Radiocommunications (Jamming Equipment) Permanent Ban 2023

The instrument revolves around three defined categories of jamming equipment, each with its own definition and exceptions.

PMTS jamming equipment (s 6) is equipment designed to have an adverse effect on radiocommunications and capable of operating on a frequency within a PMTS frequency band (the bands used for public mobile telecommunications services such as 3G, 4G, and 5G). It also includes equipment designed to block radio emissions between a base station and a mobile station used in providing a public mobile telecommunications service. The definition is broad: the equipment need not be exclusively designed for jamming; it is enough that jamming is one design purpose or consequence. However, two-way communication equipment (defined as equipment whose principal purpose is carrying communications in both directions between persons or things) is excluded from this category. So a standard mobile phone, which both transmits and receives, is not PMTS jamming equipment even if it incidentally could disrupt other communications.

RLAN and RPAS jamming equipment (s 7) covers equipment capable of operating on a frequency within one of seven listed frequency bands (433.05-434.79 MHz, 915-928 MHz, 2400-2483.5 MHz, 5150-5350 MHz, 5470-5600 MHz, 5650-5875 MHz, and 5925-6425 MHz) and designed to have an adverse effect on radiocommunications or to block emissions between RLAN devices or between RPAS devices. These bands are used by Wi-Fi (RLAN) and drone control links (RPAS). Two important exceptions apply. First, equipment whose principal purpose is an industrial, scientific, medical or domestic application (such as microwave ovens, plastic welders, medical diathermy equipment, or chemical analysis equipment) is not RLAN and RPAS jamming equipment, even if it incidentally operates in those bands. Second, two-way communication equipment is again excluded.

RNSS jamming equipment (s 8) covers equipment designed to have an adverse effect on radiocommunications and capable of operating on a frequency within an RNSS frequency band (bands designated for satellite navigation services such as GPS, GLONASS, Galileo). It also includes equipment designed to block radio emissions between an RNSS transmitter and an RNSS receiver. There is an important carve-out: equipment designed to transmit information that can be used to determine both the location of an RNSS receiver and the local time at that location is not RNSS jamming equipment. This preserves the legitimacy of devices that transmit positioning, navigation and timing (PNT) information, even if they operate in RNSS bands. The note clarifies that such information is necessary but may not be sufficient to determine location and time.

The instrument also defines related terms such as "PMTS frequency band," "RNSS frequency band," "RLAN device," "RPAS device," "mobile station," and "public mobile telecommunications service" by cross-reference to other legislative instruments and the Telecommunications Act 1997. Notably, the definition of "frequency band" in s 5(2) provides that a reference to a frequency band includes all frequencies greater than the lower number up to and including the higher number. This means the lower boundary is exclusive. For example, the band "433.05 MHz to 434.79 MHz" includes frequencies above 433.05 MHz up to 434.79 MHz, but not 433.05 MHz itself. This subtle point could be material for equipment operating exactly at a boundary frequency.

The permanent ban directly affects any person or business that manufactures, imports, supplies, possesses, or uses equipment falling within the three categories. This includes:

• Manufacturers and importers of jamming devices, whether those devices are marketed as signal blockers, GPS jammers, Wi-Fi disruptors, or drone take-down systems. From commencement, they cannot legally supply such equipment into the Australian market.

• Retailers and online sellers offering jamming equipment for sale, including through e-commerce platforms, trade fairs, or specialist security equipment outlets. The ban applies to supply regardless of the end user.

• End users who currently possess or use jamming equipment. Possession of banned equipment is an offence under s 173 of the Act. This affects businesses such as cinemas, theatres, schools, prisons, or security firms that have deployed mobile phone jammers to prevent disruptive calls or to secure areas. It also affects private individuals who own GPS jammers or Wi-Fi blockers.

• Users of drone jamming equipment such as counter-UAS systems used by airports, critical infrastructure operators, or law enforcement. Those users must ensure their equipment does not fall within the definition of RLAN and RPAS jamming equipment, or if it does, they must rely on an exemption elsewhere in the Act (for example, where the ACMA has issued a licence or instrument authorising use for security purposes). The ban itself does not create exemptions for law enforcement; any authority to use jammers would need to come from separate provisions.

• Businesses operating in the security and surveillance sector that supply or recommend jamming technology to clients. They face compliance risk if they continue to deal with such equipment.

• Importers of consumer electronics that operate in the RLAN and RPAS frequency bands must ensure their products are not designed to jam. The exception for ISM applications protects microwave ovens and similar devices, but a product that combines jamming functionality (even as a secondary feature) would be captured.

• Two-way communication equipment is excluded, so manufacturers and users of two-way radios, mobile phones, and satellite phones are not affected, provided the equipment is not also designed to jam.

• RNSS receivers and GPS devices are not themselves banned; only equipment designed to jam RNSS signals is banned. The PNT information exemption protects devices that transmit location and time data, such as differential GPS correction transmitters or timing beacons.

The ban also indirectly affects the supply chain for components used in jamming equipment. While the ban is on the equipment itself, dealing in components specifically designed for jamming (such as dedicated jamming modules) could constitute possession or supply of equipment if the components meet the definition of "equipment" under the Act. The instrument does not define "equipment" separately from the Act’s definition, which is broad.

The instrument imposes no positive duties on any person. It does not oblige anyone to test, label, or report anything. Its sole legal effect is to designate certain equipment as permanently banned under s 173 of the Radiocommunications Act 1992. The duties arise from that section: a person must not manufacture, possess, supply, offer for supply, import, or use banned equipment. The ban is strict liability in the sense that the Act generally does not require proof of knowledge that the equipment is banned, although defences (such as reasonable mistake of fact) may be available under the Act.

Rights created by the instrument are few. Persons affected have the right to apply to the ACMA for a licence or exemption under other provisions of the Act (for example, s 174 of the Act allows the ACMA to declare that a particular device is not a prohibited device, though that power is not exercised in this instrument). The instrument itself does not provide any mechanism to seek an individual exemption. Any right to use jamming equipment would have to be found elsewhere in the Act, such as under a spectrum licence or a class licence that authorises the operation of the device for a specific purpose. For instance, law enforcement agencies may be authorised under other instruments to use jammers for counter-terrorism or public safety operations, but that authority is not granted by this instrument.

The instrument also preserves the right of manufacturers and importers to deal in two-way communication equipment and ISM equipment, provided those devices do not have jamming as a design purpose. The principal purpose test for ISM equipment (s 7(2)) is objective: the equipment must be for industrial, scientific, medical or domestic applications, not for radiocommunications. This test may require a factual assessment of the equipment’s intended function.

The exclusion for RNSS equipment that transmits PNT information (s 8(2)) creates a right to deal in such equipment. However, the note caveat that the information "may not be sufficient to determine location and time" introduces ambiguity: if a device transmits PNT information but also has jamming capability, the exclusion may not apply.

The instrument does not set penalties; penalty provisions are in the Act. Under s 173 of the Radiocommunications Act 1992, a person who deals with permanently banned equipment faces a maximum penalty of 500 penalty units for an individual and 5,000 penalty units for a body corporate. As of July 2024, one penalty unit is $313, making the maximum fine $156,500 for an individual and $1,565,000 for a body corporate. Imprisonment may also apply for individuals: s 173 provides for up to five years’ imprisonment for a first offence and up to 10 years for a subsequent offence. The Act also provides for infringement notices (on-the-spot fines) issued by the ACMA, which are lower but still significant.

Enforcement is by the Australian Communications and Media Authority (ACMA). The ACMA can investigate suspected breaches, issue warnings, infringement notices, or commence prosecution in the Federal Court. It also has powers to search premises, seize equipment, and require documents.

The instrument itself does not create any new enforcement powers; it simply expands the scope of existing prohibitions. The revocations in s 4 mean that the earlier declarations under which some cases were previously pursued are replaced by this broader ban. Defences under the Act, such as the defence of complying with a licence or an instrument made under s 174, remain available. But a person who uses a jammer for a supposedly legitimate purpose (like preventing unauthorised phone use in a prison) without a specific authorisation would still commit an offence.

There is also potential for civil penalty proceedings. The Act provides for civil penalties in certain circumstances, including for dealings with prohibited devices. The maximum civil penalty for a body corporate is 10,000 penalty units (approx. $3.13 million) per contravention.

The instrument sits within a broader legislative framework centred on the Radiocommunications Act 1992. Its key interactions are:

• Radiocommunications Act 1992: The ban is made under ss 172(1) and 174. Section 173 is the operative prohibition. The Act also contains provisions for licences (spectrum, apparatus, class), which could authorise the operation of devices that would otherwise be banned. For example, the ACMA could issue a class licence authorising the use of jammers for a specific purpose, overriding the permanent ban. However, no such licence currently exists for these categories.

• Telecommunications Act 1997: The definition of "communications" in this instrument cross-references s 7 of the Telecommunications Act, which is relevant to interpreting jamming effects. "Public mobile telecommunications service" is also defined by reference to that Act.

• Radiocommunications (Low Interference Potential Devices) Class Licence 2015: The definition of "RLAN device" and "RPAS device" refers to this class licence. Devices operating under the LIPD class licence (e.g., Wi-Fi, Bluetooth, short-range devices) are not jamming equipment unless they are designed to jam. This class licence also contains conditions on power levels and interference management.

• Spectrum plan: The definition of "RNSS frequency band" relies on the spectrum plan. Changes to the spectrum plan could affect the scope of the RNSS jamming definition.

• Previous declarations: The revocation of the 2011 and 2014 declarations means that the previous, narrower bans are replaced. Those declarations were time-limited; this ban is permanent. The revocation also ensures a single unified ban rather than multiple overlapping instruments.

• State and territory laws: Not directly referenced, but jamming equipment may also be regulated under state criminal laws (e.g., laws against interfering with electronic communications) or privacy laws. The federal ban does not oust state jurisdiction. Additionally, possession of jammers could be relevant to terrorism, security, or telecom offences at state level.

• Customs Act 1901: Importation of banned equipment is prohibited under the Customs (Prohibited Imports) Regulations, but the Radiocommunications Act ban also triggers the Customs Act. Dealers who import jammers may face both ACMA enforcement and customs action.

• Spent Convictions and criminal law: Conviction under s 173 may have broader implications for individuals, including effects on professional registration, visa status, or security clearances.

This instrument was made on an unspecified date in 2023 and registered on the Federal Register of Legislation. It has not been amended since commencement. It revokes two earlier instruments:

• Radiocommunications (Prohibition of PMTS Jamming Devices) Declaration 2011 (F2011L00346)
• Radiocommunications (Prohibited Device) (RNSS Jamming Devices) Declaration 2014 (F2014L01776)

Those earlier declarations were made under s 174 of the Act and declared certain PMTS jamming devices and RNSS jamming devices to be prohibited devices. The 2011 declaration was subject to a sunset clause (it would have ceased on 31 March 2021 but was extended). The 2014 declaration did not cover RLAN/RPAS jamming. This 2023 instrument consolidates and expands the prohibitions while making them permanent. There is no amendment history because it is a new instrument that has not been varied.

The notes to s 4 refer to item 49 of Schedule 4 to the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020. That item empowered the ACMA to make a legislative instrument that revokes the 2011 declaration and replaces it. This 2023 instrument exercises that power.

There is no known litigation directly concerning this instrument, given its recent commencement. However, there have been cases under the earlier declarations and under s 173 of the Act. The instrument’s text does not reference any case law. Litigation that may be relevant includes:

• Prosecutions by the ACMA for dealing with PMTS jammers under the 2011 declaration. Those cases turned on whether the device in question fell within the definition of "PMTS jamming device" and whether a defence of reasonable mistake applied. The new definition is broader (it includes equipment designed to have an adverse effect, not just equipment designed to block communications).

• Cases involving GPS jammers under the 2014 declaration. Those may offer guidance on how courts interpret "designed to have an adverse effect" and the meaning of "capable of operating on a frequency within an RNSS frequency band."

• Administrative review decisions by the Administrative Appeals Tribunal in relation to ACMA decisions to refuse a variation or revocation of a ban. The instrument itself does not provide for such applications, but a person affected could challenge the validity of the instrument on procedural grounds (e.g., that it was not made for a proper purpose or is ultra vires).

No case law is cited in the instrument. Practitioners should be aware that the definitional nuances (e.g., "designed to have an adverse effect," "principal purpose," "capable of operating on a frequency") are likely to be litigated given the high stakes.

Several traps exist for the unwary.

1. The lower bound of a frequency band is exclusive. Section 5(2) clarifies that a frequency band includes all frequencies "greater than but not including the lower frequency, up to and including the higher frequency." So a device operating exactly at 433.05 MHz (the lower bound of the first RLAN band) is not operating within that band. This could allow some devices to technically escape the definition if they operate at the exact edge. However, the upper bound is inclusive, so 5875 MHz is included in the band 5650-5875 MHz.

2. The "designed to have an adverse effect" test is subjective but objective. The definitions use "designed to" rather than "capable of". This means the equipment’s design intent, not merely its effect, is key. A device that inadvertently interferes with radiocommunications (e.g., a poorly shielded electronic product) is not captured unless it was designed to cause that interference. However, "design" may be inferred from the equipment’s specifications, marketing material, or user manuals. Importers of cheap electronics that happen to emit strong signals in these bands should verify whether the manufacturer intended interference.

3. The ISM exception for RLAN/RPAS jamming requires the principal purpose to be ISM, not radiocommunications. A microwave oven that also has a Wi-Fi module for remote control may still be captured if the Wi-Fi module is designed to jam other devices (unlikely but possible). More problematic: a device that is sold as a medical diathermy machine but also includes a jammer for "security" would lose the exception.

4. Two-way communication equipment exception is narrow. It only applies if the principal purpose is two-way communications. A device that is primarily a jammer but also has limited two-way communication capability (e.g., a jammer with a built-in walkie-talkie) would not be excluded. The exception does not cover one-way receiving equipment (like a simple GPS receiver) or devices that only transmit (like a drone controller that does not receive).

5. The RNSS PNT information exception is limited. It only applies if the equipment is designed to transmit PNT information. That excludes RNSS jammers that also happen to transmit some location data as a side effect. A device that jams GPS but also transmits a spoofed GPS signal is likely still captured.

6. The ban covers possession, not just supply. A person who bought a jammer before the ban came into force but continues to possess it commits an offence from the commencement date. There is no amnesty or grace period. The only lawful option is to dispose of the equipment (e.g., surrender to ACMA or export). Use remains illegal.

7. The ban is permanent. Unlike the earlier declarations, which required periodic renewal, this instrument has no sunset clause. Once in force, it remains in force unless revoked or amended by subsequent instrument. This increases long-term compliance risk for any business with jamming equipment in supply chains.

8. The definitions of "PMTS frequency band," "RNSS frequency band," and "mobile station" are dynamic. They refer to instruments that may be amended or replaced. For example, the spectrum plan might add new RNSS frequency bands. A device that was not captured when the instrument commenced could become captured later without a change to this instrument. Compliance requires ongoing monitoring of those external instruments.

9. The note about "information mentioned in subsection (2)" for RNSS jamming is ambiguous. It says the information is necessary but may not be sufficient to determine location and time. This could be used by the ACMA or a court to argue that a device that transmits only partial PNT information is still excluded, but the lack of clarity creates litigation risk.

10. The instrument does not include exceptions for law enforcement, national security, or emergency services. Those agencies must rely on separate licences or authorisations under the Act. If they use jammers without such authorisation, they commit an offence, even if the jammer is used for legitimate operational reasons. A prudent agency will ensure it has a written authorisation from the ACMA.

11. Application to components. The definition of "equipment" in the Act is broad. A standalone jamming module that is designed to block mobile signals but is sold as a component for integration into other products may itself be considered equipment. Importing such modules could be an offence. Similarly, a software-defined radio (SDR) that is designed to jam on specific frequencies could be captured if its design purpose includes jamming.

Compliance requires understanding whether any device in your possession, manufacture, supply, or import falls within the three banned categories. There is no registration or notification required. The primary obligations are negative: do not deal with banned equipment. Steps to achieve compliance include:

1. Conduct a product audit. Review all products, prototypes, and stock to determine if any are designed to operate in the relevant frequency bands and have a design purpose of having an adverse effect on radiocommunications. Pay particular attention to devices marketed as "signal blockers," "jammers," "interference generators," "GPS cancellers," "Wi-Fi disruptors," or "drone defeaters." Also examine devices sold for counter-surveillance, security testing, or privacy protection.

2. Review technical documentation including schematics, firmware specifications, user manuals, marketing materials, and patent filings. The "designed to" test can often be evidenced by such documentation. If the documentation suggests jamming as a feature, the device is likely captured.

3. Assess ISM and two-way communication exceptions. If a device operates in an RLAN band but also has an ISM purpose, confirm that the principal purpose is indeed ISM, not radiocommunications or jamming. Document the primary function. For two-way communication equipment, ensure the principal purpose is bidirectional communications, not jamming even as a secondary mode.

4. Verify frequency boundaries. If a device operates near the edge of a listed band, check whether the operating frequency is exactly at the lower bound (which is exclusive) or above it. A device operating at exactly 433.05 MHz is not in the band. But be cautious: if the device’s frequency range includes 433.06 MHz, it is captured.

5. Secure legal authorisation if necessary. If you have a legitimate operational need to use jamming equipment (e.g., for a prison, military base, or critical infrastructure), seek a written authorisation from the ACMA under s 174 of the Act. The ACMA has the power to declare that a device is not a prohibited device for specified persons or purposes. Such declarations are published and may contain conditions. Relying solely on internal authorisation is not sufficient.

6. Cease dealing immediately. If you identify banned equipment in your supply chain, stop manufacture, import, supply, and use. Do not sell existing stock. Possession alone is an offence. Options include destroying the equipment, exporting it (if lawful under destination country laws), or surrendering it to the ACMA. Note that exporting may still require a customs permit.

7. Review contracts and supply agreements. If you sell to customers who might use jammers, you should ensure your terms of sale prohibit use in Australia or require the customer to obtain authorisation. However, this does not protect you from liability for supply.

8. Monitor changes to external instruments. The definitions of frequency bands, "RNSS frequency band," "mobile station," and "LIPD class licence" are all dynamic. Subscribe to the Federal Register of Legislation for changes to these instruments. Re audit whenever a relevant instrument is amended.

9. Train staff on the ban, especially those in product development, procurement, sales, and compliance. Ensure they understand the definitions and the importance of not dealing with jamming equipment. Implement internal processes to screen new product designs.

10. Document compliance efforts. In the event of an ACMA investigation, maintaining records of product assessments, design documents, and correspondence with suppliers can help demonstrate that you took reasonable steps to comply, which may be relevant in a defence or penalty reduction.

11. Seek legal advice if there is any doubt about a product. The definitions are complex and the penalties severe. Given the permanent nature of the ban and the potential for strict liability, proactive legal review is advisable before introducing a product into the Australian market.