Radiocommunications (Exemption) Determination 2024

Several key terms are defined in section 5 and the note to that section, which cross-references definitions in the Act. A “banned device” means an item of “banned equipment”, which in turn means equipment specified in a “permanent ban”. Permanent bans are made under the Act and are separate legislative instruments. The instrument does not list what devices are banned; that is left to the underlying permanent ban regime. This means the scope of the exemption is tied to the content of other instruments not set out here, creating a layered reading requirement.

The “ARPANSA standard” is the Radiation Protection Standard for Limiting Exposure to Radiofrequency Fields - 100 kHz to 300 GHz (2021) published by the Australian Radiation Protection and Nuclear Safety Agency. If a later standard replaces it, the later standard applies (definition paragraph (b)). This incorporates by reference a technical safety standard that may change without notice, and compliance must be checked against the current version.

“Maximum EIRP” has two meanings depending on context. In subparagraph 12(3)(d)(iii) (record-keeping for operation), it means the largest amount of EIRP actually radiated at that time. In all other contexts, it means the largest amount of EIRP that may be radiated at that time. This distinction matters for record-keeping: the operator must record the observed maximum EIRP, while for conditions such as the ARPANSA limit, the relevant measure is the design or capability limit.

A “dummy load” is defined in subsection 5(2) as a thing used as a substitute for something capable of radiating radio signals, with the same impedance characteristics, but incapable of and designed to prevent radio emission. This is a technical safety device used to test transmitters without emitting signals.

A “shielded enclosure” is a container, room or other thing that prevents or is designed to prevent the entry or escape of radio emissions. The condition in section 10 requires that the signal level at each point of the external surface is not greater than the mean level of ambient radiofrequency noise in the place the enclosure is located. This is a performance standard that may require testing and verification.

The central organising device is the table in section 7, which pairs each specified act with the compliance provisions from which exemption is granted. Item 1 (possession) exempts from subsections 47(1), 47(3), 175(4) and 176(4). Item 2 (operation) exempts from subsections 46(1), 46(3), 175(3) and 176(3). Items 3 and 4 (supply and offering to supply) exempt from narrower ranges: subsections 175(1), 176(1) for supply, and subsections 175(2), 176(2) for offering to supply. The difference reflects the Act's treatment of different stages of dealing.

The exemption is primarily relevant to entities that need to lawfully possess, operate or supply devices subject to a permanent ban. The supply restriction in section 11 limits who may receive a banned device to a closed list: the Defence Force of Australia, the Defence Department, members of the Defence Force or officers of the Defence Department (when related to specific functions), members of visiting forces or their civilian components (similarly limited), authorised defence suppliers, the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Australian Signals Directorate, persons performing certain functions under sections 25 or 27 of the Act (subject to ACMA determination if applicable), the ACMA itself, persons outside Australia, or persons named in a notifiable instrument under Schedule 1. This list effectively restricts the lawful supply chain to government, military, intelligence and related security entities, plus offshore recipients and ACMA-nominated persons. Private individuals or commercial entities not on that list cannot be supplied with a banned device under this exemption.

The possession and operation exemptions are available only to persons named in a notifiable instrument made under Schedule 1 (section 9). That instrument is made by the relevant authority (probably ACMA or the minister, though the source does not specify) and is a separate legislative instrument that must be registered and in force. The criteria for inclusion in the notifiable instrument are not stated in this determination, giving the instrument-maker broad discretion. This creates a gatekeeping mechanism: no matter how diligent a person is in complying with other conditions, without being named, the exemption is unavailable.

The record-keeping obligations in sections 12 to 14 apply to persons who possess, operate or supply banned devices (items 1, 2 and 3). Those who only offer to supply (item 4) are not required to keep records under this instrument, though other laws may apply. The operational records must be created before, during and after operation, imposing ongoing administrative burdens on operators.

The exemption also affects third parties who make complaints or reports of interference. Operators must record the identity and details of complainants, which may create privacy concerns and dissuade reporting if people know their details will be recorded and kept for five years.

The principal right conferred by the instrument is the exemption from specific compliance provisions of the Act. This means that a person who fully satisfies all conditions will not be subject to the criminal or civil penalty provisions otherwise triggered by possession, operation, supply or offering to supply a banned device. The right is conditional and does not extend beyond the acts and provisions listed in the table.

The duties are extensive. First, for acts under items 1, 3 and 4 (possession, supply, offering to supply), the person must ensure that the electromagnetic energy that could be emitted by the device does not exceed the general public exposure limits in the ARPANSA Standard in a place accessible by the public (subsection 8(1)). This is a forward-looking design or capability condition. For operation (item 2), the condition is that the energy that is emitted does not exceed those limits (subsection 8(2)). This is an operational condition that requires real-time compliance monitoring.

Second, the person must be named in a notifiable instrument under Schedule 1 (section 9). This is a threshold condition for all items. The person has no statutory right to be named; inclusion is at the discretion of the authority making the instrument.

Third, for operation (item 2), one of three conditions must be met: (a) all radio emissions are dissipated into a dummy load; (b) the device is operated in a shielded enclosure meeting the ambient noise level test; or (c) the device is operated in accordance with a written permission from the ACMA under subsection 193(1) of the Act, registered as a notifiable instrument and not revoked (section 10). Option (c) effectively creates an additional individual licensing path via written permission.

Fourth, supply must be restricted to the closed list of recipients in section 11. The supplier must verify the recipient's identity and eligibility before supplying. There is no exemption for offering to supply to unlisted persons.

Fifth, record-keeping duties under section 12 are detailed and time-sensitive. For possession, a record must be created at the time of first coming into possession, including the permanent ban, date, frequencies, maximum power and maximum EIRP. If the device is destroyed or disposed of, a record must be made at that time. For operation, a record of methods to prevent interference must be created before operation; complaints of interference must be recorded at receipt; steps to reduce interference at the time taken; and after each operation, frequencies, maximum power and maximum EIRP must be recorded. For supply, a record of recipient identity, verification information, date, kind, frequencies, power and EIRP must be created at the time. Multiple identical supplies to the same recipient on the same day can be consolidated (subsection 12(5)).

Records must be retained for at least five years (section 13). On written request from ACMA or an inspector, a copy must be provided within a period of not less than two days (section 14). There is no obligation on ACMA to specify a minimum period; the requester chooses the period, subject to a floor of two days.

The instrument itself does not create penalties. Its enforcement mechanism is the withdrawal of the exemption. If a person fails to comply with any condition, the exemption under the relevant item does not apply, and the underlying compliance provisions of the Act are re-engaged. The specified provisions are subsections 46(1) and (3), 47(1) and (3), 175(1), (2), (3) and (4), and 176(1), (2), (3) and (4). These provisions of the Act carry their own penalty regimes, which include civil penalties and criminal offences. The amounts and imprisonment terms are not set out in this instrument, but they can be found in the Act. Typically, unauthorised possession or operation of a banned device under the Radiocommunications Act can attract significant fines and, in some cases, imprisonment.

The ACMA and inspectors appointed under the Act have enforcement powers independent of this instrument. They can request records under section 14, and failure to provide a copy within the specified period (subject to a two-day minimum) means the exemption for that act is not met. The ACMA could also revoke a written permission given under subsection 193(1) of the Act, which would withdraw the exemption for operation under option (c) of section 10.

The instrument does not provide for review of decisions to name or not name persons in the Schedule 1 notifiable instrument, nor of ACMA refusals to grant written permission. Persons relying on the exemption have no statutory right to be included, and the lack of published criteria for inclusion creates uncertainty. If challenged, the validity of the exemption itself could be contested if a person believes they satisfy all conditions but are arbitrarily excluded.

Enforcement may also be indirect. Third parties who suffer interference from a banned device could complain to ACMA, which may investigate and determine whether the operator was in fact operating under a valid exemption. If the operator failed to meet the ARPANSA condition or the shielded enclosure condition, the exemption would not apply and the operator could be prosecuted.

This instrument is made under subsection 302(2) of the Radiocommunications Act 1992, and its operation is entirely within that Act's framework. The compliance provisions from which exemption is granted (sections 46, 47, 175, 176 of the Act) are the primary prohibitions on dealing with banned equipment. The exemption does not override any other provisions of the Act or other laws. For example, the general offence provisions relating to interference, failure to comply with licence conditions, or unauthorised operation of radiocommunications transmitters still apply unless separately exempted.

The instrument incorporates the ARPANSA standard by reference. That standard is not itself a legislative instrument but is published by a statutory authority. Compliance with the standard is a condition of the exemption, but the standard does not have direct legislative force beyond this instrument. Changes to the standard automatically apply to the condition (section 6 references the standard as in force from time to time). This means a person's compliance status could change without amendment to this instrument if ARPANSA updates its exposure limits.

The supply restrictions in section 11 interact with other Commonwealth legislation governing defence, intelligence and security. Entities such as the Australian Signals Directorate, ASIO and the Australian Secret Intelligence Service operate under their own enabling Acts, and the supply condition aligns with those Acts by limiting supply to their functions and duties. Supply to persons outside Australia raises potential interaction with export control laws, particularly the Defence Trade Controls Act 2012 and the Customs Act 1901. The instrument does not override those laws; a supplier must still comply with any export permits or licences required for sending a banned device offshore.

The record-keeping requirements may interface with privacy laws, particularly the Privacy Act 1988, because records of complaints create personal information about individuals. The obligation to retain records for five years and provide them to ACMA or inspectors may engage the Australian Privacy Principles. The instrument does not purport to authorise non-compliance with privacy obligations, so persons subject to the exemption should consider their privacy responsibilities when recording complainant details.

The repeal of the instrument after five years (section 4) means that any ongoing dealings with banned devices after that date will lose their exempt status unless a new instrument is made. This interacts with the continued operation of the underlying Act, which does not sunset.

The instrument is a new legislative instrument; there is no amendment history within the source text. It was made in 2024 and commenced either on 28 August 2024 or the day after registration, whichever is later. As a legislative instrument, it may be amended or revoked by a later instrument made under the same power. The instrument itself does not contain transitional provisions or savings for pre-existing acts. It has a built-in repeal at the start of the fifth anniversary of commencement (section 4), meaning it will automatically cease to have effect unless earlier revoked.

There is no indication of any previous exemption determination being replaced. The instrument is self-contained and does not reference any earlier exemption. The absence of an amendment history in the source text means that analysts should check the Federal Register of Legislation for any subsequent instruments that might amend it.

The source text contains no references to litigation. Because the instrument is very new (commenced around August 2024), there is unlikely to be any case law interpreting it yet. However, future litigation could arise in several areas: challenges to the validity of the notifiable instrument naming persons (e.g., if procedural requirements for legislative instruments under the Legislation Act 2003 were not followed); disputes over whether a particular device fell within a permanent ban; enforcement actions where the defendant claims exemption but fails to satisfy conditions; or judicial review of ACMA decisions to refuse written permission for operation under section 10(4). The instrument's reliance on discretionary notifiable instruments and the absence of criteria for naming persons make it vulnerable to challenge on grounds of unreasonableness or procedural fairness, though such challenges would depend on the administrative law framework.

Several features of this instrument can trap unwary persons who assume they are exempt simply because they hold a banned device for a legitimate purpose.

First, condition must be satisfied cumulatively. A person who complies with the ARPANSA standard and keeps perfect records but is not named in the Schedule 1 notifiable instrument has no exemption. The person must check whether a notifiable instrument has been made naming them. There is no public register requirement in this instrument; the person must know to look.

Second, the shielded enclosure condition in subsection 10(3) requires that the signal level at each point of the external surface is not greater than the mean level of ambient radiofrequency noise in the place the enclosure is located. Ambient noise varies with time and location. This is a technical performance standard that may require measurement equipment and calibration. It is not enough to have a room with metal walls; the operator must verify the emission level meets this variable benchmark.

Third, the ARPANSA standard condition for possession (subsection 8(1)) uses the phrase "could be emitted". This is preventative. It means the person must assess the device's capability, not just its actual emission. A device that is capable of exceeding the public exposure limits, even if not currently emitting, cannot be possessed under this exemption. This may catch devices that have variable power settings.

Fourth, the dummy load condition (subsection 10(2)) requires that all radio emissions are dissipated into a dummy load. If even a small amount of radiation escapes (e.g., through poor shielding or connector leakage), the condition is not met. The dummy load must be used correctly.

Fifth, supply is not a free pass to transfer a device to anyone. The list in section 11 is exhaustive. Supplying to a subcontractor who is not on the list, even if that subcontractor works for a listed entity, would breach the condition. The recipient must be the listed entity itself, not an intermediary.

Sixth, record-keeping must be contemporaneous. Section 12 uses phrases like "at the time the person first came into possession", "before the person operates", "at the time the person receives the complaint". Records created later, even the same day, may not satisfy the condition if they are not created at the exact time required. This is a strict reading.

Seventh, the retention period is five years (section 13). This is longer than the instrument's own lifespan (five years from commencement, though repeal does not affect existing obligations). Records must be kept even after the instrument is repealed if they relate to acts done while it was in force.

Eighth, the requirement to provide records to ACMA or an inspector on request (section 14) has a minimum notice period of two days but no maximum. If the request specifies two days, the person must comply within that tight window. Failure to do so means the exemption is not satisfied for that act.

Compliance involves a layered process that should be documented from the outset. The first step is to confirm that the device in question is indeed subject to a permanent ban under the Act. This requires checking the current permanent ban instrument. If the device is not banned, the exemption is unnecessary and the Act's general provisions for licensed devices apply.

Second, the person must ensure they are named in a notifiable instrument made under subclause 1(1) of Schedule 1. This is a prerequisite for all four items. The person should request inclusion from the relevant authority (likely ACMA) and obtain a copy of the notifiable instrument as published on the Federal Register of Legislation to verify it is in force. There is no indication that inclusion is automatic; a person must apply or be designated.

Third, for any act involving the device, the person must ensure compliance with the ARPANSA standard's general public exposure limits in places accessible by the public. This may require engineering assessments, site surveys or modelling to confirm that both potential (for possession) and actual (for operation) emissions do not exceed limits. Professional advice from a radiofrequency safety consultant may be needed.

Fourth, for operation, the person must choose one of the three methods in section 10. If using a dummy load, the load must be properly connected and verified non-radiating. If using a shielded enclosure, the enclosure must be tested to confirm emissions at its external surface do not exceed ambient noise levels. If using ACMA written permission, the person must apply for that permission under subsection 193(1) of the Act, wait for it to be registered as a notifiable instrument, and ensure it is not revoked. The person cannot begin operation until the permission is registered.

Fifth, for supply, the supplier must verify the recipient's identity and confirm that the recipient falls into one of the categories in section 11. This may require checking official identification, confirming the recipient's role or authorisation, and keeping proof. Supply to persons outside Australia carries additional export control compliance.

Sixth, implement a record-keeping system that captures data at the exact times required. For possession: create a record immediately upon taking possession. For operation: before operating, document methods to prevent interference; during operation, record any complaints or reports at the moment they are received; after each operation session, record frequencies, power and EIRP. For supply: record at the time of supply all required details including recipient identity and verification information. Use templates or automated systems to ensure no field is missed.

Seventh, retain all records for at least five years from creation, in a secure and accessible format. Be prepared to provide copies to ACMA or an inspector within a period of not less than two days as specified in a written request. Designate a person responsible for responding to such requests.

Eighth, monitor for changes: the ARPANSA standard may be replaced; the notifiable instrument naming the person may be revoked; the permanent ban applicable to the device may change; and the instrument itself will be repealed after five years. Set calendar reminders to check these instruments periodically.

Finally, keep abreast of any guidance or rulings issued by ACMA about this exemption, and seek legal advice if there is any doubt about whether a particular act or device is covered. The exemption is not a free pass; it is a conditional privilege that requires ongoing diligence.