Bills Digest no. 160 2005–06
Do Not Call Register Bill 2006
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
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Do Not Call Register Bill
2006
Date introduced: 25 May 2006
House: House of Representatives
Portfolio: Communications, Information Technology
and the Arts
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 time.
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. (2)
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 Register.(3)
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 activities.
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
Direct 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 Sunday,
- release the customer's telephone line within five seconds of their
hanging up or otherwise indicating they require the line to be released.
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 Australian number
- 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 Register Act
- 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 legislation,
and
- 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 calls)
- a framework to enable the development of telemarketing industry codes,
and
- an investigative, compliance and enforcement role for the ACMA to
support the operation of the proposed Do Not Call Register Act 2006.
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 Discussion Paper.
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 respects:
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 India.(10)
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 searches.(11)
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 Bill are:
- 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
Code.
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 phone numbers.
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 rules.
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 debate.
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 until 2007.(12)
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 with(13)
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 exemption.(14)
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
- land
- 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 specified as:
- 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 11(2))
- 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 11(4))
- the caller took reasonable precautions and exercised due diligence
to avoid the contravention (subclause 11(5)).
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 provision.
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 requirement.’(19)
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 concerned.
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 18)
- method of accessing the Register (clauses 19 and 20) and
- fees to be paid for accessing the Register (clause 21).
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 3).
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 Royal Assent.
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 nominee.(27)
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
and overseas.
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 the Parliament.
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 the Minister.
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 significantly.
- 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 2006.
- 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 Digest.
- ‘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 2006.
- 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 2006.
- Senator Steve Fielding, ‘Family First opposes special treatment
for politicians and pollsters’, Media release, 29 May 2006.
- 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 number.’
- 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 2006.
- 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 and 24;
- 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
discussions generally.
A law cannot restrict freedom of political
communication unless:
(i) 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.
ISSN 1328-8091
© Commonwealth of Australia 2006
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