This chapter discusses the key issues raised by submitters in relation to the Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019 (the bill). It outlines the arguments in favour and against the bill, alternative opportunities for reform, and provides the views and recommendation of the Environment and Communications Legislation Committee (the committee).
Submissions from members of the public emphasised the right of people to their privacy and the importance of consumers having a choice about what information or contact they receive, both from political representatives and charities.
Most of the submissions, however, focussed largely on the impact that the bill would have on charities and their capability to receive donations from the public. Of the 16 submissions received by the committee, a broad majority were from the charity sector, including several charities and associations, as well as some agencies that undertake telemarketing on behalf of charities.
Arguments in favour of the bill
The committee received two submissions from individuals that, on balance, supported the bill. The submissions emphasised the bill’s utility of allowing consumers the choice and the appropriate mechanism of avoiding persistent communication.
The evidence provided by these submissions indicates a negative perception of unsolicited communication. Mr Benjamin Cronshaw explained his personal experience in receiving unsolicited communications: ‘I can certainly attest (as many others can) about the annoyance of repeated, unwanted telephone communication’.
Mr Cronshaw also offered an insight on the nature of Australians giving to charity:
Many Australians give generous support to charities. But they would generally want to support charities that they know and trust, and do so at a time that works for them personally.
Increasing trust in political communication
These submissions noted that the bill’s proposed amendments to legislation regulating political communication would improve transparency, especially in election campaigns.
According to Dr Bruce Arnold, evidence highlighted a ‘history of misrepresentation in Commonwealth, state and territory elections’, in which campaign material provided false or misleading statements without any framework for consequence. This, he suggested, would have the effect of dampening the lack of trust in Australia’s politicians and their communication.
Dr Arnold noted the importance of transparency in electoral campaign material, particularly in identifying actors in political advertising:
…Australian voters and observers are legitimately entitled to question both what is going on and – thus informed – to deny you their support. Sunlight remains the best disinfectant for the dishonesty that results in political disengagement.
It was also stated that there already exists an ‘abundance of political communication during election campaigns’, and that voters who do not wish to receive communication from a certain political party or candidate should have the right to indicate so on a central register.
Privacy and choice
A key theme of the submissions in favour of the bill was an individual’s rights to privacy and to be able to have some control over the communication that they receive, both from political parties and charities.
Dr Arnold observed that there is no exhaustive right to freedom of communication in Australia:
In a liberal democratic state…we cherish the freedom of individuals to participate in political processes… People are free to shut their doors when faced by doorknockers, switch to another television/radio channel and signal that junk mail…should not be placed in mailboxes.
Dr Arnold noted this provision of the bill ‘offers a mechanism that strengthens rather than erodes human rights, given that privacy as a human right is in essence a freedom from inappropriate interference’.
Submitters in favour of the bill supported its intention in relation to the protection of consumers from unsolicited communication from the charity sector. For example, Dr Arnold stated:
The [b]ill accordingly and legitimately offers people a mechanism to protect themselves from interference. It does not prevent registered charities from contacting supporters. It will instead allow people to opt out, through the Do Not Call scheme, from receiving unsolicited and unwanted messages from charities and their proxies. That opt out as a privacy mechanism is consistent with research indicating that charities are the main source of unwanted calls and that ordinary people consider that the contact is especially annoying.
Assisting the charity sector
In contrast to some submissions from the charity sector that contended that the bill, if enacted, would render them unable to contact previous or lapsed donors, other submissions highlighted the bill’s intention that not all numbers on the Do Not Call Register will no longer be contactable by charities, especially in respect of existing donors. For example, Dr Arnold stated:
It is important to note that the proposed amendments will not stop all electronic contact by charities (directly or service providers) with potential/actual supporters. It will instead allow people to indicate that they do not want to be contacted. That indication will require action on the part of recipients of messages from charities. The default position will be that messages are accepted and can be sent unless the consumer indicates otherwise.
It was also suggested that the bill, if enacted, would have the added effect of helping to refine the arbitrary process of cold-calling and make charities more efficient, by contacting only those who were potential donors, as well as encouraging a transition to alternative, more modern methods of fundraising.
Arguments against the bill
As stated above, the majority of submissions received were from the charity sector. These submissions exclusively dealt with the impact that the bill would have on the charity sector and the current framework under which the sector operates. The evidence from these submitters can be broadly classified in the following categories:
the potential negative impact of the bill on the financial aspects of charities’ operations; and that
the conduct of the charity sector does not require regulation, as proposed by the bill.
The following sections will explore these issues.
Impact of the bill on charities
Submitters that opposed the bill expressed the concern that it would have a substantial impact on charities and their capability to receive donations from the public. These concerns were concentrated in submissions from the charity sector, including several charities and associations, and agencies that undertake telemarketing on behalf of charities.
Fundraising by or on behalf of charities were consistently identified as a vital source of income for the charity sector. Overall, the Fundraising Institute Australia (FIA) estimated that the removal of the Do Not Call Register exemption would put at risk $600 million in income to charities. The FIA also indicated that some charities are particularly heavily reliant on donations, with approximately 26 per cent relying on donations and bequests for more than half of their total income. Parkinson’s NSW emphasised this by submitting that 93 per cent of its 2018-19 income was sourced through fundraising channels.
Telemarketing is a key tool for the raising of funds for charities. IVE Tele‑fundraising emphasised the importance of telemarketing as a fundraising mechanism:
The telephone is crucially important in the not-for-profit sector as it is an extremely effective medium at monetising the interest and advocacy created in other marketing activities and, as a result, has grown in importance over the last 15 years.
Many submissions highlighted the public benefit that charities provide and that, if their capability was reduced, the work that is undertaken by these organisations would have to be burdened on the taxpayer. In relation to this, the FIA contended that the rationale for the charity sector receiving the initial exemption in the Do Not Call Act 2006 was still valid, by pointing to the original bill’s explanatory memorandum:
The exemption is broadly aimed at ensuring that calls which have a ‘public interest’ perspective, such as promoting charities or enhancing community knowledge, rather than those that are commercially driven, are not limited. Charities and religious organisations exist to benefit the Australian community and provide valuable support and community services. Evidence suggests that telemarketing provides such organisations with an important source of revenue. This exemption is aimed at ensuring that such organisations are appropriately able to continue to raise funds to support their work.
A large number of Australian numbers are listed on the Do Not Call Register. The FIA indicated that, of a sample client, 50 per cent of the numbers in its regular contact list were numbers included on the Do Not Call Register. Under the presumption that most of the numbers on the Do Not Call Register opted out from being ‘charity-contactable’, this would represent a significant proportion of potential income streams being inaccessible by charities.
Fundraising conduct and managing preferences
Another primary argument from submitters against the bill was that the conduct of the charity sector does not merit the consequence of its intentions. Although several surveys have reported a level of dissatisfaction with unsolicited calls from charities, complaints to the Australian Communications and Media Authority (ACMA) across the charity sector have fallen in recent years. The FIA highlighted this trend:
Not only do charities attract few complaints, these numbers are actually in sharp decline, having reduced by more than two-thirds since 2016-17 and ACMA have confirmed that, from a compliance perspective, there was no special attention being focused on the sector.
In its submission, the ACMA noted the low and falling level of complaints made by consumers in relation to charity calls:
Consumer complaints regarding charity calls in 2017-18 were 1.2 per cent of all complaints received in 2017-18 and 0.8 per cent in 2018-19.
These complaint rates are significantly lower than the ACMA’s comparative figures for 2015-16 and 2016-17, which are quoted in the Explanatory Memorandum, of 3.6 per cent.
Several submissions drew attention to the co-regulated codes of conduct and guidelines under which most charities undertake their fundraising activities. Many charities indicated that they have strict processes in place that limit the use of ‘cold calling’ and always respect the wishes of those who did not want to be contacted in the future.
Many charities and their proxies voluntarily adhere to the FIA Code as part of a co-regulatory framework in conjunction with the Australian Charities and Not-for-profits Commission, and other relevant tax and fundraising laws. The Code, which was implemented in 2018 following a review of the sector by the FIA, includes a provision covering the managing of donor preferences:
An important innovation in the new Code was the introduction of the Donor Care Principle. Clause 4.3b states: Members will, if asked, assist donors to stop receiving solicitations. This commits fundraisers, particularly agencies who might be working for more than one charity, to respecting the preference of some donors not to receive solicitations.
Members of the FIA must adhere to the FIA Code and training in compliance with the code must also be undertaken. This ensures that individuals undertaking fundraising activities for charities are equipped to properly handle interactions with potentially vulnerable people.
Telemarketing agencies, who undertake fundraising on behalf of (and authorised by) charities, also indicated compliance with the FIA Code and the ACMA guidelines and reported minimal complaints to the ACMA.
Opportunities for alternative reform
Some submissions highlighted the need of a more wide-ranging reform to the legislative framework for unsolicited communications. For example, the ACMA informed the committee of its findings from a 2018 report that inquired into the contemporary drivers for reform, including:
communications technologies, evolving market practices and convergence on the communications network layers of content, application and transport;
consumer behaviour and expectations; and
pressures related to the current policy and legislative framework.
The ACMA concluded that a new unified regulatory scheme should be examined:
These drivers point to consideration of a new unified unsolicited communications regulatory scheme to provide a technology-agnostic and consistent set of consumer safeguards across all telecommunications platforms… A new scheme would, ideally, consist of a universal consent-based framework under which contact could only occur where either consumer consent has first been obtained, or where a public interest exemption is applicable.
The committee acknowledges the concerns of some in the community in relation to unsolicited political communications, particularly during election periods. However, the committee is of the opinion that consideration of such matters is best undertaken by the Joint Standing Committee on Electoral Matters (JSCEM). The committee notes that the JSCEM is currently inquiring into all aspects of the 2019 Federal Election. The JSCEM has received over 150 submissions, has held three public hearings to date, and plans to visit each State and Territory as part of its inquiry. The elements of the bill in relation to introducing an unsubscribe function for unsolicited political communications and for the identification of actors in political telephone campaigns would be better dealt with in the context of the JSCEM inquiry.
The committee recognises the value of the essential work done by the many charities in Australia the effect of a major disruption to charities’ fundraising framework and potential revenue base. The committee agrees with the FIA that the rationale to exempt charities from the Do Not Call Register has not changed since the register was established.
Furthermore, the committee considers that the existing protections available to consumers, for example through industry codes of conduct, are adequate. The committee commends the measures taken by industry leaders to reform the sector and encourage best practice in engaging with current and potential donors.
While the committee is empathetic with the broad intentions of the bill, it considers that, if enacted, the bill would unduly affect the charity sector. The committee therefore recommends that the bill not be passed.
The committee recommends that the bill not be passed.
Senator the Hon. David Fawcett