Radiocommunications (Exemption – Bomb Disposal Electronic Counter Measures) Determination 2023

The instrument is focused on a small set of interlocking concepts. Each is defined or operationalised in the text and functions as a gate for the exemption.

• Electronic counter measure device. Defined in the instrument as a device designed to interfere with, disrupt, distort or disturb radiocommunications (s 6). The exemption applies only to actions involving such devices (see ss 8, 9).

• Improvised explosive device. Defined as a thing made or placed in an improvised way that incorporates destructive, lethal, noxious, pyrotechnic or incendiary chemicals and is designed to destroy, incapacitate, harass or distract (s 6). This definition frames the public-safety objective in the exemption criteria in s 9.

• Police force. Defined to include the Australian Federal Police and the police force of each State and Territory (s 6). The exemption applies to members of those police forces acting in specified contexts.

• Contractor and potential contractor. A contractor is a person who has a contract with a police force, the Commissioner or head of a police force, or the Commonwealth/State/Territory for the benefit of a police force, in relation to an electronic counter measure device, and persons employed or engaged by that person for that contract (s 6). Potential contractors are persons capable of supplying an ECM device to a police force: this includes the person (primary potential contractor) and persons engaged or employed by that person regarding the device (s 6(2)). The instrument makes different exemption rules for contractors (ss 8(1), 9-11) and potential contractors (s 8(2), 12).

• Authorised person. The instrument treats the ACMA, a member within the meaning of the ACMA Act, and a member of ACMA staff who is an SES employee or acting SES employee as authorised persons (s 6). Those authorised persons have powers to request records from police forces under s 11.

• Exemption conditions. The exemption for police forces and contractors is conjunctive: one or more of the operative circumstances in s 9 must exist and all record-keeping and preconditions in s 10 must be satisfied (s 8(1)). For potential contractors the condition is set out in s 12.

Two structural points about legal form and temporal scope are important. The instrument is a legislative instrument that references other instruments and Acts as in force (s 7). It expressly supersedes a prior 2010 determination (s 4) and contains an automatic five-year sunset (s 5), meaning it is not open-ended.

The instrument performs both regulatory relief and regulatory governance functions: it removes the reach of specified parts of the Radiocommunications Act for acts that meet its criteria, but it couples that relief to record-keeping and ACMA oversight as an ongoing governance mechanism (ss 8-11).

The instrument tightly delimits who may rely on the exemption. There are three broad classes of persons affected.

• Members of police forces. The term police force explicitly includes the Australian Federal Police and State and Territory police forces (s 6). Acts or omissions by individual members of those forces are eligible for the broader exemption under s 8(1) provided the s 9 and s 10 conditions are met. Police forces are also the entities obliged to keep records and respond to ACMA requests (s 10(2)-(4), s 11).

• Contractors. The instrument defines a contractor as a person who has a contract with a police force, the Commissioner or head of a police force, or the Commonwealth/State/Territory for the benefit of a police force, in relation to an electronic counter measure device, together with persons employed or engaged by that person in relation to the contract (s 6). Acts or omissions by contractors are included in the broader exemption under s 8(1) subject to the s 9 and s 10 conditions.

• Potential contractors. Defined in s 6(2), a potential contractor includes any person capable of supplying an ECM device to a police force (the primary potential contractor) and persons engaged or employed by that person regarding the device. Potential contractors receive a narrower exemption under s 8(2) limited to specific subsections of the Act,170(2), 175(2) and 176(2),and only where the act or omission is for the purpose of offering to supply an ECM device to a police force (s 12).

Actors outside those categories are not within the instrument’s exemption scope. The instrument does not create general permissions for commercial uses of ECM devices outside dealings with police forces and persons engaged to supply them. Where persons operate, test, supply or offer to supply ECM devices in contexts not meeting the statutory definitions, the exemption will not attach.

The instrument imposes duties on police forces for record-keeping of prior uses and purposes (s 10), and on police forces to comply with written requests from authorised persons to provide those records within 10 business days unless a longer period is agreed (s 11). The authorised persons with request powers are ACMA and certain ACMA officers as defined (s 6, s 11).

The exemption’s temporal limit, the five-year automatic repeal (s 5), also affects parties planning procurement, long-term contracts or product development. The instrument replaces a 2010 determination (s 4), so suppliers and police forces that relied on the earlier instrument will need to map past reliance onto the new terms.

The instrument simultaneously creates rights to be exempt from parts of the Radiocommunications Act and imposes several concrete duties and preconditions. These operate as gates to the exemption.

Rights (exemptions)

• Police members and contractors have a conditional right to be exempt from all of Part 3.1, all of Part 4.1 and all of Part 4.2 of the Radiocommunications Act where one or more circumstances in s 9 exist and all circumstances in s 10 exist (s 8(1)). The instrument does not itself restate the content of those Parts of the Act, but it removes their application to qualifying acts and omissions.

• Potential contractors have a narrower conditional right of exemption from subsections 170(2), 175(2) and 176(2) of the Act where the act or omission is for the purpose of the primary potential contractor offering to supply an ECM device to a police force (s 8(2), s 12).

Duties and preconditions

• Purpose requirement. For police and contractors, at least one of the circumstances listed in s 9 must exist for the exemption to apply. Those circumstances are specific operational purposes: preventing the detonation or use of an improvised explosive device; training police in operation and use of ECM devices; supply or offer to supply ECM devices to police; testing ECM devices proposed or supplied to police; maintenance or repair of such devices; and R&D involving such devices aimed at preventing detonation or use of IEDs (s 9(2)-(7)).

• Record-keeping. If the act or omission involves the use or operation of an ECM device by a member of a police force, a member of that force must have recorded the date, time, location and purpose of each prior use or operation by a member (s 10(2)). Similarly, if the use involves a contractor operating the device in accordance with a contract with a police force, a member of the police force must have recorded the date, time, location and purpose of each prior use or operation by that contractor (s 10(3)).

• Compliance with ACMA requests before conduct. If the act or omission is in relation to a particular police force, that police force must have complied with every request made to it under s 11 that has not been withdrawn before the act is performed or omission occurs (s 10(4)).

• Provision of records on request. An authorised person may request in writing that a police force provide the ACMA with a record kept under s 10(2) or s 10(3) (s 11(1)). The police force must comply within 10 business days or such longer period as agreed by an authorised person (s 11(2)). An authorised person may withdraw a request in writing (s 11(3)).

• Narrow purpose test for potential contractors. For potential contractors to be exempt from the three specified subsections, the act or omission must be for the purpose of the primary potential contractor offering to supply an ECM device to a police force (s 12).

Who decides and where duties attach

• The decision whether the exemption applies to a particular act or omission is an objective assessment against the instrument’s conditions. Operationally, the police force must maintain the records that evidence prior use and must comply with ACMA records requests before actions are taken (ss 10-11). ACMA or authorised persons decide when to request records and may agree extensions or withdraw requests (s 11).

The instrument does not create novel criminal offences or specify new penalties within its own text. Instead, it modifies the application of provisions in the Radiocommunications Act by exempting specified actors and acts from those provisions when the instrument’s gates are satisfied (s 8).

The instrument itself does not introduce new criminal penalties or pecuniary fines in its text. Its enforcement mechanism operates by altering the applicability of statutory prohibitions and by establishing an administrative oversight channel.

Effect on statutory prohibitions

• The instrument removes the application of all of Part 3.1, Part 4.1 and Part 4.2 of the Radiocommunications Act to qualifying acts and omissions by police members and contractors (s 8(1)), and removes the application of specific subsections (170(2), 175(2) and 176(2)) for qualifying potential contractors (s 8(2)). Because the instrument is an exemption, it changes whether the subject conduct is caught by the Act’s enforcement and penalty regimes. The instrument does not itself specify what the instruments of enforcement or penalties are in respect of those Parts; that content is in the Act provisions that are being carved out.

Administrative enforcement and oversight

• The instrument creates a record-keeping and disclosure obligation enforced administratively. Police forces must keep records of prior uses and purposes (s 10(2)-(3)). An authorised person, defined to include the ACMA and specified ACMA officers, may request those records in writing (s 11(1)). Police forces must comply within 10 business days or any longer period agreed by an authorised person (s 11(2)). An authorised person may withdraw a request (s 11(3)). Non-compliance with a written request is not expressly expressed in the instrument as attracting a specific sanction; however, s 10(4) makes compliance with outstanding, unwithdrawn requests a precondition for exemption before performing the act. Practically, failure to comply with a records request prior to the act would mean the exemption does not attach and therefore the conduct would remain subject to the Act’s enforcement regime.

Discretion and timing

• The instrument vests discretion in authorised persons to make and withdraw requests and to agree to longer compliance periods (s 11). That discretion shapes the administrative pathway by which ACMA exercises oversight.

Temporal enforcement considerations

• The instrument is time-limited and will be repealed five years after commencement (s 5). The sunset creates a future point at which the exemptions lapse. The instrument also repeals the 2010 determination (s 4), replacing its enforcement framework with the current one.

Practical enforcement pathway

• In practical terms, enforcement of the Act’s radiocommunications rules in relation to ECM devices will depend on whether the instrument’s conditions are satisfied at the time of the act. If they are, the specified parts of the Act do not apply. If they are not, the conduct will continue to fall within the Act and subject to whatever enforcement and penalties the Act specifies for breach of the relevant Parts and subsections. The instrument itself relies on the administrative mechanics of record-keeping and ACMA requests as the primary enforcement governance lever (ss 10-11).

This instrument sits within the statutory architecture of radiocommunications regulation and statutory interpretation rules. It expressly interacts with the Radiocommunications Act 1992 under which it is made, and it references other Acts and instruments for definitions and interpretive application.

Foundational statutory authority

• The instrument is made under subsection 27(2) of the Radiocommunications Act 1992 (s 3). That section provides the statutory power to make determinations of this kind. The instrument therefore operates as an exemption under the Act, altering the Act’s application to specified actors and conduct when its conditions are met (s 8).

Cross-references to definitions and Acts

• Section 6 of the instrument incorporates several definitional cross-references to the Australian Communications and Media Authority Act 2005 (ACMA Act) and the Public Service Act 1999 via notes. Authorised person, ACMA staff and SES employee references rely on definitions found in those Acts (s 6 and accompanying notes). The instrument also reminds users that a number of other expressions used in the instrument are defined in the Radiocommunications Act itself, such as ACMA, device, interference, offer to supply, operate and radiocommunication (s 6 note). Those cross-references mean party obligations and rights must be read together with definitions and powers in the ACMA Act and Radiocommunications Act.

References to other instruments

• The instrument provides that references to other legislative instruments are references to those instruments as in force from time to time, and references to other kinds of instruments or writings are references to them as in force or existing from time to time (s 7). The notes point to the Acts Interpretation Act 1901 and the Legislation Act 2003 as relevant for interpreting references (s 7 notes). Section 7 also points to s 314A of the Act, which will be relevant for parties cross-checking how the exemption applies alongside other instruments.

Effect on prior instrument

• The instrument expressly repeals the Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010 [F2010L00821] (s 4). The repeal means that parties who previously relied on the 2010 instrument must now rely on this instrument’s terms for current exemptions.

Scope of carve-out relative to the Act

• By exempting acts and omissions from entire Parts of the Radiocommunications Act (Part 3.1, Part 4.1, Part 4.2) for qualifying conduct, the instrument narrows the Act’s effective coverage for that conduct. Conversely, conduct outside the instrument’s defined circumstances remains fully subject to the Act and related rules. Because the instrument does not restate the content of those Parts, practitioners must read the instrument in conjunction with the Radiocommunications Act to determine what legal constraints are removed or retained in each factual scenario.

Administrative interplay

• The instrument provides an administrative control via ACMA requests for records (s 11), setting up a practical coordination point between police forces and the ACMA. The power to request and the statutory timeline for compliance with requests create an interface by which ACMA can obtain operational records relevant to its regulatory oversight without having to rely on formal enforcement action under the Act. That mechanism will interact with general ACMA investigatory and administrative functions under the ACMA Act and the Radiocommunications Act.

Temporal interaction

• The sunset clause (s 5) means that the instrument’s interaction with other laws is temporary. Parties must plan for the point at which this exemption ceases to operate and the Radiocommunications Act applies without this carve-out, unless replaced or extended by a future instrument.

This instrument contains only a minimal internal amendment history recorded in its own text. The instrument performs two express replacement and temporal functions.

• Repeal of the 2010 instrument. The instrument expressly repeals the Radiocommunications (Prohibited Devices) (Use of Electronic Counter Measures for Bomb Disposal Activities) Exemption Determination 2010 [F2010L00821] (s 4). That indicates the 2010 determination was the prior legal mechanism for exempting bomb disposal ECM activities and that this instrument replaces it. No other amendments to earlier instruments are listed.

• Sunset/repeal of this instrument after five years. The instrument will be repealed at the start of the day that is the fifth anniversary of its commencement (s 5). The instrument therefore has an embedded, automatic expiry date. The text provides for no mechanism within the instrument for early extension or amendment; any extension, replacement or amendment would require a new legislative instrument or amending instrument made under the Radiocommunications Act 1992 or relevant statutory power.

• Commencement mechanics. The instrument commences at the start of the day after the day it is registered on the Federal Register of Legislation (s 2). That registration date is the operative trigger for both commencement and the five-year sunset calculation.

• Interpretive and cross-reference provisions. Section 7 declares that references to other legislative instruments are to be read as references to those instruments as in force from time to time and that references to other instruments or writings likewise refer to the versions in force from time to time (s 7). This provision means that the instrument’s operation will be interpreted against the contemporaneous versions of other instruments and Acts, which is relevant for future amendments to those other texts.

No other revisions, clauses or transitional provisions are contained in the instrument text provided. If amendments are to be made before the five-year sunset, those would appear in a separate amending instrument or in a replacement instrument. The repeal of the 2010 instrument and the five-year sunset are the only historical or prospective amendment markers recorded in the instrument itself.

The instrument itself contains no record or mention of litigation. The text does not cite any judicial decisions, and it does not reproduce or summarise any litigation outcomes bearing on the interpretation or validity of the instrument. The instrument’s notes reference statutory interpretation authorities such as the Acts Interpretation Act 1901 and the Legislation Act 2003 for interpreting Commonwealth Acts and instruments (s 7 notes), but no case law is mentioned.

Because this instrument operates as an exemption under the Radiocommunications Act 1992, any litigation that engages the instrument in future would likely concern factual questions about whether the conditions in ss 9, 10 and 12 are satisfied in particular circumstances, and whether records and requests under s 11 were handled in conformity with those provisions. The instrument itself establishes administrative prerequisites that will be capable of evidential challenge in judicial review or enforcement proceedings, but the instrument does not record any past litigation nor any settled interpretations that practitioners can rely upon from judicial authorities.

Practitioners seeking precedents or authoritative judicial interpretation of how these exemptions operate will need to consult subsequent case law or administrative determinations post-dating the instrument. The instrument makes clear that definitions and related statutory context come from the Radiocommunications Act and ACMA Act, so relevant litigation could also interpret those Acts and the meaning of terms such as interference, device, offer to supply, operate or radiocommunication where those definitions bear on exemption eligibility (s 6 note). For now, the instrument contains no litigation history and no judicial gloss within its text.

The instrument contains several sharp operational constraints and conditional mechanics that can cause reliance failures if not observed precisely.

Exemption is conditional and conjunctive

• For police members and contractors the exemption is not automatic. Paragraph 8(1) requires both that one or more of the circumstances in s 9 exists and that all of the circumstances in s 10 exist. Missing either limb means the exemption does not apply (s 8(1)). That structure is a common pitfall: a party may meet an operative purpose in s 9 but fail to satisfy the record-keeping or ACMA-request preconditions in s 10, which negates the exemption.

Record-keeping specifics

• The record-keeping duty in s 10(2) and s 10(3) is concrete in its required fields: date, time, location and purpose of each prior use or operation. Those records must be created by a member of the police force, not merely held by a contractor, for both members’ use and contractors’ use in contract with a police force (s 10(2)-(3)). An absence, incompleteness or late creation of these records risks destruction of the exemption defence.

Pre-activity compliance with ACMA requests

• The requirement in s 10(4) is operationally significant. It obliges police forces to have complied with every request made under s 11 that has not been withdrawn before the act is performed or omission occurs where the act is in relation to that police force. This means outstanding, unwithdrawn ACMA requests can block the applicability of the exemption until compliance is achieved or the request is withdrawn (s 10(4), s 11(1), (3)). Practically, a police force that fails to respond to an ACMA request within the 10 business day timeframe risks being unable to claim the exemption for subsequent acts until it responds.

Narrow scope for potential contractors

• The exemption for potential contractors is limited to three subsections of the Act (s 8(2)) and applies only when the act is for the purpose of the primary potential contractor offering to supply an ECM device to a police force (s 12). That is a narrow commercial carve-out. Activities beyond offering to supply, such as actual supply, deployment, or use beyond the offer context, are not covered by s 12 for potential contractors and may require the contractor status under s 6 to be able to rely on the broader s 8(1) exemptions.

Temporal uncertainty and planning

• The instrument expires automatically after five years (s 5). Parties entering long-term procurement, R&D or manufacturing supply chains should note that the legal exemption will cease at sunset unless replaced or extended. Relying on the exemption for long-lived procurement or product safety strategies without contingency planning could expose parties to regulatory compliance shifts.

Interplay with definitions in other Acts

• The instrument relies on definitions and terms that are in the Radiocommunications Act and the ACMA Act (s 6 note). Misreading or failing to apply those definitions correctly, for example regarding what constitutes a device, interference, or an offer to supply, will lead to incorrect assumptions about whether the exemption applies. Practitioners must cross-check the Acts for the precise legal meanings.

No express penalties for non-compliance with s 11

• The instrument does not specify penalty sanctions for failure to comply with a written records request under s 11. However, s 10(4) conditions the availability of the exemption on compliance. The practical consequence of failing to comply is loss of the exemption, which returns the conduct to full operation of the Radiocommunications Act. That practical effect may be overlooked where respondents expect an administrative fine rather than the more consequential result of losing exemption.

Replacement of prior instrument

• The instrument repeals the 2010 determination (s 4). Parties that continue to rely on administrative practices or advice predating the new instrument should confirm that those practices align with the current instrument’s specific record-keeping and purpose tests.

Evidence burden

• Since the instrument bases the exemption on recorded facts (prior uses, purposes and compliance with requests), parties seeking to rely on the exemption will need contemporaneous, contemporarily created documentary evidence. Retrospective creation of records after an event is a weak legal position given s 10(2)-(3) requirements that a member "has recorded" prior uses.

Administrative discretion

• The authorised person has discretion to withdraw requests and to agree to longer response periods (s 11(2)-(3)). Parties cannot unilaterally assume a particular timing; proactive engagement with ACMA will materially affect whether the preconditions are satisfied in practice.

To establish and preserve the exemption under this instrument, affected parties should focus on satisfying the conjunctive gates in ss 8-12 and on building documentary evidence that those gates were satisfied in real time.

1. Identify the applicable legal category

• Determine whether the actor is a member of a police force, a contractor as defined in s 6, or a potential contractor (s 6, s 8). The precise definitions in s 6 control eligibility. If you are a supplier or employee, identify whether you are operating under a contract with a police force or are only a potential supplier.

2. Confirm the operative circumstance in s 9

• Ensure that the act or omission falls into one or more of the categories in s 9: prevention of detonation or use of an IED; training police in ECM operation; supply or offer to supply ECM to a police force; testing ECM devices proposed or supplied to police; maintenance or repair of such devices; or research and development involving those devices with the specified purpose (s 9(2)-(7)). Keep contemporaneous records establishing the factual purpose for the activity.

3. Implement and maintain s 10 record-keeping

• If the activity involves the use or operation of an ECM device by a police member or a contractor, a member of the police force must record for each prior use: date, time, location and purpose (s 10(2)-(3)). Build a standardised record template that captures those fields and ensure the member of the police force responsible for the deployment completes the record contemporaneously. Retain copies, including any metadata and timestamps, to demonstrate contemporaneous record creation.

4. Manage ACMA requests proactively

• Anticipate that authorised persons may request records under s 11. Set internal processes to: (a) acknowledge receipt of an ACMA written request immediately, (b) collate the requested records, and (c) respond within the 10 business day statutory timeline or seek an extension agreed with the authorised person (s 11(1)-(2)). If a request is outstanding and the intended action is to occur in relation to that police force, ensure the police force complies with the request prior to performing the act (s 10(4)). Keep records of communications with ACMA about agreed extensions or withdrawals.

5. For potential contractors, limit pre-operational conduct to offers to supply

• Potential contractors seeking to rely on the s 8(2) exemptions should ensure that the act or omission is for the purpose of offering to supply an ECM device to a police force (s 12). Avoid operational deployments or uses that go beyond an offer until a contract is in place that converts the actor into a contractor as defined in s 6.

6. Build documentation tying purpose to action

• Contemporaneous operational orders, training schedules, tender documents, supply offers, testing plans and R&D briefs that explicitly reference the objective of preventing IED detonation or improving countermeasure capability will help satisfy the s 9 purpose tests. Because the instrument is evidence-driven, contemporaneous documentation is the primary means of demonstrating exemption eligibility.

7. Review contracts and procurement documentation

• Contractors should ensure their contracts with police forces clearly identify the contractual purpose as relating to ECM devices and, where relevant, include provisions obliging police forces to comply with record-keeping and ACMA-request processes that affect exemption availability. Contract clauses that allow contractors to rely on police records in fulfilling regulatory preconditions will reduce operational risk.

8. Plan for the sunset

• The instrument will be repealed automatically at the start of the day five years after commencement (s 5). Parties should plan post-sunset compliance paths: either to operate without the exemption, to seek renewal/extension through new instruments, or to pursue alternative compliance strategies under the Radiocommunications Act. Include contractual contingencies for regulatory change in multi-year contracts.

9. Keep cross-referenced statutory texts at hand

• Because the instrument references definitions and related provisions in the Radiocommunications Act and the ACMA Act (s 6 note, s 7), practitioners should maintain access to those Acts and any relevant subordinate instruments. Confirm definitions of device, interference, offer to supply, operate and radiocommunication in the Act when applying the exemption to factual scenarios.

10. Evidence chain for dispute resolution

• Preserve an audit trail demonstrating that the conditions of the exemption existed and were met before the act occurred: completed records under s 10, evidence of ACMA requests and responses under s 11, contemporaneous operational orders, and contractual documents showing the supplier/police relationship where relevant. Such an audit trail will be the core material to show that the exemption attached if contested.

Following these steps aligns operational practice with the instrument’s express textual requirements. The two principal risks to manage are failure to satisfy the document-based preconditions in s 10 and failure to manage ACMA requests under s 11. Both have a practical consequence of removing the exemption and subjecting conduct to the full scope of the Radiocommunications Act.