Today’s question is about the use of scanners to listen to emergency service transmissions with reference to Western Australia.  My correspondent asks if members of the ‘public are allowed to own fire scanners and listen to the FRS? I know you can listen online, but can you own a handheld one?’

To answer that question, one needs to ask where would one find relevant laws? They may be in federal communications law or state emergency management communications law.

Commonwealth law

The Commonwealth has the Radiocommunications Act 1992 (Cth) and the Telecommunications Act 1997 (Cth).

The Radiocommunications Act (s 6(1)) says:

For the purposes of this Act, radiocommunication is:

(a)  radio emission; or

 (b)  reception of radio emission;

for the purpose of communicating information between persons and persons, persons and things or things and things.

A ‘a radio emission is any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide, whether or not any person intended the emission to occur’ (s 8(1)).

A telecommunications service, on the other hand, is defined in the Telecommunications (Interception and Access) Act 1979 (Cth) s 5 as:

… a service for carrying communications by means of guided or unguided electromagnetic energy or both, being a service the use of which enables communications to be carried over a telecommunications system operated by a carrier but not being a service for carrying communications solely by means of radiocommunication.

I won’t pretend to understand the technical definitions and what makes a mobile phone a telecommunications device rather than a radiocommunications device, but I think we can accept that indeed a mobile phone is different to the radios that are used by the emergency services, citizen band radios and other two-way radios.

What we can see is that there is an entire Act – the Telecommunications (Interception and Access) Act 1979 (Cth) – about intercepting telephone services, who can do that, in what circumstances and when a warrant is required. Section 7 of that Act says:

A person shall not:

 (a)  intercept;

 (b)  authorize, suffer or permit another person to intercept; or

 (c)  do any act or thing that will enable him or her or another person to intercept;

a communication passing over a telecommunications system.

There is no similar provision for radio communication and that makes sense.  Consider a CB radio, two people are having a conversation on their CBs but anyone else on the channel can hear and therefore ‘intercept’ the conversation but that is indeed part of the function of CB radio.  You can make a call and speak to anyone on channel, unlike a mobile phone where you need to know someone’s phone number and you call them and have a conversation that one expects cannot be overheard.  Equally radio transmission by commercial and community radio stations is intended to be intercepted by anyone who has a radio and who wishes to tune in.

In short, it is not an offence to intercept radio communication. To keep communications private operators, use private networks that only they are licensed to use and that includes the government radio networks.  Digital encryption of radio messages can also help keep the transmissions confidential.

It is an offence to use a radiocommunications device (Radiocommunications Act 1992 (Cth) s 46) unless authorised by

(a)  a spectrum licence; or

(b) an apparatus licence; or

(c)  a class licence.

A radiocommunications device is (s 7(1)):

(a)       a radiocommunications transmitter other than a radiocommunications transmitter of a kind specified in a written determination made by the ACMA for the purposes of this paragraph; or

(b)       a radiocommunications receiver of a kind specified in a written determination made by the ACMA for the purposes of this paragraph.

I infer that a scanner is a receiver not a transmitter so it will only be prohibited by s 7 if it is the subject of an Australian Communications and Media Authority (ACMA) determination.  The Radiocommunications (Specified Radiocommunications Receivers and Types of Transmitter Licences and Receiver Licences) Determination 2024 cl 6 says that, for the purposes of s 7(1)(b), a receiver is a radiocommunications device if:

… it is, or forms part of:

 (a) an area-wide receive station;

 (b) a defence receive station;

 (c) an earth receive station;

 (d) a fixed receive station;

 (e) a major coast receive station; or

 (f) a space receive station.

These terms are defined in the Radiocommunications (Interpretation) Determination 2015 (Cth). Without going through them in detail I assume that a handheld radio scanner does not fall within paragraphs (b) to (f) of that definition.

An ‘area wide’ service is defined (Radiocommunications (Interpretation) Determination 2015, Sch 1) as:

a radiocommunications service that is used for radiocommunications from any of the following:

(i) stations at fixed points;

(ii) mobile stations;

to any of the following:

(iii) stations at fixed points;

(iv) mobile stations;…

Presumably DFES has a service that transmits from various fixed towers to other fixed towers as well as mobile stations (ie those in appliances and hand helds).     A search of the Register of Radiocommunications Licences shows DFES has multiple licences but none of them are described as an ‘area-wide licence’.  It would require an expert in radiocommunications to clarify whether DFES are operating an ‘area-wide’ service and whether a scanner is or forms part of an ‘area-wide receive station’.

Assuming a scanner does not fall within paragraphs (a) to (f) then it is not a radiocommunications device.  If that is correct it is not an offence to operate a portable, handheld radio scanner.

There is an offence to operate communications equipment that does not comply with relevant standards (Radiocommunications Act 1992 (Cth) s 48 and Radiocommunications Equipment (General) Rules 2021 (Cth) r 11(1)).  But again, given the definition of radiocommunication device (Radiocommunications Act 1992 (Cth) s 7(1)(b)), this does not apply to a scanner if it receives but does not transmit a ‘radio emission’ (r 10(1)).

Unless a technical expert wants to explain why a scanner falls within the definition of an ‘area-wide receive station’ the best I can infer is that there is no offence against the Radiocommunications Act 1992 (Cth) to use a scanner to listen to any frequency one can tune the scanner to.  

State law

In Western Australia there is the Telecommunications (Interception and Access) Western Australia Act 1996 (WA). The purpose of that Act is ‘to enable the Corruption and Crime Commission and the Police Force to be declared agencies for the purposes of the Telecommunications (Interception and Access) Act 1979 of the Commonwealth…’  It has nothing to say about the use of scanners to listen to DFES communication.

I can find nothing in the Fire Brigades Act 1942 (WA), the Fire and Emergency Services Act 1998 (WA) nor the Bush Fires Act 1954 (WA) that is relevant to this question.

Conclusion

I am unable to find any legal prohibition on the use of a scanner, unless a scanner falls within the definition of a radiocommunications device as set out in the Act (s 7(1)(b)) and the Radiocommunications (Specified Radiocommunications Receivers and Types of Transmitter Licences and Receiver Licences) Determination 2024.  If it does, then it is an offence to possess or use the device without an appropriate licence but state practice including the fact that scanners are freely available would suggest that no-one thinks this is the case.

For related posts see https://australianemergencylaw.com/?s=radiocommunications

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.