Bills Digest No. 46 2003-04
Spam (Consequential Amendments) Bill 2003
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
(Consequential Amendments) Bill 2003
18 September 2003
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
Royal Assent or, where
specified, 120 days after the Spam Act 2003 receives Royal
Assent. (The 120 day deferred commencement period applies to
penalty provisions to enable businesses time to align business
practices with the legislative requirements.)
The purpose of the Bill is to enable
investigation, compliance and enforcement action to be undertaken
by the Australian Communications Authority (ACA) and hearings by
the Australian Competition and Consumer Commission to support the
operation of the separate Spam Bill 2003.
A detailed Background is provided in
the accompanying Bills Digest on the Spam Bill 2003.
(The amendments made by Part 1, below, of
Schedule 1 commence on Royal Assent.)
Section 3 of the Telecommunications Act
1997 (TA) specifies that one of the main objects of the TA is
to provide a regulatory framework that promotes the long term
interests of end users of carriage services or services provided by
means of carriage services. A 'carriage service' means a service
for carrying communications.
Item 1 amends subsection 3(2)
of the TA to set out a secondary object which is to promote
responsible practices in relation to the communication of
commercial electronic messages.
Items 2 and
3 amend section 5 of the TA to insert references
to the e-marketing industry in the simplified outline of the TA
Items 4 to 6
insert definitions in the interpretation section of the TA,
including a definition of the e marketing industry.
Section 106 of the TA is the simplified
outline for Part 6 Industry Codes and Industry Standards for the
telecommunications industry. Item 7 inserts a
reference to the e marketing industry in the outline at section
Item 8 inserts a new
section 108A and a new section 108B into
Part 6 of the TA to include references to an electronic messaging
service provider. These amendments are also drafted to maintain
consistency with technical definitions in the Spam Bill 2003.
Item 10 inserts a new section
109A in Part 6 of the TA to specify criteria that identify what an
e marketing activity is for the purposes of industry codes and
standards that are developed by bodies and associations that
represent sections of the telecommunications industry. Item
13 inserts a new section 110A in the TA
to clarify that there are sections of the e marketing industry that
may develop relevant codes and standards. Likewise, Item
14 inserts a new section 111A and a
new section 111B in the TA to define participants
in a section of the e marketing industry and what constitutes an
unsolicited commercial electronic message, respectively.
Division 3 of Part 6 of the TA deals with
matters such as the statement of regulatory policy applicable to
the general principles relating to industry codes and standards.
The administration of the policy rests with the ACA. The ACA is
established under the Australian Communications Authority Act
1997. The ACA is the successor body to the amalgamation of
AUSTEL and the Spectrum Management Authority. The ACA is empowered
to give directions to carriers and telecommunications service
providers. The ACA regulates the telecommunications industry.
Item 15 inserts a new subsection
112(1A) in the TA to expressly state that it is
Parliament's intention that the ACA's regulation extends to the
examination of industry codes prepared by sections of the e
marketing industry. Item 18 inserts new
subsections 112(3A) and 112(3B) in the TA
to provide criteria that the ACA must take into account when
determining when public interest considerations are being
addressed. The criteria include factors such as the number of end
users likely to benefit from the code and the administrative and
financial burdens on the industry.
Item 21 inserts a new
paragraph 113(3)(q) in the TA to give examples of
matters relevant to the e marketing industry that may be dealt with
by industry codes and standards. Basically, the codes are expected
to deal with agreed procedures and actions that will be taken by
the industry to combat spam.
Items 22 to
38 are minor reference amendments.
Item 39 inserts a new
Division 7 Miscellaneous in Part 6 of the TA to provide
limited immunity from civil proceedings for an Internet Service
Provider (ISP) or an electronic messaging service provider who
undertakes filtering of e mail messages, provided the action that
is taken is consistent with applicable industry codes and
standards. The limited immunity in the new Division 7
Miscellaneous does not apply.
(The amendments made by Part 2, below, of
Schedule 1 commence 120 days after Royal Assent is given to the
Spam Act 2003.)
As noted above, the ACA is to be the regulator
of the e marketing industry. The ACA is established under the
Australian Communications Authority Act 1997 (ACAA).
Items 42 and 43 insert specific
references in the ACAA to the Spam Act 2003.
Items 44 to
63 make minor consequential amendments to the TA
to insert references to the Spam Act 2003 for the purposes
of inclusion in existing provisions that deal with matters such as
inquiries, investigations and enforcement by the ACA. In passing,
it should be noted that, apart from hearings conducted by the ACA,
the Minister may give a direction to the Australian Competition and
Consumer Commission (ACCC) to hold an inquiry into specified
matters in the telecommunications industry (see Part 25 Public
Inquiries of the TA). Item 50 inserts a reference
to the Spam Act 2003 as a matter that may be the subject
of a hearing by the ACCC.
Item 71 adds a new
Division 5A Searches to monitor compliance with the Spam Act
2003 and a new Division 5B Access to computer
data that is relevant to the Spam Act 2003 to the
existing search provisions, used to monitor compliance in the
telecommunications industry, to the TA (in Part 28 Enforcement).
The new Divisions comprise new sections 547A to
547J which deal with procedures, protections and
compensation (if relevant) associated with monitoring, entry and
searches by ACA inspectors.
Items 72 to
87 are minor consequential amendments.
Concluding comments are made in the
accompanying Bills Digest on the Spam Bill 2003.
7 October 2003
Bills Digest Service
Information and Research Services
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