Relevant national legislation, standards and corresponding obligations for equipment suppliers

The advent of smart devices, the Internet of Things and, more recently still, the Internet of Robotic Things means that more and more items of electrical and electronic equipment will incorporate and rely on wireless communications in the years ahead. This trend spans consumer and industrial (business-to-business) equipment and is not without regulatory concerns, not least managing spectrum usage. While the regulatory landscape continues to evolve, it is also different the world over. This article gives consideration to the existing radio communications and corresponding EMC/EMF legislation in Australia.

Australia is often a target for export for European and North American electrical and electronic equipment manufacturers. The country has a highly developed market economy and (particularly relevant to the sale of consumer goods) a largely urban population that is both affluent and tech-savvy. For those involved in determining and meeting product-specific legislation prior to placing electrical and electronic equipment on the market, Australian technical regulation also presents familiar hallmarks. This reflects upon the constitutional framework of Australia, which combines elements of the UK and U.S. systems of government. This also includes federal laws and regulation with respect to radio communications. The Australians have additionally imitated the European approach to electrical product certification, originally taking inspiration from the “New Approach to Technical Harmonization and Standards” in the mid-to-late 1980s.

Radiocommunications Act 1992

The Radiocommunications Act provides the overarching framework for federal laws applicable to radio communications. Spanning six chapters, various parts and a few hundred sections, the Act is a dense legal text with numerous provisions. Of particular note is that it gives the Australian Communications and Media Authority (ACMA) responsibility for managing and regulating the radiofrequency spectrum. Access to the radiofrequency spectrum is facilitated
by ACMA through licensing the operation of equipment, managing interference between services and ensuring industry compliance with mandatory standards. Hence, certain standards have legal bearing in the case of radio communications.

Specific Terms and Their Definitions

The Act introduces and defines some key terms, an understanding of which is the starting point for managing regulatory compliance. These key terms include:

• Supply – this is said to include supply (including re-supply) by way of sale, exchange, lease, hire or hire-purchase. The term is a key one as Australian legislation refers to “suppliers” rather than manufacturers, importers or distributors – although any of these can be a supplier. It would also seem to out-rule a company that exports, say, industrial machinery for use by a company-owned operation in Australia as being “a supplier.” This is, however, contestable and is discussed in further detail a little later in the article.
• Radiocommunications device – this is said to be:
  • A radiocommunications transmitter other than a radiocommunications transmitter of a kind specified in a written determination made by ACMA; or
  • A radiocommunications receiver of a kind specified in a written determination made by ACMA.
• Radiocommunications transmitter – this is said to be one of:
  • A transmitter designed or intended for use for the purpose of radiocommunication; or
  • Anything designed or intended to be ancillary to, or associated with, such a transmitter for the purposes of that use; or
  • Anything that is designed or intended for use for the purpose of radiocommunication by means of the reflection of radio emissions and that ACMA determines in writing to be a radiocommunications transmitter for the purposes of the Act.
• Radiocommunications receiver – this is said to be one of:
  • Anything designed or intended for use for the purposes of radiocommunication by means of the reception of radio emission; or
  • Anything designed or intended to be ancillary to, or associated with, such a thing for the purposes of that use; or
  • Anything that is designed or intended for use for the purpose of radiocommunication by means of the reflection of radio emissions and that ACMA determines in writing to be a radiocommunications receiver for the purposes of the Act.

General Regulatory Provisions

These are stipulated in Chapter 4 of the Act. Certain provisions are highly significant and worthy of note. These are summarized in Table 1.

Table 1: General regulatory provisions detailed in the Radiocommunications Act 1992

Specific Legal Instruments

According to ACMA, all electrical/electronic/radiocommunications/telecommunications devices are, at least notionally, required to meet the requirements of:

• The Radiocommunications Devices (Compliance Labelling) Notice 2014;
• The Radiocommunications Labelling (Electromagnetic Compatibility) Notice 2017;
• The Radiocommunications (Compliance Labelling – Electromagnetic Radiation) Labelling Notice 2014; and
• The Telecommunications (Labelling Notice for Customer Equipment and Customer Cabling) Instrument 2015.

In practice, this means suppliers of said devices must adhere to the Australian conformity assessment procedure. This spans the following:

Demonstrating Product Compliance

This is most commonly achieved by adherence to a standard and with testing to show this. A test report should identify the product (type, model and batch number), the test house, the standards tested to, the tests conducted, the test results, and (if appropriate) the methodology used to conduct the testing. For lower risk products, there is the option to test in-house. Australia also exercises mutual recognition for existing test results.[1]

Declaration of Conformity (DoC) and Record-Keeping

A declaration must be made by the supplier asserting that the product being supplied is compliant with the applicable standard(s) and that all products of this type supplied in the future will also be compliant. A product must not be supplied in Australia unless a DoC has been completed for that product. A DoC must be completed for all product families (note that there is an exemption for certain low-risk devices regarding EMC). There must also be a product description. This constitutes information that unambiguously identifies the product. Usually the test report provides detailed information including photographs or statements regarding batch or model numbers and identifying characteristics. A supplier should consider if they need to provide additional information that removes any doubt about product identification. Test reports/test house agreements/other documentation (e.g., risk assessments) are valuable records to keep. Records must be available for inspection by ACMA upon request, and the ACMA may request records as part of an audit or an investigation.

Supplier Registration

Before a supplier applies (or causes to apply) a compliance label (i.e., affix the RCM mark) to a product, the supplier must register on the national database as a “responsible supplier.” Registration is renewed annually.

Product Labelling

A compliance label must be applied to a product before it is supplied to the Australian market. This is the Regulatory Compliance Mark (RCM), shown in Figure 1. Note that there are scale/visibility requirements associated with its affixing, in much the same way that the European CE marking has a minimum height and spacing requirements.

All of the above is, however, “predicated on the supply of devices to the Australian market. This has the effect that, if the devices are not supplied to the Australian market, compliance labelling is not required.”[2] This, then, raises further questions around what “supply” is and who, by extension, is “a supplier”.

What Constitutes “supply”?

ACMA advises [3] that “supply” has “a very broad meaning under the Radiocommunications Act 1992 and can include lending of a device to another person or giving a device to another person where no money has changed hands.” In addition, “importation of a device by an individual for personal use only or the importation of a device by a company for company use only may not constitute supply.” While the latter is not definitive, it is a situation faced by any business that exports products to Australia for use in their own operations there. This could be R&D (custom built evaluation kits, prototypes and the like) or, for example, machinery used in automated storage and retrieval systems.

Of further note is that, while ACMA advises that labelling is not required when “no supply” has taken place, relevant radio communication compliance requirements must still be met. This infers that:

• Applicable standards and compliance levels must be identified and adhered to;
• Compliance must be demonstrated via technical documentation, potentially also testing; and
• Compliance records must be kept.

It is disputable as to whether a Declaration of Conformity needs to be completed, since this relates entirely to suppliers – the full title of the form for completion is in fact “Supplier’s Declaration of Conformity.”[4] Arguably, it would be wise not to complete the DoC if making the case that radiocommunications devices are not being supplied to the Australian market. However, this is really for a lawyer with expertise on the Australian legal system to advise upon.

Radiocommunications Compliance Requirements (Short Range Devices)

All transmitters must be operated under the authority of a radiocommunications license. However, it is possible to operate low powered short-range transmitters in Australia without having to hold individual licences for each device. To do this, the devices must operate in accordance with the Radiocommunications (low interference potential devices, or LIPD) Class Licence 2015. They must additionally comply with the requirements of the Radiocommunications (short range devices, or SRD) Standard 2014. This Standard adopts and modifies AS/NZS 4268:2017 Radio equipment and systems – Short range devices – Limits and methods of measurement.

Clause 6.1 of AS/NZS 4268:2017 states that:

“Evidence of transmitter compliance to this standard may be demonstrated by providing a complete ETSI or FCC test report. Australia and New Zealand requirements, for example, frequency assignments or transmitter power levels may be different to international requirements and compliance with any differences shall be addressed and documented.”

As such, the existing use of ETSI EN 301 893 V1.7.1 may provide sufficient evidence of compliance to
AS/NZS 4268:2017.

The maximum transmitter output powers are expressed in effective (or equivalent) isotropic radiated power (EIRP) which means antenna gain must be taken into account. By way of example, if the EIRP is specified as 4 Watts (+36 dBm) and the transmitter actual output power is 100 mW (+20 dBm), then the antenna gain must be no more than 16 dBi.

Low Interference Potential Devices (LIPD) Class Licence 2015

The LIPD Class Licence authorizes the operation of a wide range of low power radiocommunications devices in various segments of the radiofrequency spectrum. The class licence sets out the conditions under which many types of short-range devices may operate. These conditions always cover frequency bands of operation and radiated power limits. Other conditions are applied as necessary.

Equipment covered by the LIPD Class Licence include garage door openers, home detention monitoring equipment, personal alarms, and spread spectrum devices (devices that employ direct sequence or frequency hopping spread spectrum modulation techniques to transmit information including barcode scanners, point-of-sale networks, wireless or local radio area networks, and wireless private automatic branch exchanges). Such equipment does not require individual frequency coordination for interference management.

Ultra-Wideband Transmitters

The LIPD Class Licence includes arrangements supporting the use of general ultra-wideband devices in the bands 3.4-4.8 GHz and 6.0-8.5 GHz indoors or as mobile outdoor devices. Such devices include radiofrequency identification tags and high-speed short range wireless links used between cameras and video monitors and computers. The LIPD Class Licence also includes arrangements supporting the use of specific application ultra-wideband devices including ultra-wideband vehicular radar, in-ground ultra-wideband sensors and building material
analysis devices.

Other Devices

The LIPD Class Licence contains arrangements across a number of different bands for non-specific applications as well as for specific applications such as biomedical telemetry and radiofrequency identification (RFID). The LIPD Class Licence also covers industrial radar sensors, WiFi and Bluetooth devices operating in specified industrial, scientific and medical (ISM) bands.

Operating Conditions and Frequencies Under the LIPD Class Licence

Devices in scope of the LIPD Class Licence operate on an uncoordinated basis – they share the spectrum with other devices. The potential for interference between devices has been managed by placing limits on the operating parameters of devices (such as the type of device, radiated power levels, and areas and frequencies of operation).

The LIPD Class Licence authorizes any [legal] person to operate a device that uses a frequency:

1. On or within the range of frequencies mentioned in Column 2 of Schedule 1 of the LIPD Class Licence.
2. At a radiated power that does not exceed the maximum EIRP mentioned in Column 3 of Schedule 1 of the LIPD Class Licence.
3. Within any of the limitations mentioned in Column 4 of Schedule 1 of the LIPD Class Licence.

SRD Standard

Transmitters operated under the Class Licence including spread spectrum devices must meet the requirements of the Radiocommunications (Short Range Devices) Standard 2014 (the SRD Standard) where applicable or any standard mentioned in the limitations for those devices in the Class Licence.

Electromagnetic Compatibility (EMC) Requirements

While compliance labelling may not be applicable, Section 197 of Chapter 4, Part 4.2 of the Radiocommunications Act 1992 states that it is an offense for a [legal] person to cause interference to radiocommunications. As advised by ACMA, “realistically the only way to ensure this would be to have the device EMC tested to ensure it complies with the applicable EMC standard.”[5]

ACMA has published a mandatory EMC Standards List and radiocommunications devices must comply with the applicable standard or standards found on this List. The List is divided into two parts, with Part 1 detailing general standards for emissions and Part 2 product family and equipment standards. Part 1 is reproduced in Table 2, while readers may wish to consult the EMC Standards List directly (freely available online)[6] for Part 2 as it is quite long.

Table 2: Generic standards detailed in Part 1 of the EMC Standards List

It is important to note that ACMA does not specify which of its listed – and so mandatory – EMC standards a supplier must show their devices comply with. Suppliers can choose to demonstrate compliance to any one of the applicable Part 2 “Product family or equipment standards” or, if there is no applicable

Part 2 standard, then they must comply with one of the Part 1 “Generic standards.” The latter are “G1” and “G2” as per Table 2.

Electromagnetic Radiation (EMR) Requirements

Any equipment incorporating a transmitter will have to comply with radiofrequency exposure limits, if not under radio communications legislation (the 1992 Act and corresponding laws) then under various Australian state-based occupational health and safety laws. An equipment supplier has a duty of care not to expose persons to radiofrequency fields exceeding the limits specified by the Australian Radiation Protection and Nuclear Safety Agency in their publication, “Radiation Protection Standard for Maximum exposure Levels to Radiofrequency Fields – 3kHz to 300 GHz (2002).”[7]

As with EMC requirements discussed above, while compliance labelling is based upon supply to the Australian market and so may not be applicable in the case of a company’s own radiocommunications devices, such devices would still need to meet EMR compliance requirements outside of labelling. These include the following:

• Identify the requirements of the Human Exposure Standard and the compliance levels;
• Demonstrate compliance – ensure the product complies with the Human Exposure Standard. Compliance can be demonstrated through testing and/or assessment of supporting documentation; and
• Maintain compliance records – Compliance records are collections of documents (that may include test reports) that support a claim that the product complies with the Human Exposure Standard.

Human Exposure Standard 2014

Falling within this Standard’s scope are radiocommunications transmitters established for use in motion on land and capable of operating in the frequency band 100kHz to 300GHz (inclusive) with integral antenna. The device must not expose the user to electromagnetic radiation at a level greater than the basic restrictions for occupational exposure when the device is used in its normal position of use and in its normal mode of operation.

Conclusion

Australia offers an interesting case study of a country that has drawn inspiration from EU and U.S. laws, standards and enforcement practice concerning the regulation of radiocommunications devices but nevertheless plows its own furrow, with a good example being in how its federal legislation conceptualizes conditions of “supply.”

For manufacturers of electrical and electronic equipment giving thought to exporting wireless devices to Australia, it is important not to assume that the national technical regulation is the same as, say, the EU Radio Equipment Directive. Overlap is apparent, but specific requirements can and do differ. This makes knowing the detail of national legislation important, as is ever the case with global market access.

While this article has offered a primer, the author would always recommend directing case-specific questions to the national regulator, ACMA. Obtaining and reviewing the Australian mandatory EMC Standards List is also highly recommended.

Endnotes

1. More information is available at: https://www.acma.gov.au/step-2-show-your-product-complies
2. Personal communication between the author and ACMA
3. All quotations presented in this section derive from personal communications between the author and ACMA.
4. For further information see: https://www.acma.gov.au/step-3-sign-and-keep-records#declaration-of-conformity
5. Personal communication between the author and ACMA
6. See: https://www.acma.gov.au/publications/2019-06/standard/acma-mandated-emc-standard
7. This Standard is otherwise known as the ARPANSA Standard and is accessible from: https://www.arpansa.gov.au/sites/g/files/net3086/f/legacy/pubs/rps/rps3.pdf