legislative instruments—
Proposal to remake instruments:
Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2004
Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Exemption Determination 2004
Consultation paper
February 2014
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acma | iii
Contents (Continued)
Background 1
What is sunsetting? 1
Purpose of each legislative instrument 3
Proposed changes to the legislative instruments 4
Making a submission 5
acma | xiiiBackground
Under Part 6 of the Legislative Instruments Act 2003 (LIA), most legislative instruments ‘sunset’ (that is, they are automatically repealed) on the 1 April or 1October that first occurs 10 years after they are registered on the Federal Register of Legislative Instruments (FRLI). This is an automatic process applying to most legislative instruments regardless of their particular content.
Among the legislative instruments made by the Australian Communications and Media Authority (the ACMA), which are due to sunset in the near future, are the following related instruments, due to sunset on the following dates:
Name of instrument / Sunset dateRadiocommunications (Prohibited Device)
(RNSS Jamming Devices) Declaration 2004 / 1 April 2015
Radiocommunications (Prohibited Device)
(RNSS Jamming Devices) Exemption Determination 2004 / 1 April 2015
What is sunsetting?
The LIA provides a regime for the automatic repeal of regulations and other legislative instruments after 10 years, unless action is taken to exempt them. This process is referred to as ‘sunsetting’. To preserve the effect of an instrument it will need to be remade before the sunset date. The purpose of sunsetting is to ensure that legislative instruments are kept up-to-date and only remain in force as long as they are needed (see section 49 of the LIA).
Under Part 6 of the LIA, all legislative instruments will be repealed automatically on the first 1 April or 1 October falling on or after the tenth anniversary of registration of the instrument, unless an exemption is in place.[1]
Under section 50 of the LIA, the sunsetting instrument will be repealed and cease to be in force on the day it sunsets. Repeal does not undo the past effect of the instrument.
All government agencies are responsible for considering whether the legislative instruments they have made and that are due to sunset will be required after the relevant sunset date.
If the ACMA identifies that one of its instruments is no longer required, it will revoke the instrument. If the ACMA considers that the instrument is still required, it will consult affected stakeholders to establish whether the operation of the instrument is effective and efficient.
In this context, the key test is whether the instrument is:
effective in addressing an identified problem
efficient in terms of maximising the overall public benefit in the most cost-effective way.
For the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2004 (the Declaration) and the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Exemption Determination 2004 (the Exemption Determination), the ACMA has formed the preliminary view that:
there is a genuine need for each of these instruments to continue
the operation of each of these instruments is effective in achieving its underlying regulatory purpose and efficient in maximising the overall public benefit in a cost-effective manner.
The ACMA considers that these instruments continue to form a necessary and useful part of the legislative framework. Accordingly, it proposes to remake each of them in a new instrument before the sunset date referred to above without any significant changes, so that their ongoing effect is preserved.
The ACMA proposes to remake the instruments in their current form with only the minor, necessary changes referred to on page 4 of this paper.
Purpose of each legislative instrument
Radiocommunications (Prohibited Device)
(RNSS Jamming Devices) Declaration 2004
The Radionavigation-Satellite Service (RNSS) is a worldwide position, velocity and time-determination system that involves the use of satellites, as well as supporting infrastructure on the ground. The RNSS includes the Global Positioning System (GPS), which is used in Australia for a wide range of military and civilian applications. These include Australia’s air traffic management system, in-car navigation, maritime navigation, agricultural machine guidance and yield monitoring, land surveying, natural resource management, asset management, Intelligent Transport Systems, mining and emergency services. GPS is also used for timing determination for communications, banking, commerce, manufacturing and the internet.
RNSS jamming devices transmit signals that interfere with RNSS signalling and reception. These jamming devices can affect services over significant distances, interfering with other licensed radiocommunications, and posing a risk to public safety and the integrity of the radiocommunications spectrum.
Under section 190 of the Radiocommunications Act 1992 (the Act), the ACMA may declare that the operation or supply, or possession for the purpose of operation or supply, of a specified device is prohibited for the reasons set out in the notice. Section189 of the Act provides penalties for the operation or supply; or possession for the purposes of operation or supply, of devices for which a declaration is in force under section 190.
The Declaration prohibits the operation or supply, or possession for the purpose of operation or supply of an RNSS jamming device. The Declaration defines an RNSS jamming device as a device that:
a) is designed to have an adverse effect on the reception by RNSS receivers of RNSS radiocommunications; and
b) would be likely substantially to interfere with, disrupt or disturb the reception by RNSS receivers of RNSS radiocommunications.
Radiocommunications Prohibited Device) (RNSS Jamming Devices) Exemption Determination 2004
Under subsection 27(2) of the Act, the ACMA may determine that acts or omissions by members of a class of persons performing a function or duty in relation to the defence, security or international relations of Australia are exempt from certain provisions of the Act.
The Exemption Determination provides members of the Defence Force and the Department of Defence, and other related persons, with an exemption from offences under section 189 and Part 4.2 of the Act in relation to the operation or supply, and possession for the purpose of operation or supply, of an RNSS jamming device.
Proposed changes to the legislative instruments
Radiocommunications (Prohibited Device)
(RNSS Jamming Devices) Declaration 2004
The ACMA proposes to re-make the Declaration in its current form, without any significant changes, so that its ongoing effect is preserved.
The only minor changes proposed are:
to clarify existing policy intent—see proposed amendments to paragraphs 5(a), 5(b) and 5(f)
for consistency with the wording of section 190 of the Act—see proposed amendment to paragraph 5(c)
to correct minor typographical errors, and to insert a revocation clause and update the name and commencement clauses.
The proposed draft of the Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 is on the ACMA website.
Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Exemption Determination 2004
The ACMA proposes to re-make the Exemption Determination in its current form, without any significant changes, so that its ongoing effect is preserved.
The only minor changes proposed are to:
correct minor typographical errors
insert a revocation clause, and update the name and commencement clauses.
The proposed draft of the Radiocommunications Prohibited Device) (RNSS Jamming Devices) Exemption Determination 2014 is on the ACMA website.
Issue for comment
The ACMA considers that these instruments continue to form a necessary and useful part of the legislative framework. Accordingly, the ACMA proposes to remake each of them in a new instrument before the sunset date referred to above without any significant changes, so that their ongoing effect is preserved.
The ACMA welcomes comments from affected stakeholders on its proposal to remake each of the legislative instruments referred to above with the proposed minor amendments, and without any significant changes, on the basis that each of them is operating effectively and efficiently.
The ACMA will carefully consider any submissions received on issues raised in this paper before revoking and remaking the listed instrument. The ACMA will not provide a formal response to submissions but will provide links to submissions on its website.
Making a submission
Submissions should be directed:
By email:
By mail: Manager
Radiocommunications Licensing Policy and Allocations
Capability Section
Australian Communications and Media Authority
PO BOX 78
Belconnen ACT 2616
The closing date for submissions is 27 March 2014.
Please identify in the submission:
the name of the person making the submission
their contact details—including telephone number, postal address and email address (if available).
Effective consultation
The ACMA is committed to ensuring the effectiveness of its stakeholder consultation processes, which are an important source of evidence for its regulatory development activities. To assist stakeholders in formulating submissions to its formal, written consultation processes, it has developed the following guide: Effective consultation: A guide to making a submission. This guide provides information about the ACMA’s formal, written, public consultation processes and practical guidance on how to make a submission.
Publication of submissions
In general, the ACMA publishes all submissions it receives. The ACMA prefers to receive submissions which are not claimed to be confidential. However, the ACMA accepts that a submitter may sometimes wish to provide information in confidence. In these circumstances, submitters are asked to identify the material over which confidentiality is claimed and provide a written explanation for the claim. The ACMA will consider each confidentiality claim on a case-by-case basis. If the ACMA accepts a claim, it will not publish the confidential information unless authorised or required by law to do so.
Release of submissions where authorised or required by law
Any submissions provided to the ACMA may be released under the Freedom of Information Act 1982 (unless an exemption applies) or shared with other Australian Government agencies and certain other parties under Part 7A of the Australian Communications and Media Authority Act 2005. The ACMA may also be required to release submissions for other reasons including for the purpose of parliamentary processes or where otherwise required by law (for example, under a court subpoena). While the ACMA seeks to consult submitters of confidential information before that information is provided to another party, the ACMA cannot guarantee that confidential information will not be released through these or other legal means.
Privacy
The Privacy Act 1988 imposes obligations on the ACMA in relation to the collection, security, quality, access, use and disclosure of personal information. These obligations are detailed in the Australian Privacy Principles that apply to organisations and Australian Government agencies from 12 March 2014.
The ACMA may only collect personal information if it is reasonably necessary for, or directly related to, one or more of its functions or activities.
The purpose of the collection of the personal information from submissions to this paper is to:
allow the ACMA to contact submitters where follow-up is required
provide them with future notification on related matters.
Submissions in response to this paper are voluntary. Except where the ACMA accepts a claim of confidentiality over material in a submission, it generally publishes submissions received. This includes publication of any incorporated personal information; for example, name, address or telephone number that may be included at the beginning or end of a submission.
The ACMA will not use such personal information for any other purpose other than those specified above unless otherwise permitted to do so under the Privacy Act.
Further information on the Privacy Act and the ACMA’s privacy policy is available here. The privacy policy contains details about how you may access personal information about you that is held by the ACMA, and seek the correction of such information. It also explains how you may complain about a breach of the Privacy Act and how we will deal with such a complaint.
Should you have any questions, please contact the ACMA’s privacy contact officer on telephone on 1800 226 667 or email .
acma | 5[1] Under subsection 54(2) of the LIA, certain classes of legislative instruments are exempted from the sunsetting provisions.