Today’s correspondent not only raised the issue, they also provided the answer.  The gist of the issue is RFS members:

… purchasing AUD$30 radios from eBay, known as the Baofeng UV5R, which is a cost effective radio from the overseas market. However, this draws some interesting attention from the ACMA [Australian Communications and Media Authority]:

It’s concerning from a legal liability perspective of volunteers providing their own seemingly illegal communications equipment … From my limited understanding – this would mean non-type approved radios being used on commercial frequencies.   

I infer that the question I’m being asked is ‘Am I reading that correctly?’ and the answer is ‘yes’.

Unauthorised equipment

The Radiocommunications Equipment (General) Rules 2021 (Cth) r 11(1) says:

A person must not possess a device that does not comply with each general standard that is prescribed for it, if the possession is for the purpose of operation.

And, if you have it in your possession, and it works, then it is presumed you have it for the purpose of operation (r 11(2); see also Radiocommunications Act 1992 (Cth) s 48).

A manufacturer or importer are in breach if they make available a radio that is not labelled to confirm it applies to the relevant standards (r 25 and 27; Schedule 3).

According to the ACMA website, possession of an unlicensed radio carries maximum penalties of:

  • “fines of up to $412,500” [and]
  • “up to 2 years in prison”

That webpage was last updated on 29 March 2023. The Radiocommunications Act 1992 (Cth) s 47 ‘Unlawful possession of radiocommunications devices’ provides for maximum penalties, for an individual, of 2 years imprisonment and a fine of 1500 penalty units. The Crimes (Amount of Penalty Unit) Instrument 2023 (Cth) commenced on 1 July 2023 and provides that a penalty unit is $313 so the maximum fine, after 1 July 2023 is $469,500. No doubt it will go up again on 1 July 2024.

 I cannot comment on whether any particular radio meets the relevant standards, but we can note the advice from ACMA to be wary of buying radios from overseas.  And the website from South Eastern Communications says:

Baofeng Brand Radios are ALL ILLEGAL

ALL Baofeng Radios Are Illegal To Use In Australia. Most of these radios come in Illegally and are Programmed with Police and other frequencies that interfere with licensed users and Public Safety Radios. These Radios are Dangerous.

Models Such As:

UV5R …

Licences

With respect to a licence, members of the RFS are not required to have a licence to operate RFS radios provided they have been authorised by the RFS and are using the radio ‘in the course of performing the person’s functions or duties as a member or employee of a public safety body…’ Radiocommunications (Public Safety and Emergency Response) Class Licence 2013 (Cth) s 3 definition of ‘public safety body’ and ss 6 and 7).  It would be no defence to say that the radios purchased from ebay were being operated on the RFS licenced frequency by RFS firefighters.  Keeping uncertified radios off the licenced frequency is the very point of the prohibitions and one can infer that the RFS will only authorise people to use radios supplied by the RFS.

A class licence is also in place authorising anyone, to use UHF CB radio – see ACMA Citizen band radio stations class licence (15 January 2024) and the Radiocommunications (Citizen Band Radio Stations) Class Licence 2015 (Cth).

For licences issued to the RFS to allow the RFS to operate its communications network see: https://web.acma.gov.au/rrl/calient_search.client_lookup?pCLIENT_NO=5832

The presence of these class licences means that individuals do not need to obtain a licence issued in their name but they must comply with the terms of the class licence. The class licence has no impact on the prohibition not to possess or use an uncertified radio device.

Conclusion

Members of the RFS, and in fact anyone, who is in possession of, or uses, a two-way radio that is not certified for use in Australia commits a serious offence.

The prohibition is not limited to ‘non-type approved radios being used on commercial frequencies’; it is a prohibition on the possession of any non-approved radio and the use of ‘non-type approved radios’ on any frequency.

POSTSCRIPT

After writing this, Dave wrote a comment (https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55120) drawing my attention to s 49 of the Radiocommunications Act 1992 (Cth). Section 49(1) says:

(1) A person does not contravene section   46 or 47 by operating a radiocommunications device, or having a radiocommunications device in his or her possession, in the reasonable belief that the operation or possession was necessary for the purpose of:

(a) securing the safety of a vessel, aircraft or space object that was in danger; or

(b)  dealing with an emergency involving a serious threat to the environment; or

(c) dealing with an emergency involving risk of death of, or injury to, persons; or

(d) dealing with an emergency involving risk of substantial loss of, or substantial damage to, property; or

(e) if a national emergency declaration is in force–dealing with the emergency to which the declaration relates.

That does not change my opinion.  What is an emergency is a debatable point.  For a fire service, responding to events that are in its normal operations is not an emergency. If my house is on fire, it is my emergency, it is not, or should not be, an emergency for the local fire brigade, for them it’s another day at the office.  Fire services do face emergency when events overwhelm their capacity or where the event ‘…  is beyond our current arrangements, thinking, experience and imagination …’ (The Australian Disaster Preparedness Framework (Department of Home Affairs, 2018, p. 5)). In those circumstances I’m sure ‘all bets are off’ and volunteers can do whatever the need to do with whatever equipment they can get. But that is not the same a brigades or individuals importing radios that do not meet the ACMA requirements during normal operations. Buying and possessing the radios before the emergency is not the same as using them in an emergency.

This section might apply for example if an emergency vehicle was involved in a collision and a bystander used the installed radio to call for assistance. They are probably not covered by the class licence but that would be no offence.

The Red Cross/Red Crescent International Disaster Response Law project identified that a common impediment to international disaster relief was getting permission for incoming services to use their radio equipment. This section would be applicable to say a crew on a ship using their radios to communicate with the bridge to let them know of a danger.

It would be relevant to RFS volunteers if they found themselves in difficulty and had access to a radio that they were not licensed to use or which did not meet the necessary standard, but used to call for assistance.  One might draw an analogy with a gun. It is unlawful to be in possession of a gun without a licence and it must be stored in a particular way. Carrying an unlicensed gun is a serious offence, but it is still lawful to use the gun in circumstances justified by the law of self-defence. It’s lawful to use a gun in an emergency, it’s not lawful to possess one when there is no emergency even if you buy it because you think you may, sometime in the future, need it in an emergency.

Buying a non-approved radio and being in possession of it – just in case – is I suggest similar and would not be covered by s 49. If s 49 did allow RFS volunteers to buy non-compliant radios it would, in effect, be saying that this Act does not apply to the RFS when clearly it does. The RFS has significant licences and there is  Radiocommunications (Public Safety and Emergency Response) Class Licence 2013 all of which makes it clear that the RFS and other emergency services are bound by the Act and the permissions they are given are defined.

Another interesting aspect is s 49(2) which says:

In proceedings for an offence against subsection   46(1) or 47(1), the burden of proving any of the matters referred to in subsection   (1) lies on the defendant.

The normal rule is that a defendant need only introduce some evidence to raise a defence and then the prosecution must prove, beyond reasonable doubt, that the defence does not apply.  In this case it is the defendant who must prove, on the balance of probabilities that the defence does apply.

The defence requires a ‘reasonable belief that the operation or possession was necessary’ not merely convenient or helpful.  Further the requirement that the defence is ‘reasonable’ is objective that is a reasonable person would or could hold that belief. A reasonable person would also be aware of the communications equipment provided by the RFS and that it is possible to buy, in advance, approved radio devices including  UHF CB. If the RFS does not endorse this equipment (see https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55114) that’s a further ‘strike’ against a ‘reasonable’ belief that the use of the radios is necessary.

From a risk management perspective an RFS volunteer could ask ‘what is the risk?’ On the one hand its being convicted of a reasonably serous criminal offence v whatever benefit they think they might get from having the radio. To mitigate the risk one could either try to prepare to run a defence, or not buy non-approved radios particularly when it is possible to buy lawful, approved radios.

The type of radio

This blog is not the place to resolve the status of the radios. I referred to the Baofeng UV5R as that is what the person who asked the question referred to. They also referred me to South East Communications who say ‘ALL Baofeng Radios Are Illegal …’  Mark says ‘The beofeng radios are permitted on 2 metres and 70 cm’ (https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55124). Dave says ‘Baofeng Radios are unsafe to use as they do not meet electrical safety testing standards …’ (https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55120). Dave also says ‘NSW RFS is a digital radio network Baofeng UV5R is not  digital radio it will not work on the RFS/GRN  so it a bit of a useless email’ (lhttps://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55116) but Chris (via Facebook) says ‘members do use them at incidents shitloads’ and others also report seeing them being use. Andrew (also via Facebook) says ‘brigades and individuals buy these radios as ‘cheap’ fireground radios on the VHF range. Not digital, P25, PSN but could include UHF PMR frequencies if that district still uses UHF PMR.’   

There is no consensus amongst the readers as to who uses them or why or whether they are or are not compliant, but it is not necessary to resolve those issues to identify the law. The law says it is unlawful to possess or use a radio that does not meet the standards prescribed and/or which is not labelled to certify its compliance. That’s true whether we’re talking about the Baofeng radios or any other brand. And it’s also true if there’s some reason why operating these radios is better than UHF CB.

Two people have pointed out that there is a class licence for amateur radio operators.  Peter B (https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55131) says:

Also, if the member is a licenced Amateur Radio operator, they can import, use S.46(3), possess S.47(3), and sell non-approved equipment as long as the device is not on any banned ACMA equipment lists—S.167, S.172. Baofeng radios are not on the list, so you can import and sell them if you fit the above.  Any HAM operator 2024.

I cannot confirm that. I have referred to, in another comment, the AMCA webpage on the amateur class licence (https://www.acma.gov.au/amateur-class-licence). It says

The device or equipment you operate under your licence must comply with the Radiocommunications Equipment (General) Rules 2021 (the General Equipment Rules).

If your device or equipment does not meet these rules, you’ll need a permit to supply, use or have it. This is separate from getting a licence.

Even if an amateur radio operator can import, use, possess or sell the equipment that does not make it legal for someone else, who bought it, to possess or use it. And the question I was asked was not ‘I am a licensed Amateur Radio Operator and a member of the RFS…’ or ‘A group of RFS members who are also Amateur Radio Operators want to set up a radio network …’  If that were the question the issue of amateur radio operators may be relevant, but it’s not really relevant to the question that I was asked rather than a question I might have been asked.

Aussie Dave (https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55132) asks

…why are members of the RFS needing to buy there own radios in the first place, would think that if it was part of required equipment for member’s to have radios, they would be supplied. The RFS would surely have the required power to ban member’s from having them on the fire ground if they were poising a risk to communications but would suggest since they have not there is some benefit to the RFS, illegal or not, having members so equipped.

The RFS does supply radios but clearly some must think not enough or not sufficient.  The RFS has limited power to ban members from having them. It may give directions (see https://australianemergencylaw.com/2024/04/01/nsw-rfs-volunteers-buying-their-own-radios/#comment-55114) but it’s up to members on the ground to enforce them and if a brigade is buying the radios with the approval of a brigade captain there may be no-one there to stop them. I suspect prohibiting them from the fire ground is much harder than it sounds.

Having read the comments and s 49 I’m willing to delete the words ‘and in fact anyone’ from the conclusion. Otherwise my opinion remains:

A member … of the RFS, and in fact anyone, who is in possession of, or uses, a two-way radio that is not certified for use in Australia commits a serious offence.

The prohibition is not limited to ‘non-type approved radios being used on commercial frequencies’; it is a prohibition on the possession of any non-approved radio and the use of ‘non-type approved radios’ on any frequency.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.