If you sell radiocommunications products in Australia you need to make sure that you’re not supplying a ‘non-standard device’.
A non-standard device poses a high risk as it may substantially block or disrupt vital communications systems, including those used by emergency services. It is an offence to supply or operate a non-standard device and substantial penalties may apply. You’re also risking your business’s reputation.
The regulatory arrangements for radiocommunications equipment include standards at the point of manufacture or import, and licences for operators of radiocommunications equipment. These arrangements seek to ensure that communications devices and services work for all Australians.
There are two areas of particular concern that suppliers need to be careful of:
- modifying a device after it has been tested and labelled—but not having it retested
- importing products for use in Australia that are configured for overseas markets.
Modifying devices without retesting
Before a radiocommunications device is supplied in Australia, it must be tested to meet any relevant ACMA-mandated standards. A ‘standard’ device is compliant and can be legally sold and operated in Australia. In many cases, it must also be labelled to indicate that it complies with those standards.
However, the ACMA has found that some suppliers have modified radiocommunications devices after they’ve been manufactured or imported. While the devices were tested before modification and found compliant, the suppliers did not have the devices retested after modifying them, making them potentially non-compliant.
If a device’s function is modified in any way after it has undergone technical testing, the previous testing may no longer be applicable and it cannot be lawfully supplied without reassessment against the applicable standards. Depending on the type of modification, the device may need to be tested against both the original standards and any other standards that now apply.
Importing and supplying devices configured for overseas markets
The ACMA has found that some suppliers have imported and sold devices configured for overseas markets that were not tested to the relevant ACMA-mandated standards or, where required, labelled with a compliance mark. These devices used the incorrect frequency in Australia and could have substantially disrupted or blocked vital communications systems.
All suppliers—even those familiar with the law—should be careful to only import and supply devices that have undergone the required testing, met all the compliance requirements and been configured to meet all applicable Australian requirements.
Understanding the law
As a supplier, you must meet a range of compliance requirements before selling a radiocommunications device in Australia. These include record-keeping obligations, labelling requirements and, most importantly, ensuring the device complies with ACMA-mandated technical standards.
Establishing product compliance is the responsibility of the importer, Australian manufacturer or their authorised agent in Australia. An importer includes a person who organises the importation of devices, including over the internet, for shipment from an overseas distributor to a recipient in Australia.
The laws administered by the ACMA seek to ensure that radiocommunications devices supplied in Australia operate on the correct frequencies and meet safe electromagnetic energy (EME) emission limits set by ARPANSA, so that other devices are not unintentionally interfered with.
The ACMA has various compliance options available when dealing with issues of non-compliance—from education and awareness to seeking a court prosecution. We will consider all the facts of the case when choosing an appropriate compliance response.
Under section 160 of the Radiocommunications Act 1992, a person must not supply a device that the person knows is a non-standard device. This offence could incur a court-imposed penalty of over $25, 000 (120 penalty units) if the offender is an individual. For body corporates the penalty may be over $300 000 (1,500 penalty units). It is also an offence (under section 187 of the Act) to apply a compliance label before meeting the requirements of the relevant labelling notice(s), including appropriate testing. The court-imposed penalty for this offence may be over $21,000 (100 penalty units).