Bills Digest no. 161 2005–06
Do Not Call Register (Consequential Amendments) Bill
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 (Consequential Amendments) Bill 2006
Date introduced: 25 May 2006
House: House of
Portfolio: Communications, Information Technology and the
Commencement: The introductory provisions and Part
1 of Schedule 1 commence on Royal Assent. Part 2 of Schedule 1
commences at the same time as Part 2 of the proposed Do Not
Call Register Act 2006 (that is 12 months after Royal Assent
unless commenced earlier by proclamation).
The purpose of the Bill is to:
- enable the development of relevant industry codes and standards
relating to telemarketing, and
- make various consequential amendments to the
Telecommunications Act 1997, the Australian
Communications and Media Authority Act 2005 and the
Telecommunications (Carrier Licence Charges) Act 1997 to
enable investigation, compliance and enforcement action to be
undertaken by the Australian Communications and Media Authority
(ACMA) to support the operation of the proposed Do Not Call
Register Act 2006.
A detailed Background is provided in the accompanying
Bills Digest on the Do Not Call Register Bill 2006.
The amendments made by Part 1, below, of Schedule 1 commence on
Section 3 of the Telecommunications Act 1997 (TA)
specifies that one of the main objects of the TA is to provide a
regulatory framework that promotes the long term interests of end
users of carriage services or services provided by means of
carriage services. A 'carriage service' means a service for
Item 1 amends subsection 3(2) to set out an
additional object which is to promote responsible practices in
relation to the making of telemarketing calls.
Item 2 amends section 5 to add a reference to
the telemarketing industry in the simplified outline of the TA.
Items 3 to 6 insert
definitions in the interpretation section of the TA, including a
definition of the telemarketing industry and a telemarketing call.
A telemarketing call incorporates the meaning given to it in the
proposed Do Not Call Register Act 2006 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 (as defined
in clause 4).
Section 106 of the TA is the simplified outline for Part 6
Industry Codes and Industry Standards for the telecommunications
industry. Item 7 adds references in this section
to the telemarketing industry.
Item 8 inserts new section
109B in Part 6 of the TA to specify criteria that identify
what a telemarketing activity is for the purposes of industry codes
and standards that are developed by bodies and associations that
represent sections of the telemarketing industry. It is drafted to
maintain consistency with technical definitions in the Do Not Call
Register Bill 2006.
Item 9 inserts a new section
110B in the TA to clarify that there are sections of the
telemarketing industry that may develop relevant codes and
standards. Likewise, item 10 inserts a new
section 111AA in the TA to define participants in a
section of the telemarketing industry.
Division 3 of Part 6 of the TA deals with matters such as the
statement of regulatory policy applicable to the general principles
relating to industry codes and standards. The administration of the
policy rests with the ACMA. The ACMA is established under the
Australian Communications Media Authority Act 2005. The
ACMA is the successor body to the amalgamation of the Australian
Communications Authority and the Australian Broadcasting Authority.
The ACMA is empowered to give directions to carriers and
telecommunications service providers. The ACMA regulates the
telecommunications industry. Item 11 inserts a
new subsection 112(1B) in the TA to expressly
state that it is Parliament's intention that the ACMA's regulation
extends to the examination of industry codes prepared by sections
of the telemarketing industry. Item 14 inserts
new subsection 112(3C) in the TA 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 administrative burdens on
participants in the telemarketing 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 telemarketing
Subsection 113(3) gives examples of the matters that industry
codes and industry standards may deal with. Item
17 inserts new
paragraphs 113(3)(w) to 113(3)(y)
in the TA to give examples of matters relevant to the telemarketing
industry that may be dealt with by industry codes and standards.
Basically, the codes are expected to deal with agreed procedures
and actions that will be taken by the industry to regulate
Items 12, 13, 15, 16, 18, 19, 20, 21 to
35, and 37 to 38
are minor reference amendments.
Item 36 inserts new section
125A that requires the ACMA to determine an industry
standard for the telemarketing industry. The industry standard,
which will be a legislative instrument must be in place at the
commencement of Part 2 of the proposed Do Not Call Register Act
2006. It must deal with the following matters:
- the time and/or days during which telemarketing calls may be
- the specific information about the telemarketer that must be
included in a call
- a requirement that telemarketers enable calling line
identification when making calls
- a requirement that participants terminate telemarketing calls
in specific circumstances.
These industry standards will apply to all persons and
organisations making telemarketing calls, including those exempt
under the proposed Do Not Call Register Act 2006.
Before determining or varying the industry standard the ACMA
must consult with:
- any relevant industry body or association (new
subsection 125A(3)) and
- the states and territories (item 41).
The Explanatory Memorandum also points out that under other
provisions in the TA the ACMA has existing obligations to consult
with the general public, the ACCC, the Privacy Commissioner and at
least one consumer body before determining conduct
The amendments made by Part 2, below, of Schedule 1 commence at
the same time as Part 2 of the Do Not Call Register Act
As noted above, the ACMA is to be the regulator of the
telemarketing industry. The ACMA is established under the ACMA Act.
Items 42 inserts a specific reference in the ACMA
Act to the proposed Do Not Call Register Act 2006.
Items 44, 50 to 52, 54 to
57, and 59 to 71
make minor consequential amendments to the TA to insert references
to the proposed Do Not Call Register Act 2006 for the
purposes of inclusion in existing provisions that deal with matters
such as inquiries, investigations and enforcement by the ACMA. In
passing, it should also be noted that apart from hearings conducted
by the ACMA, the Minister may give a direction to the Australian
Competition and Consumer Commission (ACCC) to hold an inquiry into
specified matters in the telecommunications industry (see Part 25
Public Inquiries of the TA). Item 51 inserts a
reference to the proposed Do Not Call Register Act 2006 as
a matter that may be the subject of a hearing by the ACCC.
Item 49 inserts new section
139. It 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 Part 6 of the
TA in relation to telemarketing activities. This clause corresponds
to clause 12 in the Do Not Call Register Bill. It is a civil
penalty provision and the penalty regime for clause 12 will apply
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. [T]his provision puts a further obligation on
persons outsourcing their telemarketing calls to assist in ensuring
that such persons will comply with Part 6 of the Telecommunications
Act by making it a contractual requirement. (2)
Item 53 inserts new subsection
509(5) into the TA. It places an obligation on the ACMA to
investigate and provide assistance regarding caller identification
in cases where a person makes a complaint about an alleged breach
of a telemarketing code or standard, or about a breach of the
proposed Do Not Call Register Act. The Explanatory Memorandum
states that this would enable a person to make a complaint about
receiving silent calls.(3)
Item 58 inserts new section
515A. It provides that the ACMA may transfer complaints
regarding a breach of a telemarketing code, industry standard or
the Do Not Call Register Act to the Privacy Commissioner. The ACMA
must transfer the complaint where satisfied that the complaint
would be more conveniently and effectively dealt with by the
Privacy Commissioner under section 36 of the Privacy Act
The Telecommunications (Carrier Licence Charges) Act imposes
charges in relation to carrier licences under the TA. The amount of
the charge imposed on a carrier licence is determined by the ACMA
according to a range of factors. One of those factors is the amount
of the ACMA s costs for its telecommunications functions and
powers. Items 72 and 73 make
amendments to the definition of the ACMA s telecommunications
functions and powers in subsection 15(4). The effect is to ensure
that carriers do not fund ACMA s telecommunications powers and
functions so far as they relate to telemarketing.
- Explanatory Memorandum, p. 20.
- ibid., p. 25.
- ibid., p. 27.
Mary Anne Neilsen
19 June 2006
Bills Digest Service
Information and Research Services
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© Commonwealth of Australia 2006
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