made under subsection 27(2) of the Act.
Subsection 27(2) of the Act allows the Australian Communications and Media Authority (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. Subsection 27(2) allows the ACMA to make an exemption that applies generally or that applies only in the circumstances specified in the determination.
Persons who perform functions or duties in relation to the NSWCC are a class of persons to whom section 27 applies (subparagraph 27(1)(bb)(i)).
The Act is the legislation under which the ACMA regulates radiofrequency spectrum in Australia. In particular, the Act requires that radiocommunications devices must:
- be licensed (Chapter 3);
- meet certain standards and other technical requirements (Part 4.1); and
- not be used in a manner which causes disruption or unacceptable interference to other radiocommunications services (Part 4.2).
The Exemption Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA).
Background
The NSWCC sought an exemption determination under section 27 of the Act so that the NSWCC could use the PMTS surveillance device in the course of its criminal investigations.
The ACMA considers that an exemption determination of this kind is justified because of the low interference potential of the PMTS surveillance device and the public benefit in facilitating the law enforcement capabilities of the NSWCC.
Consultation
Section 17 of the LIA required the ACMA to be satisfied, before making this Exemption Determination, that any consultation it considered to be appropriate, and reasonably practicable to undertake, has been undertaken.
In accordance with section 17 of the LIA, a draft of the Exemption Determination was circulated to organisations with expertise in law enforcement and surveillance matters including the Telecommunications and Surveillance Branch of the Attorney General’s Department, Federal, State and Territory police forces and the Australian Crime Commission. The Department of Prime Minister & Cabinet, the Office of the Australian Information Commissioner and the Office of the Privacy Commissioner (New South Wales) were consulted on the privacy impacts of the use of the PMTS surveillance device. Some of the submissions received in response made recommendations to the NSWCC in relation to the privacy issues associated with information collected through use and operation of the PMTS surveillance device.
The ACMA is satisfied that the measures built into the Exemption Determination in relation to the use or operation of the PMTS surveillance device for investigative activities provide sufficient assurance that the device will only be used or operated for appropriate purposes. In particular, the Exemption Determination stipulates that in circumstances where a PMTS surveillance device is being used or operated by the NSWCC for investigative purposes, the use or operation must be either:
- authorised by a surveillance device warrant under the Surveillance Devices Act 2007 of New South Wales; or
- not unlawful, nor an offence, nor corrupt conduct by reason of section 16 of the Law Enforcement (Controlled Operations) Act 1997 of New South Wales.
The draft Exemption Determination was also circulated to the public mobile telecommunications service (PMTS) carriers who are likely to be affected by an exemption in its terms.
Consultation with PMTS carriers occurred over several months. The PMTS carriers sought additional technical information about the PMTS surveillance device to understand its potential impact on PMTS networks. The ACMA worked with the NSWCC and the PMTS carriers to provide additional technical information to the PMTS carriers. The PMTS carriers favoured the inclusion in the Exemption Determination of a requirement for the NSWCC to notify use of the device to the PMTS carriers. The ACMA decided against the inclusion of such a requirement because the ACMA has assessed the interference potential of the PMTS surveillance device as low and because there are other means by which such issues might be addressed – such as by direct agreement between the NSWCC and the PMTS carriers.
Regulation Impact Statement
The ACMA obtained advice from the Office of Best Practice Regulation (OBPR) to the effect that the Exemption Determination will have a minor or machinery impact on businesses or the economy. For those reasons the OBPR determined that no further analysis in the form of a Business Cost Calculator Report or Regulation Impact Statement was required. The OBPR reference number is ID 11646.
Detailed description of the Instrument
Details of the Exemption Determination are set out in Attachment 1.
Attachment 1
NOTES ON SECTIONS
Section 1 Name of Determination
Section 1 provides that the name of the instrument is the Radiocommunications (Public Mobile Telecommunications Services Surveillance Device) Exemption Determination 2011.
Section 2 Commencement
Section 2 provides that the Exemption Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Definitions
Section 3 defines terms used throughout the Exemption Determination. Some definitions of note are:
- NSWCC investigation has the same meaning as ‘investigation’ in the New South Wales Crime Commission Act 1985 of New South Wales (the NSWCC Act). An ‘investigation’ under the NSWCC Act means an investigation by the NSWCC of a matter referred to it under paragraph 25(1)(a) or (a1) of that Act, by the NSWCC Management Committee which consists of the NSW Minister for Police, the NSW Commissioner of Police, the Chair of the Board of the Australian Crime Commission and the Commissioner of the NSWCC.
- NSWCC staff means staff as provided for under subsection 32(1) of the NSWCC Act. Thus, amongst others, staff employed by the NSWCC and persons engaged by the NSWCC as consultants or to perform services for it, are included in the definition.
- PMTS surveillance device means a data surveillance device designed to search for, identify, locate and track items used in the delivery of public mobile telecommunications services.
- Public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.
Section 4 Exemption in relation to certain investigative activities by NSWCC staff
Section 4 exempts an act or omission in relation to the use, operation, possession or supply of a PMTS surveillance device by NSWCC investigators, from Parts 3.1, 4.1 and 4.2 of the Act, in the circumstances specified in subsection (3).
The circumstances set out in subsection 4(3) impose safeguards in that the act must be done or the omission must occur in the course of, and for the purposes of the NSWCC investigation and must be either authorised by a surveillance devices warrant or must not be unlawful or an offence or corrupt conduct by reason of section 16 of the Law Enforcement (Controlled Operations) Act 1997 of New South Wales.
A ‘NSWCC investigator’ is defined for the purpose of this section as a member of the NSWCC staff, performing a function or duty in relation to the NSWCC and who has been trained in the use of the PMTS surveillance device. A ‘surveillance device warrant’ (as defined in section 3 of the Exemption Determination) means a warrant issued under Division 2 of Part 3 or subsection 35(3) of the Surveillance Devices Act 2007 of New South Wales.
Section 5 Exemption in relation to the provision of technological expertise by NSWCC staff
Section 5 exempts acts or omissions by NSWCC technicians in relation to the use, operation, possession or supply of a PMTS surveillance device from Parts 3.1, 4.1 and 4.2 of the Act, in the course of providing technological expertise to the Australian Crime Commission, the Australian Federal Police or the police force of a State or Territory in certain circumstances. These circumstances include that the provision of the technological expertise has been approved by the Commissioner or an Assistant Commissioner of the NSWCC and falls within the scope of the function conferred on the NSWCC by paragraph 6(1)(d) of the NSWCC Act. Paragraph 6(1)(d) of the NSWCC Act provides that one of the functions of the NSWCC is to disseminate investigatory, technological and analytical expertise to such persons or bodies as the NSWCC thinks fit.
A ‘NSWCC technician’ is defined for the purposes of this section as a member of the NSWCC staff, performing a function or duty in relation to the NSWCC and who has been trained in the use of the PMTS surveillance device.
Section 5 contemplates the provision of technological expertise by the NSWCC to law enforcement agencies operating within and outside the jurisdiction of New South Wales. The note to section 5 reflects that there are laws in those other jurisdictions that will govern the use or operation of the PMTS surveillance device by the NSWCC in those jurisdictions, and that those laws must be complied with.
Section 6 Exemption in relation to certain training activities involving NSWCC staff
Section 6 exempts the acts or omissions of a ‘NSWCC trainee’ and a ‘NSWCC instructor’ in relation to the use, operation, possession or supply of a PMTS surveillance device from Parts 3.1, 4.1 and 4.2 of the Act where the act is done, or the omission occurs, in the course of a NSWCC instructor training a NSWCC trainee in the use or operation of the PMTS surveillance device.
A ‘NSWCC trainee’ is defined for the purposes of this section as a member of the NSWCC staff, performing a function or duty in relation to the NSWCC.
A ‘NSWCC instructor’ is defined for the purposes of this section as a person who provides training to a NSWCC trainee and who is performing a function or duty in relation to the NSWCC.
This section recognises that the NSWCC will need to develop organisational expertise in the use of the PMTS surveillance device and will require an exemption from Parts 3.1, 4.1 and 4.2 of the Act to engage in training activities.
Section 7 Exemption in relation to certain maintenance activities by NSWCC staff
Section 7 exempts acts or omissions by a ‘NSWCC maintenance officer’ from Parts 3.1, 4.1 and 4.2 of the Act where the act is done or the omission occurs in the course of undertaking maintenance or testing of the PMTS surveillance device.
A ‘NSWCC maintenance officer’ is defined for the purposes of this section as a member of the NSWCC staff, performing a function or duty in relation to the NSWCC and who has been trained in the use of the PMTS surveillance device.
Section 8 Exemption in relation to certain ancillary activities by suppliers
Section 8 exempts certain acts or omissions by a ‘supplier’ for the purposes of supplying a PMTS surveillance device to the NSWCC, from Parts 3.1, 4.1 and 4.2 of the Act. The acts or omissions must be in relation to the supply or possession of the PMTS surveillance device. The exemption does not extend to the use or operation of the PMTS surveillance device by the supplier.
A ‘supplier’ is defined for the purposes of the section as a person who has a written agreement with the NSWCC for the supply of the PMTS surveillance device by that person to the NSWCC and who is performing a function or duty in relation to the NSWCC. For the exemption to apply, the act must be done or the omission must occur in accordance with the written agreement and not involve the use or operation of the PMTS surveillance device by the supplier.