Radiocommunications (Unmanned Aircraft and Unmanned Aircraft Systems) Exemption Determination 2019

EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Radiocommunications Act 1992

Radiocommunications (Unmanned Aircraft and Unmanned Aircraft Systems) Exemption Determination 2019

Authority

The ACMA has made the Radiocommunications (Unmanned Aircraft and Unmanned Aircraft Systems) Exemption Determination 2019 (the instrument) under subsection 27(2) of the Radiocommunications Act 1992 (the Act).

Under that subsection the ACMA may determine that acts or omissions by members of a class of persons performing a function or duty in relation to, among other things, the defence, security or international relations of Australia, or in relation to the Australian Federal Police, are exempt from certain provisions of the Act.

Purpose and operation of the instrument

As unmanned aircraft (or ‘drone’) use becomes increasingly widespread, there are growing concerns about malicious drone use and the risks that drones could pose to public safety and national security. The instrument provides a two-year exemption to members of the Australian Federal Police (AFP), and certain contractors the AFP engages, from particular provisions of the Act. The purpose of the instrument is to facilitate the AFP’s use of certain counter-drone devices, as a means to counter a threat posed by drones at major events, and in other AFP operations, including where counter-drone capability is required at short notice.

Under the Act, radiocommunications devices must not be operated unless authorised by a licence (section 46). Further, the operation and possession of specified radiocommunications devices may be prohibited under section 189 of the Act if the ACMA makes a declaration in relation to those devices under section 190. The ACMA has declared the operation and possession of radionavigation-satellite service (RNSS) jamming devices (RNSS Jamming Devices) to be prohibited, by the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (the Prohibition Declaration).

A device is an RNSS Jamming Device if it is designed to have an adverse effect on RNSS radiocommunications, and it would be likely to substantially interfere with, disrupt or disturb RNSS radiocommunications. The RNSS is a system of satellites which—together with supporting infrastructure—provides accurate positioning, velocity and timing data. The most well-known RNSS is the Global Positioning System (GPS).

Where the ACMA has declared a device to be prohibited under section 190 of the Act, the Customs (Prohibited Imports) Regulations 1956 (the Regulations), made under the Customs Act 1901, provide that the importation into Australia of such a device is prohibited, unless the conditions, restrictions or requirements specified for that device are met (subregulation 4(2)). The Regulations specify as a condition that the device must only be imported by a person whose acts or omissions relating to the device are exempt from section 189 of the Act, under a determination made under subsection 27(2) of the Act (item 11 of Schedule 3 to the Regulations).

The instrument exempts certain acts and omissions of AFP members, and persons who have entered into a contract with the AFP to perform a function or duty in relation to the AFP that consists of specified acts relating to the devices (relevant persons), from the operation of Parts 3.1, 4.1 and 4.2 of the Act in relation to certain RNSS Jamming Devices. Possession, use, supply and operation of the devices by relevant persons is exempted in relation to certain activities – specifically, procurements or supply, training, testing or maintenance, and operation in order to disrupt or disable unmanned aircraft (UA) or unmanned aircraft systems (UAS)[1].

In order to be exempt, the acts and omissions of relevant persons must be done, or occur:

The instrument allows relevant persons to use RNSS Jamming Devices in the following frequency bands (relevant frequency bands):

The relevant frequency bands are not within the ranges of frequencies to which the Prohibition Declaration applies. However, the AFP has advised that the devices which relevant persons are intended to possess and operate are capable of operating within the range of frequencies covered by the Prohibition Declaration, thus rendering them RNSS Jamming Devices.

Management of risk associated with the use of the devices

In the event that an RNSS Jamming Device is operated by the AFP to disrupt or disable a UA or a UAS, there is a risk that the device may affect a range of other devices, especially those authorised under the Radiocommunications (Low Interference Potential Devices) Class Licence 2015 (the LIPD Class Licence), including public and private Wi-Fi services, for the period the device is active. The relevant frequency bands on which an RNSS Jamming Device may operate under the instrument also overlap with bands designated for industrial, scientific and medical (ISM) applications. ISM equipment—which includes, for example, plastic welders, microwave ovens, and chemical analysis equipment—is designed to generate, and apply locally, radiofrequency energy, but is not used for communications.

The operation of UAs and UASs is also subject to the Civil Aviation Regulations 1988 and the Civil Aviation Safety Regulations 1998, which are administered by the Civil Aviation Safety Authority (CASA). AFP activities involving disrupting or disabling UAs and UASs would be subject to the operation of those regulations administered by CASA, and any specific arrangements made by CASA in relation to those activities.

The AFP would be responsible for implementing operational policies and procedures relating to managing the devices and any incidental emissions that could occur during possession and operation of the RNSS Jamming Devices by relevant persons during supply, testing, training, maintenance and operational activities. When operating an RNSS Jamming Device, AFP members remain subject to laws and policies applying to their conduct as AFP officers, including the Australian Federal Police Act 1979.

The provisions of the instrument mitigate any interference risk in various ways. The instrument limits the use, operation, possession or supply of RNSS Jamming Devices to relevant persons. Someone other than a member of the AFP can only be a relevant person if they enter into a contract with the AFP for the supply, testing or maintenance of an RNSS Jamming Device, or for the training of a member of the AFP in relation to an RNSS Jamming Device. Further, the relevant person must only use, operate, possess or supply an RNSS Jamming Device in relation to the procurement, supply, testing or maintenance of the device, the provision of training to a member of the AFP in relation to the device, or the operation of the device in the relevant frequency bands to disrupt or disable a UA or UAS. The instrument does not exempt operation of the RNSS Jamming Device’s RNSS jamming capability. The instrument therefore does not authorise operation of the device to jam a drone’s radiocommunications on GPS frequencies.

As noted above, the exemption expires after a two-year period. The interim nature of the exemption will allow for review of expected developments in drone and counter-drone technologies. Additionally, the exemption applies only in relation to the relevant frequency bands. Devices operating under the LIPD Class Licence do so under the ACMA’s ‘no protection’ policy. Under the ACMA’s ‘no protection’ policy, devices operating under the LIPD Class Licence are not afforded protection from interference that may be caused by ISM applications in the ISM bands. The ACMA’s ‘no protection’ policy is consistent with the Radio Regulations of the International Telecommunication Union. 

In its public consultation (see below), the ACMA noted that because people deploying radiocommunications services under the LIPD Class Licence should do so in regard to the ‘no protection’ policy, there is a good understanding that the relevant frequency bands should not be exclusively relied upon for safety and security-critical services. Additionally, devices operating under the LIPD Class Licence do not use the relevant radiofrequency bands on an exclusive basis, but rather share those bands with many other devices and services. Devices operating under the LIPD Class Licence are generally not expected to suffer interference; however, an individual device may experience interference arising from the particular circumstances of the device’s operation.

Beyond the immediate site of operation, the extent of any incidental interference caused by operation of an RNSS Jamming Devices to disable a UA or UAS would be dependent on a range of factors, including natural and man-made geography and structures, and technical characteristics of services operating in frequency bands adjacent to the relevant frequency bands. Incidental interference beyond the immediate site of operation is also likely to be of a short duration, and further limited by the direction in which the RNSS Jamming Device is pointed. On balance, the public benefit associated with operating an RNSS Jamming Device to disrupt or disable a UA or UAS that poses a risk to public safety outweighs the adverse effects and consequences associated with incidental interference being caused to devices operating under the LIPD Class Licence and to services operating in adjacent bands.

A provision-by-provision description of the instrument is set out in the notes at Attachment A.

The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).

Documents incorporated by reference

The instrument incorporates by reference the following Acts, as in force from time to time:

The instrument incorporates by reference the following legislative instruments, as in force from time to time:

Commonwealth legislation and legislative instruments can be found on the Federal Register of Legislation (http://www.legislation.gov.au/).

Consultation

Before the instrument 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.

The ACMA undertook public consultation for the period commencing on 15 March 2019 and concluding on 12 April 2019. A consultation paper and draft instrument were made available for public comment on the ACMA website.

The ACMA also directly notified a number of stakeholders of the public consultation, including Airservices Australia, Australian Broadcasting Corporation, the AFP, Australian Industry Group, Australian Mobile Telecommunications Association (AMTA), Australian Radio Communications Industry Association, CASA, Commercial Radio Australia, Consumer Electronics Suppliers Association, Department of Communications and the Arts, Department of Defence, Department of Home Affairs, Free TV Australia, NBN Co, Optus, Special Broadcasting Service, Telstra, TPG Telecom and Vodafone Hutchison Australia.

The ACMA received eight submissions in response to the consultation, from AMTA, the Department of Defence, the Federal Chamber of Automotive Industries, Ford Motor Company, ITS Australia, NBN Co, Optus and Telstra.

Stakeholders acknowledged the public safety and national security risks posed by malicious drones, and acknowledged the public interest and the operational needs of the AFP in respect of using jamming devices to respond to safety and security threats posed by malicious drones.

Stakeholders generally supported the proposal that the instrument expire after a two-year period. Some stakeholders noted that spurious emissions from RNSS Jamming Devices operating under the instrument could potentially adversely affect services in frequency bands adjacent to the relevant frequency bands. However, the public benefit associated with operating an RNSS Jamming Device to disrupt or disable a UA or UAS that poses a risk to public safety outweighs the potential adverse effects and consequences that may be associated with any incidental interference being caused to services operating in adjacent bands. Accordingly, no substantive changes to the draft instrument were made.

Regulatory impact assessment

A preliminary assessment of the proposal to make the instrument 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 (RIS) would be required. OBPR advised that a RIS would not be required because the instrument was minor or machinery in nature (OBPR reference number 25079).

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 at Attachment B has been prepared to meet that requirement.

Attachment A

Notes on sections of the Radiocommunications (Unmanned Aircraft and Unmanned Aircraft Systems) Exemption Determination 2019

Section 1 Name

This section provides for the instrument to be cited as the Radiocommunications (Unmanned Aircraft and Unmanned Aircraft Systems) Exemption Determination 2019.

Section 2 Commencement

This section provides that the instrument commences at the start of the day after it is registered on the Federal Register of Legislation.

Section 3 Authority

The section identifies the provision of the Act that authorises the making of the instrument, namely subsection 27(2) of the Act.

Section 4 Repeal of this instrument

Section 4 provides that the instrument is repealed on the second anniversary of the day the instrument commences.

Section 5 Definitions

Section 5 defines key terms used in the instrument. 

A number of other expressions used in the instrument are defined in the Act.

Section 6 References to other instruments

This section provides that in the instrument, unless the contrary intention appears:

Section 7 Exemption in relation to certain activities

Section 7 exempts the acts and omissions of relevant persons from the operation of Parts 3.1, 4.1 and 4.2 of the Act, if those acts or omissions occur in particular circumstances.

In order to be exempt, the acts and omissions of a relevant person must be done, or occur, in the performance of the person’s functions and duties in relation to the AFP. Further, the act or omission must either be in relation to the use, operation, possession or supply of an RNSS Jamming Device to disrupt or disable a UA or UAS, or in relation to the provision of training, testing or maintenance of an RNSS Jamming Device for that purpose. The act or omission must also be done or occur only within the relevant frequency bands (where it involves use of the frequency bands) and only during the relevant period.

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 (Unmanned Aircraft and Unmanned Aircraft Systems) Exemption Determination 2019

Overview of the instrument

Under section 190 of the Radiocommunications Act 1992 (the Act), the ACMA has declared the operation, supply, and possession for the purposes of operation or supply, of radionavigation-satellite service jamming devices (RNSS Jamming Devices) to be prohibited, by the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (the Prohibition Declaration).  The instrument provides an exemption to members of the Australian Federal Police (AFP), and persons who have a contract with the AFP for the training, testing and maintenance of the devices, from Parts 3.1, 4.1 and 4.2 of the Act. The purpose of the instrument is to allow the AFP to obtain and use certain RNSS Jamming Devices where there is an identified risk to public safety or national security. The instrument also authorises activities undertaken by the AFP and persons having a contract with the AFP that might need to occur over the two year period for which the instrument is in force—namely, supply, testing, training and maintenance activities.

There is a risk that an RNSS Jamming Device in the relevant frequency bands under the instrument may affect a range of devices, especially those authorised under the Radiocommunications (Low Interference Potential Devices) Class Licence 2015, including public and private Wi-Fi services, for the period the device is active.

Human rights implications

The ACMA has assessed whether the instrument 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 instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument engages the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights. The operation of an RNSS Jamming Device in the relevant frequency bands, and in the circumstances specified, may have the possible effect of disrupting the Wi-Fi connection of public users. 

The right to freedom of expression includes the right to seek, receive and impart information and ideas through any media of a person’s choice, and it is subject to certain restrictions, including the protection of national security or public order.

The AFP has advised that in the event of an RNSS Jamming Device being operated to disable an unmanned aircraft (UA) or unmanned aircraft systems (UAS), the use of the RNSS Jamming Device would be limited to the flight path of the UA or UAS and the device only operated for the amount of time necessary to deal with the threat. Operation of the devices during testing, training and maintenance activities are intended be kept to a minimum, and practical steps can be taken by operators of the device to minimise or eliminate any adverse effects associated with incidental emissions from the devices.

Use of the RNSS Jamming Device in the relevant frequency bands may result in some limitation on the right to freedom of expression.  However, it does so consistently with Article 19, in a manner that is reasonable and necessary. Any limitation would only be for a small amount of time and proportionate to activities directly related to, or expressly intended to support, the protection of public safety and national security.

Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument could affect the right of freedom of expression; however, any effect is limited and proportional to the purpose of achieving public safety and protecting national security.

Conclusion

The instrument is compatible with human rights because any limitation on the right of freedom of expression is limited in manner which is reasonable, necessary and proportionate to the purpose of protecting public safety and national security.

[1] The terms ‘unmanned aircraft’ and ‘unmanned aircraft systems’ are used by the International Telecommunication Union (see Report ITU-R M.2171, available from http://www.itu.int).