Bills Digest no. 93 2009–10
Do Not Call Register Legislation Amendment Bill
2009
WARNING:
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
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Do
Not Call Register Legislation Amendment Bill 2009
Date introduced: 26 November 2009
House: House
of Representatives
Portfolio: Broadband, Communications and the Digital
Economy
Commencement: The substantive provisions commence 6 months after
Royal Assent unless commenced earlier by proclamation (clause
2).
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill amends the Do Not
Call Register Act 2007 (the DNCR Act) with the purpose of
expanding the Do Not Call Register to enable all Australian
telephone and fax numbers to be registered, including those used by
businesses and emergency services.
The Do Not Call Register (‘the Register’) was
established in May 2007 by the Howard Government in response to
community concern about the volume and intrusiveness of unsolicited
telemarketing calls.[1]
The Register enables Australians to opt out of receiving
unsolicited commercial marketing calls by listing their fixed line
and mobile telephone numbers that are used primarily for private
and domestic purposes. As at November 2009 there were over 3.99
million registered telephone numbers.[2] There is no charge for listing a
number, with each listing remaining on the Register for a period of
three years at which time an individual may then re-list his or her
number.[3]
Under the DNCR Act, the Australian Communications and Media
Authority (ACMA) is responsible for establishing and overseeing the
operation of the Register including compliance and enforcement
matters. On 1 February 2007 the ACMA contracted with Service Stream
Solutions Pty Ltd to build and operate the Register until February
2011.[4]
Under the DNCR Act, a person both in Australia and overseas,
must not make a telemarketing call to a number on the Register. To
avoid calling listed telephone numbers, telemarketers can establish
an account on the ACMA website and then for a fee, have their
calling lists checked or ‘washed’[5] against the numbers listed on the
Register.[6] As at
November 2009, 2479.3 million numbers had been submitted for
checking or ‘washing’.[7]
The listing of a telephone number on the Register will not
prevent all unsolicited calls to that number, as the DNCR Act
provides for several types of organisations that can make
‘designated telemarketing calls’ to consumers. Exempt
organisations include government bodies, religious organisations,
charities, registered political parties, political candidates,
independent Members of Parliament and educational
institutions.[8] In
addition businesses calling with the consumer’s consent to
receive calls are also exempt. That consent can be expressly stated
(for example by ticking a box agreeing to receive calls) or it may
be inferred by a business if it has an existing relationship with a
person.[9]
At present, telephone numbers not used primarily for private or
domestic purposes, and all numbers used exclusively to send or
receive faxes, may not be listed on the Register. This effectively
excludes businesses and other entities from being able to take
advantage of the Register.[10]
In the 2009–10 Budget, the Rudd Government announced plans
to widen the scope of the Register to allow the registration of all
telephone and fax numbers, including the numbers used by businesses
and emergency service operators.[11] This announcement followed a release in August
2008 of a discussion paper by the Department of Broadband,
Communications and the Digital Economy (the Department) on the
potential expansion of the Register.[12] The Minister’s second reading
speech states that a large proportion of respondents (86 per cent)
to this paper supported allowing the registration of all Australian
telephone and fax numbers including business and emergency
numbers.[13]
The DNCR Act requires a review of the legislation to be
conducted by May 2010.[14] In October 2009 the Department released a discussion
paper for public comment to inform that review.[15] This statutory review is quite
separate and unrelated to this Bill and is to cover a much broader
range of subjects including the overall structure of the DNCR Act,
the status of exempt organisations, the consent provisions in the
Act, the operation of the Register, and compliance issues.
Apart from this statutory review, the Australian National Audit
Office (ANAO) has recently undertaken an audit to assess the
ACMA’s effectiveness in operating, managing and monitoring
the Register, including compliance with legislative
requirements.[16]
The principal elements in the Bill are to make provision
for:
- the eligibility of all businesses, government and emergency
service operator telephone and all fax numbers to be included in
the Register
- a prohibition on sending unsolicited marketing faxes to numbers
recorded on the Register including faxes originating from overseas
(subject to certain exemptions)
- a new mechanism of registered consent which will allow new
registrants the option of expressly consenting to receive telephone
calls or marketing faxes relating to particular industry
classifications, or alternatively, choosing the default option of
opting out from receiving all telemarketing calls and marketing
faxes, and
- the conferral of power on the ACMA to make determinations for a
number of related purposes.[17]
The Main Provisions section of this Bills Digest
provides more detail.
The Bill has been referred to the Senate Standing Committee on
Environment, Communications and the Arts for inquiry and report by
24 February 2010 (‘the Senate inquiry’). Details of the
inquiry are
at:
http://www.aph.gov.au/Senate/committee/eca_ctte/do_not_call_register/index.htm
The question of whether businesses should be able to opt out of
telemarketing through registration on the Register was on the
agenda when the original legislation, the Do Not Call Register Bill
2006 (the 2006 Bill), was first introduced into Parliament in May
2006. Media reports at that time suggested that the Australian
Direct Marketing Association (ADMA) had some influence on the final
form of the 2006 Bill, particularly in relation to the decision to
exclude businesses from participating in the Do Not Call Register
scheme.[18]
It was also reported that the Council of
Small Business Organisations of Australia was disappointed with
the Howard Government’s last minute decision to exclude
businesses from participation in the Do Not Call Register
scheme.[19]
Submissions to the Senate inquiry into the current Bill cover a
range of views. Privacy advocates and consumer groups support the
amendments in the Bill and in some cases use their submissions as
an opportunity to call for further amendments. For example,
Consumer Credit Legal Centre NSW supports the inclusion of
businesses in the Register because it argues ‘there is a
clear cost to business in efficiency of receiving unwanted business
calls and faxes’.[20] Its submission recommends further amendments: to widen
the scheme to remove some of the current exemptions; to make
registration permanent, without the need for a three-yearly
re-registration; and to make it an opt-in scheme (as opposed to the
existing opt-out scheme).[21]
However the majority of the submissions to the Senate inquiry so
far,[22] are from
businesses strongly opposed to the provisions that would allow
businesses to list their numbers on the Register thereby opting out
of receiving unsolicited telemarketing calls. The most substantial
submission is from ADMA which has commissioned Access Economics to
investigate and report on the economic consequences of extending
the Register to include businesses and government numbers. That
report is included as part of the ADMA’s submission.[23]
In relation to costs, the ADMA submission points to the Access
Economics report where it concludes:
Access Economics has been able to clearly identify a number of
adverse consequences that would result from this legislation. While
only some of the costs to business and the economy can be
quantified with confidence, they clearly exceed any benefits. For
example, total compliance costs are estimated to be $71–$108
million in the first year of operation and then $47 to $87 million
in each subsequent year. Costs such as the reductions in revenues,
employment, competition, innovation and market efficiency are all
likely to be significantly higher than those that have been
identified.[24]
ADMA states that the extension of the Register to business and
government will dampen, not increase productivity, and concludes
that the body of evidence now available calls into question whether
the extension meets the threshold question of providing a net
benefit to the community. The submission continues:
ADMA queries whether under the Best Practice Regulation
framework [used by the Government], this initiative should have
proceeded to Bill stage without a proper Regulatory Impact Analysis
having been completed.[25]
The Access Economics report points to several problems with the
mechanics of the Bill, including the cumbersome registered consent
provisions and the broad definition of ‘telemarketing’
relied on in the DNCR Act. It argues that the telemarketing
definition would mean that a very broad range of business marketing
activities would be affected, the effect being that many small
businesses would not recognise their marketing activities as
telemarketing even though they would be considered so under the
Act.[26] In
relation to registered consent the report states that the
provisions are counter-intuitive because businesses may not know
what sort of products or services they may be offered that would be
beneficial to their business operations.[27]
The Council of Small Business Organisations of Australia in its
joint submission with TrueLocal.com.au also opposes the Bill,
arguing its effect would be to:
- reduce competition and favour large businesses. The submission
claims small businesses will be unable to contact 30 to 50 per cent
of the prospective market by telephone
- disadvantage new entrants to the market who do not have
existing business relationships
- increase compliance costs. For example, small businesses would
have to subscribe to the ‘Do Not Call Register’;
establish procedures to record and manage express consents
received; check each number that has no express consent against the
‘Do Not Call Register’, and set up opt-out lists for
those businesses that have indicated they do not want to be
contacted again, and
- reduce innovation for small business due to lack of ability to
promote new products to businesses listed on the Register.[28]
Budget funding of $4.7 million has been provided over four years
for the arrangements contained in the Bill. The Explanatory
Memorandum states that it is anticipated that approximately $3.5
million will be recovered from the telemarketing and fax marketing
industries through the payment of fees to access the
Register.[29]
Items 3 to 19 propose
amendments to section 4, the definitions provision in the DNCR Act.
Relevant definitions are discussed below.
Item 22 inserts proposed sections
5A and 5B which define
‘faxes’ and ‘marketing faxes’ respectively
for the purposes of the DNCR Act. These are key definitions that
underlie the new provisions in the Bill.
The term ‘fax’ is defined broadly to include a fax
whether or not it is a facsimile of a physical document or was
created by computer software, and whether or not the sending of the
fax involves the use of a fax machine, a fax server, a fax gateway,
a mail-to-fax system or a system or equipment specified in the
regulations.
In general terms a ‘marketing
fax’ is a fax that has a ‘commercial type
purpose’.[30]
The particular types of commercial purposes are set out in
proposed paragraphs 5B(1)(d) to
(n). They are faxes for which the purpose, or
one of the purposes is:
-
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 specified in the regulations.
The purpose of the fax is to be
determined by having regard to the content and presentational
aspects of the fax and the content that can be obtained using the
numbers, URLs or contact information mentioned in the fax
(proposed subsection 5B(1)).[31]
Regulations may provide that a specified kind of fax is not a
‘marketing fax’ for the purposes of the DNCR Act
(proposed subsection 5B(7)).
Item 29 inserts a new Part 2A
that sets out the rules regarding the sending of marketing
faxes.
Proposed section 12B is the primary provision.
It provides that a person must not send,[32] or cause to be sent,[33] a marketing fax to an Australian
number which is registered on the Register and the fax is not a
designated marketing fax. Designated marketing faxes are dealt with
in new Schedule 1A (item 71) and provide
exemptions for marketing faxes sent by certain persons and
organisations (see below under Exemptions).
Proposed subsection 12B(8) covers the ancillary
offences of aiding, abetting, conspiracy and inducing the sending
of marketing faxes by threats or promises.
Proposed subsection 12B(9) provides that the
offences under proposed section 12B are civil
penalty provisions. The penalties are set out in Part 4 of the DNCR
Act.
The Explanatory Memorandum makes
clear that this penalty provision, dealing with fax marketing,
covers the person who actually sent the fax (by dialling the
relevant number and pressing send), the author of the content of
the fax (who caused the fax to be made), or another person who
authorised the fax to be sent by contracting with a fax marketer to
provide the fax marketing services.[34]
The exceptions to an offence under
proposed section 12B are specified as:
- the relevant fax account-holder (or nominee) consented to the
sending of the fax (proposed subsection
12B(2)) [35]
- the sender had checked or ‘washed’[36] his or her lists of numbers in
the last 30 days and been advised the number was not on the
Register (proposed subsection 12B(3))
- the fax was sent by mistake (proposed subsection
12B(5)), or
- the person took reasonable precautions and exercised due
diligence to avoid the contravention (proposed subsection
12B(6)).
Under proposed subsection
12B(7), a person who wishes to rely on one of these
exceptions bears the evidential burden in relation to the matter
contained in the relevant provision.[37] These exceptions replicate the
exceptions to the prohibition on making telemarketing calls in
existing subsections 11(3) to 11(5) of the DNCR Act.
Proposed
subsection 12B(4) provides an exception to the prohibition
on sending unsolicited marketing faxes to numbers on the Register
where there is relevant ‘registered consent’.
‘Registered consent’ is defined as consent that has
been entered on the Register (item 16).[38] Under proposed
subsection 12B(4), there will not be a prohibition on
sending marketing faxes to numbers on the Register where:
- the fax marketer has washed their contact list and has been
advised that the number was registered
- registered consent applied for that number to receive calls and
faxes about an activity covered by a particular industry
classification, and
- the actual fax sent fell into an industry classification that
had been registered with respect to that number.
For a telemarketer to be able to
claim this exception, the content or purpose of the fax must fall
within the particular industry classification which the registrant
selected. The ACMA will have power under proposed section
5C to make industry classification determinations for the
purposes of the Act (item 22).[39]
Item 26 amends section 11 and provides an
equivalent exemption in relation to telemarketing calls. Its effect
is to allow telemarketing calls to numbers that have been
registered and where relevant registered consent applies.
The Minister’s second reading speech states that the
purpose of these provisions is to allow businesses to list their
numbers on the Register while continuing to receive telemarketing
calls and marketing faxes relating to specific industry
classifications.[40]
Proposed section 12C prohibits a person or
organisation entering into a fax marketing contract, arrangement or
understanding unless the contract, arrangement or understanding
contains an express obligation requiring the other party to comply
with the DNCR Act. This is a civil penalty provision
(proposed subsection 12C(3)).
The Explanatory Memorandum states that this has
been included to ensure that people causing marketing faxes to be
sent through outsourcing arrangements specifically require the fax
marketer to comply with the Act.[41] Existing section 12 provides an equivalent
requirement for contracts and agreements relating to telemarketing
calls.
As stated above, proposed paragraph 12B(1)(b)
provides an exception from the prohibition on sending unsolicited
marketing faxes in regard to ‘designated marketing
faxes’. ‘Designated marketing faxes’ are dealt
with in proposed Schedule 1A.[42] They are marketing faxes made by
or authorised by:
- government bodies (as defined in section 4 of the DNCR
Act)
- religious organisations
- charities or charitable institutions
- registered political parties; independent members of any
Commonwealth, state, territory or local government
parliament/governing body; or nominated candidates for these
parliaments. Faxes would be exempt when the purpose is to conduct
fundraising for electoral or political purposes, and
- educational institutions (as defined in section 4 of the DNCR
Act), but only in relation to faxes to students or former
students.
In all these exempt categories, if the fax 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 (proposed paragraphs 2(b),
3(1)(c), 3(2)(c), 3(3)(c) and 4(2)(e) of
proposed Schedule 1A to the DNCR Act). 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] is designed to enable charities to undertake
their normal fundraising work. It enables charities to sell goods
for which they are the supplier for a profit for the purpose of
raising funds for the organisation. However, it does not enable
them to provide marketing services for non-exempt organisations.
This limitation ensures that the exemption is not abused by
unscrupulous operators setting themselves up under the auspices of
a charity and taking advantage of the exemption to send marketing
faxes on behalf of non-exempt organisations.[43]
Regulations may also be made specifying that certain faxes are
‘designated marketing faxes’ for the purposes of the
Act (Schedule 1B, proposed clause 5).
By way of comparison, the organisation exemptions in
proposed Schedule 1B replicate the Schedule 1
organisation exemptions that currently apply in relation to
telemarketing calls.
Part 3 of the DNCR Act deals with the Register. In particular
section 13 provides for the ACMA to establish the Register or
alternatively, for the ACMA to contract it out to a contract
service provider to operate on its behalf. Currently, the only
numbers eligible to be entered on the Register are Australian
telephone numbers used either exclusively or primarily for private
or domestic purposes and not used exclusively for receiving or
transmitting faxes (section 14).
Items 30, 31, 33 and 37 to 39 of the Bill are
key amendments to the Part 3 provisions dealing with the
Register.
Item 33 repeals section 14
which sets out the criteria that currently must be met for a number
to be eligible to be entered on the Register. The effect of the
repeal is to broaden the scope of the Register so that all fax
numbers and telephone numbers that are not used or maintained
exclusively for private or domestic purposes, and all fax numbers,
can also be entered on the Register.
Item 30 replaces the word
‘telephone’ with ‘Australian’ in relation
to numbers in subsection 13(1). Its effect is that the ACMA will be
required to include fax numbers as well as telephone numbers on the
Register.
Item 31 also amends subsection 13(1) extending
the existing obligation of the ACMA to keep a register of numbers.
The ACMA would now also be required to keep a record of
‘registered consent’ by registrants on the Register.
For the meaning and purpose of ‘registered consent’ see
pages 5, 10–11, and 14 in this Digest.
Sections 15 and 16 of the DNCR Act deal with the process of
registering numbers on the Register. Items 37 to
39 propose amendments to these sections to take
account of the new process of registering consent according to
industry classifications. The amendments are:
- applications for registration could include a statement:
-
that the applicant consents to the making of telemarketing calls
(or the sending of marketing faxes) to the number, if the call (or
fax) is about an activity covered by a specified industry
classification, and
- that the
applicant wishes to have that consent entered on the Register
(item 37, proposed paragraphs 15(1)(ba) and
(bb))
- applications can be made even if the number is already
registered (thus giving those applicants already on the Register an
opportunity to use the new registered consent option) (item
38), and
- when registering numbers on the Register, the ACMA, or the
relevant contract service provider, must include the additional
information relating to registered consent (item
39).
Existing section 19 of the DNCR Act deals with accessing the
Register and sets out the process for checking numbers against the
Register. Item 52 repeals and replaces
paragraph 19(2)(d), which has the effect of
requiring the ACMA to allow those seeking access to the Register
(that is telemarketers and fax marketers) to be provided with
information in a number of different formats. For example,
applicants may request a list showing only numbers that are not on
the Register or alternatively a list showing a yes or no against
each number and also the particular industry classification that
has been selected.[44]
Several of the amendments to Part 3 of the DNCR Act replace the
words ‘telephone’ with ‘Australian’ (for
example items 46 and 49). These
are consequential to the fact that the Register would now include
fax numbers as well as telephone numbers.
Items
72 to 84 propose amendments to existing
Schedule 2 to the DNCR Act, which deals with the concept of
consent. As noted above, one of the exceptions to an offence of
making an unsolicited telemarketing call or sending an unsolicited
marketing fax is that the relevant account-holder (or nominee)
consented to the making of the call. ‘Consent’ is
defined in Schedule 2, clause 2 of the DNCR Act to mean:
- express consent, or
- consent that can be reasonably inferred from the conduct and
the business relationships of the individual or organisation
concerned (for example where a person purchases goods or services
which involved ongoing warranty).
Item 75 adds a note to the basic definition of
‘consent’, to make it clear that the new concept of
‘registered consent’ is different from ‘express
consent’.
Item 76 inserts proposed clause
3A which deals with the duration of registered consent.
Registered consent lasts for the duration of registration. It
cannot be withdrawn unless the person withdraws the number and
re-registers.[45]
Item 84 inserts proposed clauses
6 and 7 into Schedule 2 to enable the
ACMA to make determinations setting out the circumstances in which
the consent of a business or other organisation to receive
telemarketing calls or marketing faxes will be inferred or will not
be inferred. Such determinations will be legislative
instruments[46] and
must be made in consultation with the Minister. Draft
determinations will be published on the ACMA’s website to
allow public comment. The Explanatory Memorandum states that this
determination-making power is intended to operate as a reserve
power, which will give the ACMA the ability to respond to
unintended problems arising from the introduction of business
numbers on the Register.[47]
Primarily, Part 2 of Schedule 1 to the Bill makes amendments to
Part 6 of the Telecommunications Act 1997 (the
Telecommunications Act)[48] to enable the fax marketing industry to develop
industry codes and the ACMA to make industry standards relating to
fax marketing activities. These amendments are consistent with
existing arrangements which allow codes and standards to be made
for the telemarketing industry.[49]
Items 97 to 100 insert
definitions of ‘fax marketing industry’ and
‘marketing fax’. A ‘marketing fax’
incorporates the meaning given to it in proposed section
5B of the DNCR Act (item 22 of
Schedule 1 to the Bill) and is broadened to
include faxes for which one of the purposes is:
- to conduct opinion polling, or
- to carry out standard questionnaire-based research.
Item 100 inserts
proposed section 109C of the Telecommunications
Act to specify criteria that identify what a ‘fax marketing
activity’ is, for the purposes of industry codes and
standards that are developed by fax marketing industry bodies. It
is also drafted to maintain consistency with the definition of a
‘marketing fax’ in proposed section 5B
of the DNCR Act, inserted by item 22 of
Schedule 1 to the Bill.
Item 101 inserts
proposed section 110C to clarify that there are
sections of the fax marketing industry that may develop relevant
codes and standards. Similarly, item 102 inserts
proposed section 111AB to define
‘participants’ in a section of the fax marketing
industry.
Division 3 of Part 6 of the
Telecommunications Act 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 ACMA. Item 103 inserts
proposed subsection 112(1C) to state expressly
that it is Parliament's intention that the ACMA’s regulation
extends to the examination of industry codes prepared by sections
of the fax marketing industry. Item 106 inserts
proposed subsection 112(3D) to
provide criteria that the ACMA must take into account when
determining whether public interest considerations are being
addressed in a way that does not impose undue financial and
administrative burdens on participants in the fax marketing
industry. The criteria include factors such as the number of
persons likely to benefit from the code or standard; the extent to
which those persons are householders or small business operators;
and the legitimate business interests of participants in sections
of the fax marketing industry.
Existing subsection 113(3) gives
examples of the matters that industry codes and industry standards
may deal with. Item 110 inserts proposed
paragraphs 113(3)(z) and 113(3)(za) to
provide additional examples relevant to the fax marketing industry
namely:
- recording keeping practices to be followed in relation to
marketing faxes sent or attempted to be sent, and
- action to be taken to restrict the number of faxes sent by the
relevant participant during a particular time to a particular
Australian number.
Item 131 inserts
proposed section 125B that gives the ACMA the
power to determine an industry standard for participants in each
section of the fax marketing industry. The industry standard will
be a legislative instrument and must be in place at all times after
commencement of this section. The standard will set out matters
such as:
- the time and/or days during which marketing faxes may be
sent
- the specific information about the person authorising the
message that must be included in the fax
- a restriction on the number of faxes that can be sent by the
relevant participant during a particular time to a particular
Australian number, and
- a requirement that marketing faxes must contain information
about how to unsubscribe from further marketing faxes.
Many of the remaining amendments in Part 2 are consequential,
inserting references to the fax marketing industry where
appropriate in the Telecommunications Act.
Concluding comments
Telemarketing is a subject that arouses strong debate. By some
it is seen as frustrating and intrusive, by others it is a
necessary part of business and marketing.
The expansion of the Register to include fax numbers and
emergency numbers appears uncontroversial. However there is a
more mixed reaction to the proposal to allow businesses to list
their numbers on the Register and no longer receive unsolicited
telemarketing calls. While the Rudd Government indicates that
consultation has shown there is wide support for the proposal,
others, such as the Australian Direct Marketing Association, Access
Economics, and the Council of Small Businesses of Australia
strongly oppose the Bill and question the extent of that
consultation.
Parliament may ask why the Government is pursuing a significant
amendment at this time when a more comprehensive statutory review
of the Do Not Call Register scheme is underway. That review is to
look at the existing exemptions for organisations such as charities
and political parties. Surveys and studies indicate that
unsolicited calls from these exempt organisations are still a
source of frustration to those consumers who have registered their
phone numbers on the Register.[50]
There may, too, be a contradiction in a government and members
of parliament curtailing business-to-business telemarketing when
they themselves are exempt from any prohibition on making
telemarketing calls.
Back to top
[1].
For background on the introduction
of the DNCR Act, the reader is referred to: M A Neilsen, Do Not
Call Register Bill 2006, Bills Digest, no.
160, 2005–06, Parliamentary Library, Canberra, 19 June 2006,
viewed 25 January 2010,
http://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/IK0K6/upload_binary/ik0k64.pdf;fileType=application/pdf#search=%22neilsen%20do%20not%20call%22
[2].
Australian Communications and Media
Authority, Do Not Call Register statistics, viewed 8
January 2010, http://www.acma.gov.au/WEB/STANDARD/pc=PC_310882
[3]. Australian
National Audit Office, Do Not Call Register, Audit
report, No. 16, 2009–10, p. 14.
[4]. Department of
Broadband, Communications and the Digital Economy, Discussion
paper: eligibility requirements for registration on the Do Not Call
Register, August 2008, p. 6.
[5].
‘Washing’ 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 provides the
telemarketer with a clean list on which the registered numbers have
been deleted. Australian National Audit Office, op. cit., p. 9.
[6].
Ibid., p. 31.
[7].
Australian Communications and Media
Authority, op. cit.
[8].
Section 11 and Schedule 1 of the
DNCR Act.
[9].
Section 11 and Schedule 2 of the
DNCR Act.
[10]. Department of Broadband,
Communications and the Digital Economy, Discussion paper:
eligibility requirements, op. cit., p. 5.
[11]. Senator S Conroy (Minister
for Broadband, Communications and the Digital Economy), Budget
2009: Proposed expansion of the Do Not Call Register, media
release, May 2009.
[12]. Department of Broadband,
Communications and the Digital Economy, Discussion paper:
eligibility requirements, op. cit.
[13]. A Albanese, ‘Second
Reading Speech: Do Not Call Register Legislation Amendment Bill
2009’, House of Representatives, Debates, 26
November 2009, p. 10. As at 25 January 2010 those submissions
appear to be no longer available on the Department’s website.
(Note these submissions are a different set to the submissions on
the Discussion paper for the statutory review mentioned at footnote
15.)
[14].
Section 45 of the DNCR Act.
[15]. Department of Broadband,
Communications and the Digital Economy, Discussion paper: Do
Not Call Register Statutory Review, October 2009, viewed 25
January 2010,
http://www.dbcde.gov.au/telephone_services/do_not_call/statutory_review.
To date, 68 submissions responding to the discussion paper are
publicly available on the Department’s website.
[16]. Australian National Audit
Office, op. cit. ANAO made three recommendations which are listed
at p. 26 of the report.
[17]. Office of the Privacy
Commissioner, Do Not Call Register Legislation Amendment Bill
2009: submission to the Senate Standing Committee on the
Environment, Communications and the Arts, January 2010, p.
2.
[18].
M A Neilsen, op. cit., p. 5.
[19].
Ibid.
[20]. Consumer Credit Legal Centre
NSW, Submission to the Senate inquiry into the Do Not Call
Register Legislation Amendment Bill 2009, January 2010.
[21].
Ibid.
[22].
As at 27 January 2010.
[23]. Australian Direct Marketing
Association, Submission to the Senate Standing Committee on the
Environment, Communications and the Arts on the Do Not Call
Register Legislation Amendment Bill 2009, January 2010 and
Access Economics, Economic impacts of an extension of the Do
Not Call Register Act, January 2010.
[24].
Ibid., quoting Access Economics, op.
cit., p. 19.
[25].
Australian Direct Marketing Association, op.
cit., p. 3.
[26].
Access Economics, op. cit., p. 7.
[27].
Ibid., p. 5.
[28]. TrueLocal.com.au and the Council of
Small Business Organisations of Australia, Submission to the
Senate Standing Committee Inquiry into the Do Not Call Register
Legislation Amendment Bill 2009, January 2010.
TrueLocal.com.au is News Limited’s online business.
[29].
Explanatory Memorandum, Do Not Call Register
Legislation Amendment Bill 2009, p. 2.
[30].
Ibid., p. 10.
[31].
The Explanatory Memorandum at p. 11 provides
practical examples of what faxes would fit the definition of
‘marketing faxes’.
[32]. ‘Send’ is defined
as including ‘attempt to send’ (item
19), clarifying that the concept of sending a marketing
fax does not require the sender to have successfully sent a fax. It
is intended that faxes which are sent, but not successfully
received, are to be caught by the Act. See Explanatory Memorandum,
p. 9.
[33]. The extended meaning of
‘cause’ is set out in proposed subsection
12B(10). It covers the situation where a person
(referred to as the first person) enters
a contract or arrangement with another person under which that
other person undertakes to cause its employees or agents to send
marketing faxes. In that case, the first person is taken to
have caused the marketing fax to be sent.
[34].
Explanatory Memorandum, p. 14.
[35].
‘Consent’ is defined in Schedule 2
of the DNCR Act and ‘nominee’ is defined in section 39.
Consent is further described below at pp. 13–14.
[36].
‘Washed’ is described above at
footnote 5.
[37]. An ‘evidential
burden’ in relation to a matter is defined in section 4 of
the DNCR Act. It requires the person to point to evidence that
suggests a reasonable possibility that the matter exists or does
not exist.
[38]. Note that
registered consent differs to express
consent and implied consent for the purposes of the DNCR
Act.
[39].
The determinations will be legislative
instruments and will therefore be subject to parliamentary
disallowance under Part 5 of the Legislative Instruments Act
2003.
[40].
A Albanese, ‘Second Reading Speech’,
op. cit., p. 10.
[41].
Explanatory Memorandum, p. 17.
[42].
See item 71 of Schedule
1 to the current Bill.
[43].
Ibid, p. 24.
[44].
Ibid, p. 20.
[45]. Registration of a telephone
number on the Register lasts for three 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 (section 17 of the DNCR Act).
[46]. In other words they must be
registered and tabled in Parliament and would be subject to
disallowance according to the Legislative Instruments Act
2003.
[47].
Explanatory Memorandum, p. 31.
[48]. Part 6 of the
Telecommunications Act deals with industry codes and standards and
provides that bodies representing sections of the
telecommunications industry, the e-marketing industry, or the
telemarketing industry may develop industry codes. Under Part 6 the
ACMA also has a reserve power to make an industry standard if there
are no industry codes or if an industry code is considered
deficient.
[49].
Explanatory Memorandum, p. 2.
[50].
The Australia Institute, Submission to the
Do Not Call Register Statutory Review, October 2009, p. 25,
viewed 25 January 2010,
http://www.dbcde.gov.au/telephone_services/do_not_call/statutory_review/submissions_to_DNC_register_statutory_review
Mary Anne Neilsen
2 February 2010
Bills Digest Service
Parliamentary Library
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2438.
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