Radiocommunications (Testing and Field Trial by Corrective Services NSW of PMTS Jamming Devices at Goulburn Correctional Complex) Exemption Determination 2016

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2016L01286 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Radiocommunications Act 1992

Radiocommunications (Testing and Field Trial by Corrective Services NSW of PMTS Jamming Devices at Goulburn Correctional Complex) Exemption Determination 2016

 

Purpose

The purpose of the Radiocommunications (Testing and Field Trial by Corrective Services NSW of PMTS Jamming Devices at Goulburn Correctional Complex) Exemption Determination 2016 (the Determination) is to allow a trial of public mobile telecommunications service jamming devices (PMTS jamming devices) by Corrective Services NSW (CSNSW) at the Goulburn Correctional Complex.

The operation or supply of a PMTS jamming device, and the possession of a PMTS jamming device for the purposes of its operation or supply, are prohibited under Part 4.1 of the Radiocommunications Act 1992 (the Act). The Determination, which is made, in part, under subsection 27(2) of the Act, exempts acts or omissions relating to the use, operation, possession or supply of certain PMTS jamming devices by certain persons who perform functions or duties in relation to CSNSW from Parts 3.1, 4.1 and 4.2 of the Act, which deal respectively with offences relating to unlicensed radiocommunications, use of non-compliant equipment that uses or affects radio emissions, and offences related to radio emissions.

Legislative Provisions

Subsection 27(2) of the Act allows the Australian Communications and Media Authority (the 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.

Under paragraph 27(1)(be) of the Act, the ACMA may, by written determination, determine that a body that performs functions related to the investigation, prevention or prosecution of serious crime, or of corruption (whether or not the body also performs other functions), is a body to which section 27 applies.

Determinations made under paragraph 27(1)(be) and subsection 27(2) of the Act are legislative instruments for the purposes of the Legislation Act 2003 (Cth) (the LA).

Background

The operation or supply, or possession for the purposes of operation or supply, of a PMTS jamming device is prohibited under section 189 of the Act (see the Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011 (the Declaration) made under subsection 190(1) of the Act).

In 2012, the ACMA made the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Determination 2012, at the request of CSNSW, to allow a field trial of mobile phone jammers at Lithgow Correctional Centre, NSW. This trial was extended until 1 November 2018 by way of the Radiocommunications (Field Trial by Corrective Services NSW of PMTS Jamming Devices at Lithgow Correctional Centre) Exemption Determination 2015. The trial at the Lithgow Correctional Centre has demonstrated that a mobile phone jammer can be operated in a correctional facility without causing interference to access to public mobile telecommunications services (PMTS) outside the facility. However, the Lithgow Correctional Centre is relatively isolated from roads, businesses and houses.

On 25 June 2015, CSNSW proposed to the ACMA that another trial be conducted at Goulburn Correctional Complex, a minimum and maximum security institution for males in the Southern Tablelands of New South Wales. The purpose of this trial is to assess the risk of the operation of a mobile phone jammer in a correctional facility in a location with a higher population density than the area around the Lithgow Correctional Centre. This will contribute to decision-making on the feasibility of more widespread use of jammers in correctional facilities.

Operation

An exemption under subsection 27(2) may only be made in respect of a class of persons to whom section 27 applies. Section 27 applies to a person performing a function or duty in relation to a body, or kind of body, listed in subsection 27(1). CSNSW is not one of the bodies listed in subsection 27(1) of the Act. CSNSW is, however, a body that ‘performs functions related to the investigation, prevention or prosecution of serious crime, or of corruption (whether or not the body also performs other functions)’ (paragraph 27(1)(be)) and may, therefore, fall within the scope of section 27 if the ACMA makes a determination covering CSNSW, in writing, for the purposes of that paragraph.

The Determination:

  • provides, for the purposes of paragraph 27(1)(be) of the Act, that CSNSW is a body to which section 27 of the Act applies; and
  • exempts, from Parts 3.1, 4.1 and 4.2 of the Act, any act or omission by certain staff or contractors of CSNSW relating to the use, operation, possession or supply of certain PMTS jamming devices provided that the act or omission occurs in the circumstances set out in the Determination.

The Determination commences on the day after it is registered and expires two years after the ACMA gives a notice to CSNSW that it is satisfied with a report provided by CSNSW under paragraph 7(3)(a) of the Determination, which effectively limits the duration of the field trial to a maximum of two years.

Further details about the Determination, including the circumstances in which the exemption will apply, are set out in the Notes on Sections in Attachment A.

Consultation

From 7 March to 8 April 2016, in accordance with section 17 of the LA, the ACMA consulted directly with three licensed mobile telecommunications carriers (the carriers), the Australian Mobile Telecommunications Association (AMTA) and CSNSW in respect of its proposal to make the Determination. Following this targeted consultation, the ACMA publicly consulted on the draft Determination between 5 May and 16 June 2016. The ACMA published a draft version of the Determination and a consultation paper on the proposed trial on its website, and alerted local Goulburn media of the consultation.

Regulatory Impact

The Office of Best Practice Regulation (OBPR) was consulted and advised that the proposed regulatory change is minor or machinery in nature and that no further regulatory impact analysis is required. The OBPR reference number is ID 17056.

 

 

Documents Incorporated in the Determination by Reference

The following Acts, legislative instruments and other instruments are incorporated by reference or otherwise mentioned in the Determination:

  • the Radiocommunications Act 1992;
  • the Acts Interpretation Act 1901;
  • the Crimes (Administration of Sentences) Act 1999 (NSW);
  • the Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011;
  • the Legislation Act 2003;
  • the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015;
  • the Telecommunications Act 1997;
  • a map depicting specified areas of the Goulburn Correctional Complex for the purpose of the definition of ‘field trial zone’ in subsection 4(1) of the Determination;
  • a written agreement between the ACMA and CSNSW relating to the kind of PMTS jamming device for the purpose of the definition of ‘nominated PMTS jamming device’ in subsection 4(1) of the Determination;
  • a written notification from CSNSW, pursuant to paragraph 6(3)(a) of the Determination, of the date upon which CSNSW intends to commence testing;
  • a written agreement between the ACMA and CSNSW relating to data and information relating to testing to be included in CSNSW’s report pursuant to subparagraph 7(3)(a)(ii) of the Determination; and
  • a written notification indicating that the ACMA has received, and is satisfied with, the report provided by CSNSW pursuant to paragraph 7(3)(b) of the Determination.

The Commonwealth Acts and the legislative instruments referenced in the Determination can be found on the Australian Government’s Federal Register of Legislation website at http://www.legislation.gov.au. The Crimes (Administration of Sentences) Act 1999 (NSW) is a New South Wales Act of Parliament and can be found at http://www.legislation.nsw.gov.au.

References to Acts and legislative instruments are to the Act or legislative instrument as in force from time to time in accordance with section 10 of the Acts Interpretation Act 1901, section 13(1) of the LA and section 314A of the Act. The references to the written agreements and the map depiction above are to those instruments as existing from time to time, even if those instruments are not in existence at the time of the making of the Determination,  in accordance with subsection 314A(2) of the Act.

The written agreements, notifications and the map referred to above will be published on the ACMA’s website (www.acma.gov.au) or will otherwise be made available by the ACMA upon request.

Statement of Compatibility with Human Rights

A statement of compatibility with human rights for the purpose of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment B.


ATTACHMENT A

NOTES ON SECTIONS

Section 1 Name of Determination

Section 1 provides for the citation of the Determination as the Radiocommunications (Testing and Field Trial by Corrective Services NSW of PMTS Jamming Devices at Goulburn Correctional Complex) Exemption Determination 2016.

Section 2 Commencement

The Determination will commence the day after it is registered.

Section 3 Expiry

The Determination will expire two years after the day that the ACMA publishes the written notification given to CSNSW under paragraph 7(3)(b) indicating that the ACMA has received and is satisfied with the report provided by CSNSW under paragraph 7(3)(a). The purpose of the expiry provision is to limit the duration of the field trial to a maximum of two years. In circumstances where CSNSW does not provide the ACMA with a report pursuant to paragraph 7(3)(a), or the ACMA does not notify CSNSW in accordance with paragraph 7(3)(b), the Determination will not facilitate the field trial, but will remain in force until it is repealed by the ACMA, or otherwise sunsets in accordance with Part 4 of Chapter 3 of the LA.

Section 4 Definitions

Section 3 defines terms used in the Determination including ‘designated frequencies’, ‘testing participant’, ‘field trial participant’, ‘field trial zone’ and ‘nominated PMTS jamming device’.

Designated frequencies means any of the frequency bands used for the supply of a public mobile telecommunications service. Testing participant and field trial participant are defined in subsection 6(2) and subsection 7(2) of the Determination, respectively, to include CSNSW staff members and contractors and their employees who are performing functions or duties in relation to CSNSW.

The field trial zone is the area of the field trial within the Goulburn Correctional Complex  as depicted on a map agreed in writing by the ACMA and CSNSW.

The nominated PMTS jamming device is the PMTS jamming device that will be used in the field trial as agreed in writing between CSNSW and the ACMA.

Section 5 Corrective Services NSW is a body for the purpose of paragraph 27(1)(be) of the Act

Section 5 contains a written determination made by the ACMA for the purposes of paragraph 27(1)(be) of the Act. It has the effect that CSNSW is included within the scope of section 27 of the Act. This enables the ACMA to make an exemption under subsection 27(2) in relation to persons performing functions or duties in relation to CSNSW, including the staff and contractors described in subsections 6(2) and 7(2) of the Determination.  

 

Section 6 Exemption in relation to testing

Subsection 6(1) provides that any act or omission by a testing participant in relation to the use, operation, supply or possession of a PMTS jamming device is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection 6(3).

Subsection 6(2) defines a testing participant for the purposes of subsection 6(1) as a person performing a function or duty in relation to CSNSW and who is either a CSNSW staff member, a person who has a contract with CSNSW in relation to the testing, or a person who is employed or engaged by a person who has a contract with CSNSW in relation to the testing.

Subsection 6(3) specifies all the circumstances that must exist for acts or omissions of testing participants relating to the use, operation, possession or supply of a PMTS jamming device to be exempt from Parts 3.1, 4.1 and 4.2 of the Act.

Paragraph 6(3)(a) requires CSNSW to notify the ACMA in writing of the date on which it intends to commence testing, before the commencement of testing. The ACMA must publish the notice provided by CSNSW on its website. Paragraph 6(3)(b) specifies that any act or omission must be done for the purposes of testing, which is a defined concept (see section 4). Paragraph 6(3)(c) specifies that a carrier liaison agreement must be in place with each of the relevant carriers in relation to the testing.

One of the circumstances that must exist is that the ACMA has not notified CSNSW in writing that all testing participants are excluded from relying on the Determination for a specified period, or if the ACMA has so notified CSNSW, that the period specified or any extension has expired or the notice has been withdrawn (see paragraph 6(3)(d)). The ACMA may decide to notify CSNSW that testing participants are excluded from relying on the Determination for a variety of reasons, including where the ACMA has concerns about safety or potential interference issues or is unable to obtain or verify sufficient details about the operation of the PMTS jamming devices to alleviate these concerns. Examples of the kinds of situations that might raise such concerns may include:

  • threats to public safety resulting from the operation of the PMTS jamming devices;
  • monitoring and reporting arrangements regarding the impact of the testing on the operation of mobile telecommunications networks are deficient;
  • harmful emissions occur outside the field trial zone;
  • public complaints are received about the operation of the testing that require further investigation before the trial can continue;
  • requests from the ACMA for information and data relating to the trial are not met; or
  • requests from the ACMA for particular testing to be conducted on the operation of the jammer or emission levels are not met.

Paragraph 6(3)(e) specifies that a PMTS device used for testing must only transmit on base transmit frequencies. Subparagraph 6(3)(f)(i) specifies that the PMTS device may only be operated for the purpose of causing harmful interference on designated frequencies in the field trial zone. Subparagraph 6(3)(f)(ii) specifies that the PMTS jamming device must comply with the electromagnetic radiation requirements in Part 3 of the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015 as if the PMTS jamming device were a transmitter operated under a licence to which that Part applies.

Section 7 Exemption in relation to the field trial

Subsection 7(1) provides that any act or omission by a field trial participant in relation to the use, operation, supply or possession of a nominated PMTS jamming device is exempt from Parts 3.1, 4.1 and 4.2 of the Act in the circumstances specified in subsection 7(3).

Subsection 7(2) defines a field trial participant for the purposes of subsection 7(1) as a person performing a function or duty in relation to CSNSW and who is either a CSNSW staff member, a person who has a contract with CSNSW in relation to the conduct of the field trial, or a person who is employed or engaged by a person who has a contract with CSNSW in relation to the conduct of the field trial.

Subsection 7(3) specifies all the circumstances that must exist for acts or omissions of field trial participants relating to the use, operation, possession or supply of a PMTS jamming device to be exempt from Parts 3.1, 4.1 and 4.2 of the Act.

Paragraph 7(3)(a) provides that CSNSW must provide the ACMA with a report within 4 weeks after the commencement of testing, and prior to the commencement of the field trial. The report must include:

  • details of the PMTS jamming devices selected for testing;
  • any data and information on the testing that has been agreed in writing between CSNSW and the ACMA, and which has been published on the ACMA’s website;
  • information indicating that CSNSW has consulted the relevant carriers regarding the outcomes of the testing;
  • data confirming that PMTS jamming devices used for testing complied with the electromagnetic radiation requirements in Part 3 of the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015 as if the device were a transmitter operated under a licence to which that Part applies;
  • if the PMTS jamming device used for testing is a transmitter to which section 10 of the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015 applies, records of the use and operation of the device in accordance with the record-keeping requirements in Part 4 of the Determination, as if the device were a transmitter operated under a licence to which that Part applies; and
  • details of the intended configuration of the nominated PMTS jamming device. (The “configuration” of the device is defined in subsection 4(1) to mean the position, orientation and power level of all its radiating elements).

Paragraph 7(3)(b) provides that the ACMA must have notified CSNSW in writing that it has received and is satisfied with the report provided in accordance with paragraph 7(3)(a) and that notice has been published on the ACMA’s website.

Under paragraph 7(3)(c), in circumstances where CSNSW has determined that a PMTS jamming device used for testing will not be used in the field trial, or is otherwise considered by CSNSW as being inappropriate for use in the field trial, CSNSW must have notified the ACMA in writing that it has disposed of that device by either destroying it or returning it to the manufacturer or supplier.

Paragraph 7(3)(d) specifies that any act or omission must be done for the purposes of the field trial. Paragraph 7(3)(e) specifies that a carrier liaison agreement must be in place with each of the relevant carriers in relation to the conduct of the field trial.

One of the circumstances that must exist is that the ACMA has not notified CSNSW in writing that all field trial participants are excluded from relying on the Determination for a specified period, or if the ACMA has so notified CSNSW, that the period specified or any extension has expired or the notice has been withdrawn (see paragraph 7(3)(f)). The ACMA may decide to notify CSNSW that field trial participants are excluded from relying on the Determination for a variety of reasons, including where the ACMA has concerns about safety or potential interference issues or is unable to obtain or verify sufficient details about the operation of the PMTS jamming devices to alleviate these concerns. Examples of the kinds of situations that might raise such concerns include:

  • threats to public safety resulting from the operation of the PMTS jamming devices;
  • monitoring and reporting arrangements regarding the impact of the field trial on the operation of mobile telecommunications networks are deficient;
  • harmful emissions occur outside the field trial zone;
  • public complaints are received about the operation of the field trial that require further investigation before the trial can continue;
  • requests from the ACMA for information and data relating to the trial are not met; or
  • requests from the ACMA for particular testing to be conducted on the operation of the jammer or emission levels are not met.

Paragraph 7(3)(g) specifies that if the PMTS jamming device is a transmitter to which section 10 of the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015 applies, records of the use and operation of the device must be kept in accordance with the record-keeping requirements at Part 4 of that Determination as if the device were a transmitter operated under a licence to which that Part applies.

Paragraph 7(3)(h) specifies that the nominated PMTS jamming device may only be operated under the following conditions:

  • it is operated for the purpose of causing harmful interference on designated frequencies in the field trial zone; 
  • it causes harmful interference only to radiocommunications on base transmit frequencies;
  • it does not cause radio emissions above -128.5 dBm/kHz on non-designated frequencies outside the field trial zone; and
  • it complies with the electromagnetic radiation requirements in Part 3 of the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2015 as if the nominated PMTS jamming device were a transmitter operated under a licence  to which that Part applies.

Paragraph 7(3)(i) requires that CSNSW only use or operate a nominated PMTS jamming device in accordance with the intended configuration specified in the report provided pursuant to paragraph 7(3)(a) or such other configuration as may be agreed to in writing by the ACMA.


ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Radiocommunications (Testing and Field Trial by Corrective Services NSW of PMTS Jamming Devices at Goulburn Correctional Complex) Exemption Determination 2016

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The ACMA has made the Radiocommunications (Testing and Field Trial by Corrective Services NSW of PMTS Jamming Devices at Goulburn Correctional Complex) Exemption Determination 2016 to enable a trial of public mobile telecommunications service jamming devices by Corrective Services NSW at the Goulburn Correctional Complex for a maximum period of approximately 30 months.

Human Rights Implications

This Legislative Instrument engages an applicable right or freedom, namely the right to freedom of opinion and expression. The use of these jamming devices is intended to prevent inmates at the Goulburn Correctional Complex from being able to use mobile telecommunications and therefore impacts upon their freedom of expression. However, the legislative instrument is not incompatible with the right engaged as the limitation is reasonable, necessary and proportionate to the achievement of the legitimate objective of preventing inmates from using mobile phones in an unsupervised manner in a correctional facility.

It is an offence under subsection 27DA(1) of the Summary Offences Act 1988 (NSW) for an inmate to use or possess a mobile phone without reasonable excuse. The use of mobile phones may allow inmates to continue to be involved in criminal activity outside the confines of the correctional facility. This is a threat to the proper administration of correctional facilities and is contrary to the objectives of imprisonment. It can be difficult to detect the use and possession of mobile phones in correctional facilities. It is considered that a trial of mobile phone jamming devices to prevent inmates using mobile phones while in correctional facilities assists in ensuring that inmates are not able to contravene the law.

Conclusion

This Legislative Instrument is compatible with human rights because to the extent that it may limit human rights those limitations are reasonable, necessary and proportionate.

 

 

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.