Bills Digest no. 160 2005–06
Do Not Call Register Bill 2006
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
Do Not Call
Register Bill 2006
Date introduced: 25 May 2006
House: House of
Portfolio: Communications, Information Technology and the
Commencement: Sections 1 9, 41, 46 and Part 3 commence on Royal
Assent. The remaining provisions commence 12 months after Royal
Assent unless commenced earlier by proclamation (clause 2).
The purpose of the Bill is to
regulate unsolicited and unwanted telemarketing calls.
On 30 October 2005, the Minister for Communications, Information
Technology and the Arts, Senator the Hon. Helen Coonan released a
discussion paper canvassing options for a national, legislated Do
Not Call Register.(1)
The accompanying media release stated:
Australian consumers are increasingly frustrated
by interruptions from telemarketers, particularly unsolicited calls
that come from call centres overseas.
But in formulating a way to cut down on
unsolicited calls there are a number of important issues to
consider including how bodies such as charities and legitimate
market researchers can continue to operate.
The discussion paper I am releasing today is a
vital step in formulating how a national, legislated Do Not Call
register would work in Australia. A Do Not Call register would give
consumers the right to opt-out of telemarketing approaches at any
For instance, people could put their number on a
register, and telemarketers, including telemarketers from overseas,
would face penalties if they phoned a number on the register.
On 4 April 2006, following release of the discussion paper and
the receiving of submissions, the Minister announced the Government
s intention to establish a national, legislated Do Not Call
Register which would protect consumers from nuisance telemarketing
phone calls. In the media release, the Minister stated that more
than 90 per cent of the 495 submissions received in response to the
discussion paper supported the creation of a
One of the arguments favouring a national legislated Do Not Call
Register is the disparate nature of telemarketing regulation
currently applying in Australia. The current rules governing
telemarketing practices are contained in various instruments,
including voluntary codes, state and territory legislation and
Commonwealth law. A fuller explanation can be found in the
Explanatory Memorandum and the Government s discussion paper.
At Commonwealth level, the
regulation of telemarketers is governed to a degree by the relevant
provisions in the Telecommunications Act 1997, the
Trade Practices Act 1974 and the Privacy Act
1988. There have been claims that these Acts need revision to
accommodate new operating situations and technological
innovations.(4) The Office of the Federal Privacy
Commissioner has suggested that it is possible that many of the
telemarketing phone calls that individuals currently receive either
comply with the Privacy Act or are made by companies that are not
required to comply.(5)
Legislation in states and
territories also regulates aspects of direct marketing, however the
legislation is not consistent across Australia, and is not
generally specifically targeted to address telemarketing
For organisations that are
members of the Australian Direct Marketing Association (ADMA),
compliance with their Code of Practice is compulsory. A key feature
of the code which relates to telemarketers states:
Telemarketing Standards of Practice
marketers who use the telephone must ensure they identify
themselves to the person they are calling and state the purpose of
the call. They must also ensure their name address and telephone
number is listed in an accessible directory. They must also:
- on request, provide the name of a person responsible for
handling customer inquiries,
- offer to call the person back if it appears that a customer has
been interrupted at an inconvenient time,
- provide the customer with a clear opportunity to accept or
decline the offer,
- ensure that all telephone calls to a customer are made at times
that comply with specific legislation and in all other instances
are made between the hours of 8am and 9pm and are not made on the
following public holidays: Christmas Day; Good Friday; and Easter
- release the customer's telephone line within five seconds of
their hanging up or otherwise indicating they require the line to
In addition, they must not represent that they are
undertaking market research where the purpose of the call is to
sell goods or services, or contact a customer more than once in any
30 day period for the same or similar campaign without that
customer's prior consent.
ADMA also maintains its own Do Not Call Register. Consumers
wishing to reduce the number of telemarketing calls received may
register on ADMA s Do Not Contact Opt Out Service(6).
Under the Code, use of the Do Not Contact Opt Out Service is
mandatory for all ADMA members. This requires members to purge from
marketing campaigns the names and contact details of consumers who
have registered for the service.
The Bill is drafted in similar terms to the Spam Act
2003. Its key features are:
- a prohibition on making unsolicited telemarketing calls to an
Australian number which is registered on the Do Not Call Register,
subject to certain exemptions. The penalty provision is aimed at
calls made from an Australian number, or from overseas to an
- an extensive list of exemptions from the general prohibition
for telemarketing calls from charities, registered political
parties, independent members of parliament and candidates,
religious organisations, educational institutions, government
bodies, businesses with an existing business relationship with
customers, and for calls conducting opinion polls or carrying out
questionnaire based research
- a requirement that agreements or contracts for the making of
telemarketing calls must require compliance with the Do Not Call
- a requirement for a Do Not Call Register to be established,
enabling individuals to register their private or domestic numbers
on the Register
- civil penalties and injunctions for breaches of the
- a tiered enforcement regime to be initiated by the Australian
Communications and Media Authority (ACMA), depending on the
seriousness of the breach of a penalty provision.
The main regulatory framework for
the administration of the legislation by the ACMA is found in the
accompanying Bill, the Do Not Call Register (Consequential
Amendments) Bill 2006. The main elements of that Bill are:
- a requirement that the ACMA develop an industry standard which
would set out the various minimum contact standards that all
telemarketers would have to comply with (including those exempt
from the general prohibition on making certain telemarketing
- a framework to enable the development of telemarketing industry
- an investigative, compliance and enforcement role for the ACMA
to support the operation of the proposed Do Not Call Register
The Explanatory Memorandum states that the Bill
takes the best features of overseas Do Not Call Register schemes
but is based primarily on the United States model. Further
discussion of comparative overseas legislation is contained in the
The Senate has referred the
provisions of the Bills to the Senate Environment, Communications,
Information Technology and the Arts Committee for inquiry and
report by 19 June 2006. This Digest incorporates material from
submissions to the Senate Committee inquiry.
ADMA is the peak association representing the Australian direct
marketing industry and currently administers the self-regulatory Do
Not Mail and Do Not Call Registers.
In its submission to the Senate Committee inquiry, ADMA states
that it is broadly supportive of an industry run, Government backed
Do Not Call register recognising the benefit of extending the
existing ADMA Scheme to the broader industry . However ADMA states
that the Department of Communications, Information Technology and
the Arts (DCITA) has drafted the Bill with great haste and lack of
consultation and that the Bill fails significantly in the following
Regulatory burden: Contrary to
the Government and the Council of Australian Government's
intentions, the Bill will impose such severe restrictions on
telephone marketing that it will no longer be a viable mechanism
for organisations to establish new relationships in addition to
having a negative and undesirable impact on contact with existing
customers and clients.
Inconsistency: Most of the Bill's
problems stem from it being based on the Spam Act which was enacted
to deal with a different, online channel of marketing
communication. This has resulted in a number of major
inconsistencies with other legislation such as the Privacy Act 1988
particularly the definition of 'consent'. The issue of
inconsistency between communications and privacy legislation was
specifically addressed in the recent review of the Privacy Act but
has been ignored by DCITA.
Expectations: The Bill has such
broad ranging exemptions and significant verification difficulties
that that consumers will continue to receive an unacceptably high
volume of unsolicited calls.(7)
Media reports have suggested that ADMA has had some influence on
the final form of the Bill, particularly in relation to the
decision to exclude businesses from participating in the Do Not
Call Register scheme.(8) ADMA s CEO Rob Edwards was
reported as saying:
We will be taking this up with the Government to
ensure that business-to-business marketing in Australia is not
jeopardised. The effect could be catastrophic.(9)
The Council s deputy chairman, Tony Steven was reported in the
Australian Financial Review as saying the Council was disappointed
with the Government s last minute decision to exclude businesses
from participation in the Do Not Call Register scheme:
Constant calls from telemarketers are a time
imposition for small businesses. We don t want to restrict
business-to business marketing, but we should be protected from
mass-market telemarketing campaigns run by call centres in
The Direct Selling Association of Australia in its submission to
the Senate Committee inquiry supports the principle of a Do Not
Call Register but expresses the following concerns:
The Bill will have far reaching and seemingly
unintended consequences for small business activity based on family
and social relationships in direct selling.
The telemarketing activity of the sales people
engaged in the direct selling industry is not within the mischief
outlined throughout the development of the Bill
The concepts of nominee and consent used the Bill
to exclude certain telemarketing, the lack of assistance in
interpreting taking reasonable precautions and exercising due
diligence in avoiding contraventions, and the accompanying burden
of proof, do not give direct selling sales people the certainty
needed to engage in telemarketing activity.
Achieving desired levels of compliance with the
Bill will require a significant and ongoing investment in
education, and subject the industry to the cost of register
In its submission to the Senate Committee inquiry, the Office of
the Federal Privacy Commissioner stated that it strongly supports
the introduction of the Register, and welcomes the Australian
Government taking this step in implementing Recommendation 25 of
Getting in on the Act: The Review of the Private Sector
Provisions of the Privacy Act 1988 .
The Office s recommendations regarding the provisions of the
- telephone numbers remain on the register until such time as the
individual chooses to de-register the telephone number, or the
telephone number moves to a different subscriber
- public awareness raising, including a Government or business
driven educational campaign, be undertaken
- individuals who register their telephone numbers on the Do Not
Call Register be provided with clear notice about the details of
the handling of their information
- the three-year review of the Bill should look particularly at
whether the exemptions from the Bill have had an adverse impact on
the effectiveness of the Register, and
- consideration be given to preventing bundled consents applying
to telemarketing calls to telephone numbers on the Register.
The Australian Privacy Foundation has welcomed the Bill and
states that the basic design of the scheme, based on the existing
Spam Act regime appears sound. The Foundation in its submission to
the Senate Committee inquiry did however state that the exemptions
are far too broad:
Many if not most of the unwelcome calls which are
received will fall within one or other of the exemptions. There is
no justification for the exemptions for political parties,
charities and educational institutions there are many other ways
for these organisations to achieve their legitimate objectives
without making unsolicited phone calls.
The Australian Labor Party, in its Telecommunications Policy
released before the last federal election on 22 September 2004
promised to introduce a National Do Not Call List:
Stricter rules for telemarketers
Many Australians are sick of the unwarranted
intrusion of telemarketers into their homes at inappropriate times.
Current codes allow telemarketers to call from 7am to 9pm on any
day of the year except Christmas Day, Good Friday and Easter
Sunday. These rules only apply to companies that have signed up to
the self-regulatory Australian Direct Marketing Association
Labor will introduce a national legislated Do Not
Call List. The list will be managed by the ACCC. Telemarketing
companies calling numbers on the Do Not Call list will be subject
to fines of up to $10,000.
Charities, political organisations and telephone
survey companies making non-sales calls will be exempt from the
list. A similar list in the USA now has over 50 million registered
Labor will reform existing rules to ensure that
telemarketers do not call people on public holidays or on Sundays.
Labor will also ensure these rules apply to all telemarketers and
that adequate penalties exist for those found breaking the
The Opposition Leader, the Hon. Kim Beazley, MP welcomed the
Government s announcement proposing the introduction of a Do Not
Call Register but suggested the Government s proposal is a
backflip. The ALP has also criticised the Government for not
allowing a debate on the private member s telemarketing bill
introduced by ALP MP Anna Bourke six months ago and for delaying
the implementation of the scheme until 2007.
When the Member for Chisholm, Anna Burke, gave
notice that she would be introducing a Private Member s Bill into
the House of Representatives last year creating such a National Do
Not Call [Register], the Government refused to even allow a vote on
the Bill. The Government then cynically released a discussion paper
on the issue on the day before the Bill was scheduled for
Now after almost six months of delay, the Howard
Government has fully adopted Labor s policy.
Senator Coonan should explain why she has made
Australian families endure six months of annoying telemarketing
calls just to allow her to take the political credit for this
policy. She should also explain why the nuisance calls will go on
Senator Natasha Stott Despoja, Australian Democrats Spokesperson
for Attorney Generals, has stated that the Democrats support
politicians being subject to the Do Not Call Register and that they
will move to amend the Bill to remove the exemption for
politicians. The Senator also indicated that at the same time the
Democrats would move an amendment to the Privacy Act to remove the
exemption under that Act for political acts and practices:
It is utterly hypocritical for politicians to
expect business, industry and community groups to comply with
privacy laws which they, themselves, are unwilling to comply
The Family First Party has stated that it opposes special
treatment for politicians and pollsters. While supporting the
Government s plan to set up a national Do Not Call Register they
will move an amendment to overturn the
Budget funding of $33.1 million has been provided over four
years, for the arrangements in both this Bill and the
Consequentials Bill. The Explanatory Memorandum states that it is
expected that approximately $15.9 million will be recovered from
the telemarketing industry through the payment of fees to access
the Register.(15) Details of the access fees are as yet
unknown but are to be released by determination.
Part 1 commences on Royal Assent.
Clause 3 provides a simplified
outline for the legislation.
Clause 4 provides the
definitions of words and expressions used in the legislation.
Clause 5 is a key provision in
the Bill. It provides an extended definition of what is a
telemarketing call. A telemarketing call is a voice call made to a
telephone number that has a commercial type purpose .
A voice call is defined to mean a voice call
within the ordinary meaning of that expression or a call that uses
recorded or synthetic messages, whether or not the recipient
responds by way of pressing buttons on a telephone handset or
similar thing (clause 4).
The particular types of commercial purposes are
set out in paragraphs 5(1)(e) to
(n). They are calls for which the purpose or
one of the purposes is:
- to offer to supply:
- goods or services
- a business or investment opportunity
- to advertise, or to promote:
- goods or services, or a supplier of goods or services
- land, or a supplier of land
- a business or investment opportunity, or a provider of a
business or investment opportunity
- to solicit donations, or
- some other purpose as specified in the regulations.
The Explanatory Memorandum at pages 52 to 55
provides practical examples of what calls would fit the definition
of telemarketing calls.
Regulations may provide that a specified kind of
voice call is not a telemarketing call for the purposes of this Act
(subclause 5(7)). The Explanatory Memorandum
points out that calls without a commercial element (such as calls
conducting opinion polls or carrying out questionnaire-based
research) will not be covered by this Act even if they may
ordinarily be considered to be telemarketing.(16)
The purpose of the call is to be determined by
having regard to the content of the call, the presentational
aspects of the call, the content that can be obtained using the
telephone numbers, URLs or contact information mentioned in the
call, and the content that can be obtained from calling the
telephone number from which the call was made (for example by
calling line identification) (subclause 5(1)).
The effect of clause 9 is that the prohibitions
on the making of unsolicited telemarketing calls (as set out in
Part 2 below) will apply to telemarketing calls made from overseas
numbers and calls made from external Territories, with the
exception of Norfolk Island.
Part 2 Rules about making telemarketing calls
Part 2 commences 12 months after Royal Assent unless commenced
earlier by proclamation.
Clause 11 is the primary provision. It provides
that a person must not make, or cause to be made a telemarketing
call to an Australian number which is registered on the Do Not Call
Register and is not a designated telemarketing call. Designated
telemarketing calls are dealt with in Schedule 1 and provide
exemptions for telemarketing calls made by certain persons and
organisations (see below under Exemptions).
Subclause 11(7) covers aiding, abetting,
conspiracy and inducing the sending of telemarketing calls by
threats or promises.
Subclause 11(8) provides that the offences
under clause 11 are civil penalty provisions
The defences (with the evidential burden on the
caller(17)) to an offence under the legislation are
- the relevant telephone account holder (or nominee) consented to
the making of the call (consent is defined in Schedule 2 and
nominee is defined in clause 39) (subclause
- the caller had washed their lists of telephone numbers in the
last 30 days and the number was not on the Do Not Call
Register(18) (subclause 11(3))
- the call was made by mistake (subclause
- the caller took reasonable precautions and exercised due
diligence to avoid the contravention (subclause
Clause 12 prohibits a person or
organisation entering into a telemarketing contract, arrangement or
understanding unless the contract, arrangement or understanding
contains an express obligation requiring the other party to comply
with the Do Not Call Register Act. This is a civil penalty
The Explanatory Memorandum states that this
provision is likely to assist where a business operating in
Australia contracts with an overseas telemarketer to provide
telemarketing services to Australian numbers. While the overseas
telemarketer will be covered by the prohibition in clause 11, this
provision puts a further obligation on persons outsourcing their
telemarketing calls to assist in ensuring that such persons will
comply with the Do Not Call Register Act by making it a contractual
Paragraph 11(1)(b) provides an exemption from
the prohibition on making unsolicited telemarketing calls for
designated telemarketing calls . Designated telemarketing calls are
dealt with in Schedule 1. They are telemarketing
calls made by or authorised by:
- government bodies (as defined in clause 4, Part 1)
- religious organisations
- charities or charitable institutions
- registered political parties, independent members of
parliaments of the Commonwealth, state, territory and local
government, or nominated candidates for these parliaments. Calls
would be exempt when the purpose is to conduct fundraising for
electoral or political purposes.
- educational institutions as defined (but only calls to students
or former students).
In all these exempt categories, if the call relates to goods or
services, then the exemption only applies if the relevant body is
the supplier or prospective supplier of the goods or services
concerned (paragraphs 2(b), 3(1)(c), 3(2)(c) and
4(2)(e)). The Explanatory Memorandum explains that
this qualifier has been included to ensure the exemption is not
abused. In relation to charities it states:
[The exemption] would not cover the situation
where a charity is simply onselling goods or services for a
non-exempt organisation for a commission. For example if a charity
is approached by a company to sell their goods or services in
return for the charity receiving a commission then this would not
be covered by the exemption as the charity would not be the
supplier of the goods or services. (20)
Regulations may also be made specifying that certain calls are
designated telemarketing calls for the purposes of the legislation
(Schedule 1, clause 5).
An exemption will also apply to
persons or companies with an existing business relationship with an
individual, for example with existing accounts or contracts. This
exemption is not a designated telemarketing call but rather is
brought into the legislation via the definition of inferred consent
found in Schedule 2.
As stated above, one of the defences to an
offence of making an unsolicited telemarketing call is that the
relevant telephone account holder (or nominee) consented to the
making of the call. Consent is defined in Schedule 2,
clause 2 to mean:
- express consent, or
- consent that can be reasonably inferred from the conduct and
the business relationships of the individual or organisation
The Explanatory Memorandum states that the extent
of inferred consent will be a matter of fact to be determined on
the particular factual circumstances. It states that a one-off
casual type purchase, normally made without exchange of details
would not give rise to an expectation of receiving telemarketing
calls. However a person purchasing goods or services which involved
ongoing warranty, or a bank and a bank account holder would be
considered an existing business relationship and thus consent to
telemarketing calls could be inferred.(21)
It is of note that express consent is taken to
last for 3 months (Schedule 2, clause 3), while
there is no specified time limit for inferred consent.
Several submissions to the Senate Committee
inquiry are critical of the drafting of this exemption. The Direct
Marketing Association in its submission stated:
[ ] the Bill should include a separate, clear
exemption for existing business relationships , providing both
business and consumer with clear parameters as to the type of
relationships that fall in this category.
The Australian Privacy Foundation argues that the
exemption based on inferred consent through pre-existing business
relationships is far too wide and will allow for many unwelcome
calls purely on the basis that the consumer has made enquiries or
had minor dealings a long time ago.(22)
The exemption covering opinion poll
and market based research calls is not found in the provisions
dealing with designated telemarketing calls . As discussed
above(23) the exemption comes via the definition of a
telemarketing call (clause 5, Part 1) which
essentially provides that for the purposes of this Act, a
telemarketing call must have a commercial type purpose.
Part 3 commences on Royal Assent the rationale being that the Do
Not Call Register must be established before the regulation of
telemarketing calls commences.
Clause 13 provides for the ACMA to establish
the Do Not Call Register or alternatively, for the ACMA to contract
it out to a contract service provider to operate on its behalf.
Telephone numbers eligible to be entered on the Do Not Call
Register are Australian numbers used either exclusively or
primarily for private or domestic purposes and not used exclusively
for receiving or transmitting faxes (clause 14).
There is no provision for businesses to register, although it is of
note that the Government s telemarketing discussion paper and the
Minister s media releases up to 4 April 2006 indicated that small
businesses would be able to participate in the
scheme.(24) Media reports suggest that the direct
marketing lobby and particularly the ADMA exerted some last minute
pressure on the Government to exclude businesses from registering
with the Do Not Call Register.(25)
Clauses 15 and 16 set out the
requirements for registering telephone numbers in the Do Not Call
Register. If registration is done in accordance with the correct
forms and if the ACMA (or the contract service provider) is
satisfied the number is eligible for entry into the Register, then
the ACMA (or service provider) must enter the number in the
Register. There is no fee required for registration.
Registration of a telephone number on the Register lasts for 3
years unless removed earlier by a determination of the ACMA. A
number may be re-registered if the three year period has expired or
if the number has been previously removed (subclause
17). Both the Office of the Privacy Commissioner and the
Australian Privacy Foundation in their submissions to the Senate
Committee inquiry recommend that telephone numbers remain on the
register until such time as the individual chooses to de-register
the telephone number. The Office of the Privacy Commissioner argues
that automatic de-registration of telephone numbers after three
years is an unnecessary barrier for individuals seeking to use a
privacy-enhancing tool such as the Register and may ultimately
reduce the Register s effectiveness.(26)
Clause 19 sets out rules regarding access to
the Register by telemarketers. A person (described as the access
seeker) must firstly fulfil the administrative requirements
regarding the application form and payment of fees. The ACMA or
service provider must then check the access seeker s telephone
number or list of numbers against the Register and either inform
that person which numbers are registered on the Do Not Call
Register, or alternatively which numbers are not registered.
The ACMA may make determinations regarding:
- administration of the Register (clause
- method of accessing the Register (clauses 19
and 20) and
- fees to be paid for accessing the Register (clause
Determinations made under clauses 18, 20 and 21 would be
legislative instruments. In other words they must be registered and
tabled in Parliament and would be subject to disallowance.
Part 4 commences 12 months after Royal Assent unless commenced
earlier by proclamation.
Clauses 24 to 31 provide the
details of the application of the series of civil penalties that
are payable for contraventions of the legislation. The penalties
escalate for repeat offences. Proceedings for the recovery of
penalties are instituted in the Federal Court of Australia or the
Federal Magistrates Court. Ancillary orders for compensation to a
victim and for payment to the Commonwealth of the amount of any
financial benefit obtained by the person are covered in this Part
under clauses 30 and 31.
The unit rate for a penalty is currently set at $110 per penalty
unit. The summary of current maximum penalty amounts is provided in
the Explanatory Memorandum at pages 64 to 65. They range for an
individual from $1,100 to $220,000 (repeat offender) and for a
corporation from $5,500 to $1.1 million (repeat offender).
Clause 32 provides a link to Schedule
3 to the Bill which sets up a system of infringement
notices as an alternative to proceedings in the Federal Court or
the Federal Magistrates Court.
The ACMA is empowered by clause 24 to initiate
proceedings in the Federal Court or the Federal Magistrates Court
and to issue infringement notices (Schedule
Part 5 commences 12 months after Royal Assent unless commenced
earlier by proclamation.
Clauses 34 to 38 authorise the
Federal Court or the Federal Magistrates Court to issue a range of
injunctions for contraventions of the legislation. These
injunctions include orders to restrain conduct and to compel a
person 'to do something'. The ACMA is empowered to apply to the
courts for injunctions.
Clauses 39, 40, and
42 to 45 commence 12 months after
Royal Assent unless commenced earlier by proclamation.
Clauses 41 and 46 commence on
Clause 39 provides that telephone
account-holders may appoint, either verbally or in writing, any
number of nominees in relation to their telephone number. This
provision is drawn into the main provisions of the Bill in several
ways. For example the rules prohibiting the making of telemarketing
calls in clause 11 do not apply where the relevant telephone
account-holder or their nominee has consented to the
making of the call. The Telecommunications Industry Ombudsman has
commented that the Bill does not appear to contain any guidance as
to how the authenticity of that nominee is established. In this
respect, a telemarketing company may seek to argue that any person
who answers the telephone at an address and engages in a
conversation could be a nominee for the purposes of the exemption.
The Bill may benefit from some guidance as to how the authenticity
of the nominee can be established, to ensure that the relevant
telephone account holder s wishes to be included on the Register
can only be overridden by either themselves of their legitimate
Clause 40 empowers the ACMA to issue formal
warnings if a person contravenes the legislation and if the matter
is assessed as a minor infringement.
Clause 41 provides additional functions for the
ACMA in telemarketing related matters, including:
- community education programs
- research, and
- conducting liaison with other regulatory bodies in Australia
Clause 42 allows the concurrent operation of
any state or territory laws that are capable of applying together
with the provisions of this Bill.
Clause 43 prevents the Bill applying to the
extent that it would infringe the freedom of political
communication as implied from the Constitution.(28)
Clause 44 authorises the making of regulations
that would give effect to an international convention that deals
with telemarketing calls. This Clause foreshadows that Australia is
looking at the possibility of concluding agreements with other
countries to deal with the global impact of telemarketing.
Regulations are subject to a tabling and disallowance procedure in
Clause 45 specifies that the operation of the
legislation will be reviewed 3 years after the commencement of the
legislation. A report of the review must be tabled in Parliament by
Clause 46 is a general regulation making power.
It provides that the Governor-General may make regulations
prescribing matters required or permitted to be prescribed by the
Bill or necessary or convenient to be prescribed for carrying out
or giving effect to the Bill.
The Bill is likely to receive bipartisan support in the
Parliament. Viewed overall, it is not controversial legislation,
although further attention may be merited in relation to the
exemptions. Members of the minor parties have indicated their
intention to move amendments in relation to political party and
member of parliament exemptions. The Government expects that given
the apparent broad community support for a Do Not Call Register,
consumers will move quickly to join the Register. There may however
be some confusion amongst consumers, if they find, that due to the
extent of the exemptions to compliance, the number of unsolicited
telemarketing calls they receive does not diminish
- Department of Communications, Information Technology and the
Arts, Introduction of a Do Not Call Register: Possible
Australian Model: Discussion Paper, 2005.
- Senator the Hon. Helen Coonan, A solution for nuisance calls:
Options for an Australian Do Not Call register , Media
release, 30 October 2005.
- Senator the Hon. Helen Coonan, An end to nuisance calls ,
Media release, 4 April 2006.
- Office of the Federal Privacy Commissioner, Getting in on
the Act: The Review of the Private Sector Provisions of the Privacy
Act 1988, March 1995.
- Office of the Federal Privacy Commissioner, Submission:
Introduction of a Do Not Call Register: Possible Australian Model:
Discussion Paper, 2005.
- It includes Do Not Mail and Do Not Call services.
- Australian Direct Marketing Association, Submission to the
Senate Environment, Communications, Information Technology and the
Arts Committee Inquiry into the Do Not Call Register Bills, 9 June
- For further information see p. 13 of the Digest.
- Telemarketing sector finds do not call plan somewhat disturbing
, Age, 15 April 2006, p. 21. See also p. 13 of the
- Business gets unexpected call , Australian Financial
Review, 26 May 2006.
- Direct Selling Association of Australia, Submission to the
Senate Environment, Communications, Information Technology and the
Arts Committee Inquiry into the Do Not Call Register Bills, June
- The Hon Kim Beazley MP, Victory for Labor and families over
nuisance phone calls , Media release, 4 April 2006.
- Politicians do not call , Media release, 30 May
- Senator Steve Fielding, Family First opposes special treatment
for politicians and pollsters , Media release, 29 May
- Explanatory Memorandum, p. 3.
- ibid., p. 54. It is of note by way of contrast, that the
definition of a telemarketing call in the accompanying Do Not Call
Register (Consequential Amendments) Bill 2006, incorporates the
meaning given to it in this Bill and is broadened to include calls
for which one of the purposes is to conduct opinion polling, or to
carry out standard questionnaire-based research.
- An evidential burden in relation to a matter is defined in
clause 4 of the Bill. It requires the person to point to evidence
that suggests a reasonable possibility that the matter exists or
does not exist.
- Washed is a term used in the Explanatory Memorandum and is the
process whereby telemarketers submit their contact list of numbers
to the operator of the Register who then compares that list with
the Register and provide the telemarketer with a clean list on
which the registered numbers have been deleted.
- Explanatory Memorandum, p. 63.
- ibid., p. 86.
- ibid., p. 96.
- Submission to the Senate Environment, Communications,
Information Technology and the Arts Committee Inquiry into the Do
Not Call Register Bills, 9 June 2006.
- pages 9 10 of this Digest.
- In a media release of 4 April 2006, Senator the Hon. Helen
Coonan stated: A Do Not Call register, open to individuals and
small businesses, will enable people to opt out from receiving
unsolicited telemarketing calls. Once a telephone number is
registered, it will be prohibited for telemarketers to contact that
- For example Business gets unexpected call , Australian
Financial Review, 26 May 2006, p. 13.
- Submission to the Senate Environment, Communications,
Information Technology and the Arts Committee Inquiry into the Do
Not Call Register Bills, June 2006, pp. 5 and 7.
- Telecommunications Industry Ombudsman, Submission to the Senate
Environment, Communications, Information Technology and the Arts
Committee Inquiry into the Do Not Call Register Bills, 13 June
- Three High Court cases in the 1990s Australian Capital
Television (1992), Nationwide News (1992) and
Lange (1997) established an implied constitutional right
of political communication. The cases established that:
- limits on the Commonwealth's law making powers may be implied
in and from the text of the Constitution;
- the key principle of the Constitution is representative
democracy - expressed and constitutionally entrenched in sections 7
- a necessary condition of representative democracy is the
freedom to discuss and communicate information regarding political
and economic matters; and
- this freedom extends beyond election periods to all political
cannot restrict freedom of political communication unless:
it is enacted to fulfil a legitimate purpose (of
Australia's constitutional system); and
(ii) the restriction is appropriate and
adapted to fulfilment of that purpose.
Mary Anne Neilsen
19 June 2006
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
© Commonwealth of Australia 2006
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
Published by the Parliamentary Library, 2006.
Back to top