The ACMA regulatory framework for products supplied to the Australian market includes regulatory arrangements covering:
- telecommunications customer equipment (CE) and customer cabling (CC)
- radiocommunications devices
- electromagnetic compatibility (EMC) performance of electrical and electronic devices, vehicles and devices with internal combustion engines
- electromagnetic energy (EME) from radio transmitters
These regulatory arrangements include labelling notices that require a supplier (an Australian manufacturer or importer) to ensure that a product meets applicable standard/s and that labelling and record-keeping requirements are met before the product is supplied to the market.
What is an agent?
An Australian manufacturer or importer may authorise an Australian-based agent to carry out the compliance requirements on their behalf. In order to be an agent, a written agency agreement must exist between the agent (in Australia) and the supplier (in Australia) that identifies the agent as the person responsible for the arrangements on behalf of the supplier. A copy of the agreement must be kept by each party along with the required compliance documentation.
An agent can act on behalf of an importer or manufacturer to meet their obligations under one or more of the ACMA regulatory arrangements. When given authority, an agent can arrange testing of a product, complete the Declaration of Conformity (DoC), label a product, and compile and hold compliance records.
In choosing an agent, a manufacturer or importer should choose a skilled practitioner who has an understanding of the intricacies of the relevant arrangements. Responsibility for failure to meet the regulatory arrangements ultimately lies with the importer or manufacturer.
An agreement between an overseas manufacturer and a local (Australian) consultant, under which the local consultant purports to assume regulatory responsibility for all products brought into Australia by one or more importers, is not an agency agreement and does not absolve the importer/s of their compliance obligations. In this case, each individual importer of the product (and not the local consultant) would be considered responsible for supply of the products they import.
What is an agency agreement?
A manufacturer or importer engaging the services of an agent must have a written agency agreement with the agent. Agency agreements establish a legal operational framework and outline the rights and responsibilities of all parties.
The agreement allows an agent to act as the representative for compliance with the ACMA regulatory arrangements.
At a minimum, agency agreements must address all aspects of the regulatory arrangement including labelling, testing, compliance record-keeping and signing of the DoC. The agency agreement must be written in unambiguous language and include details of who is responsible for maintenance of the compliance records.
The agency agreement should clearly allocate responsibility for any necessary changes to the documentation as a result of a modification or variation to the product. Variations to the product are often invisible to a cursory examination, but may significantly impact on the compliance of the product. Agency agreements should address issues such as configuration management and change notification between parties to the agreement.
The ACMA recommends that both parties to an agency agreement seek independent legal advice on the content of the agreement.
Examples of the types of relationships that require a written agency agreement include:
- An Australian manufacturer or importer of a product bearing the RCM and an agent in Australia who is registered on the national database.
- An importer (importer A) of a product who is registered on the national database and other importers (importer B, C, etc.) of that product who are not registered on the national database.
In the second example, importer A should have a separate agency agreement with each of the other importers (importers B, C, etc.). Each importer should hold a copy of the agency agreement, which includes identification and location of the importer (or agent) that holds the compliance records. Unless they are a member of the agency agreement, an importer must register on the national database, label the product and keep compliance records in their own right.
What form should agency agreements be in?
The ACMA does not prescribe the form of an agency agreement. Agency agreements can be stand-alone documents agreed to by the parties involved or incorporated into other legal agreements between those parties. Persons signing agency agreements should ensure that they fully understand the consequences and requirements arising from entry into the agreement.
What are the responsibilities under an agency agreement?
Maintenance of agency agreement
The importer or manufacturer generally has responsibility for the compliance documentation. The agency agreement may delegate this responsibility to the agent. Compliance documentation for a product must always contain a copy of any agency agreements that apply to that product.
Accountability for failing to maintain records will be examined on a case-by-case basis as part of investigations by the ACMA into expected non-compliance with any of the obligations under the various arrangements.
Declaration of Conformity
The Declaration of Conformity (DoC) is a legal document. It is a statement by the signatory that the tested product and all future products of that type meet the requirements of applicable technical standards. Where an agent signs the DoC on behalf of the manufacturer or importer, the agency agreement must provide for such authority.
The commitment made by the agent on behalf of the manufacturer or importer should be based on a sound understanding (by all parties) of the requirements of the compliance arrangements and consequences of failing to meet those requirements.
Agent registration under the ACMA labelling arrangements
Before labelling a product, a supplier must register on the national database. Therefore, an agent who has assumed supplier compliance responsibilities must register on the national database. The national database is jointly used by the ACMA and the Electrical Regulatory Authorities Council (ERAC) for the Electrical Equipment Safety System (EESS).
Because the EESS does not allow agents to assume the compliance responsibilities of suppliers, specific registration arrangements are in place for agents under the ACMA regulatory arrangements. These arrangements are outlined on the Supplier registration page.