Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008-2009-2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
DO NOT CALL REGISTER LEGISLATION AMENDMENT BILL 2010
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
DO NOT CALL REGISTER LEGISLATION AMENDMENT BILL 2009
OUTLINE
The Do Not Call Register Legislation Amendment Bill 2009 (the Bill) amends
the Do Not Call Register Act 2006 and the Telecommunications Act 1997.
Under the Bill, the Do Not Call Register will be expanded to enable
Australian emergency service and government telephone numbers and all
Australian fax numbers to be registered. This Bill will also enable numbers
to remain in force on the Register for a longer period of time.
While telemarketing and fax marketing are legitimate methods by which
businesses can market their services, the Australian Government is
concerned at the rate that unsolicited marketing faxes have grown in recent
years. As a result, there have been rising community concerns about the
inconvenience and intrusiveness of telemarketing and fax marketing on
Australians. In response to these concerns, this Bill will extend the
Register to enable emergency service and government telephone numbers and
all Australian fax numbers (including business fax numbers) to be entered
on the Register.
On 15 August 2008, the Department of Broadband, Communications and the
Digital Economy (the Department) released a discussion paper seeking
community views on potential changes to the types of numbers that are
eligible for registration on the Do Not Call Register. In particular, the
discussion paper sought views on whether:
* fax numbers should be allowed to be listed on the Register;
* emergency service operators should be allowed to list their telephone
numbers on the Register;
* all Australian telephone numbers should be allowed to be listed on the
Register (that is, including business telephone numbers); and
* unsolicited, but 'legitimate' business to business telephone calls
should be allowed to continue if businesses were eligible to register
their business numbers.
Following consideration of the Bill by the Senate Environment,
Communications and the Arts Legislation Committee (the Committee), and
taking into account concerns raised by peak organisations such as the
Council of Small Business Organisations of Australia, the Government has
decided not to extend the Register to include business telephone numbers,
although business fax numbers will be eligible to be entered on the
Register.
The Committee's Report (which was tabled on 25 February 2010) recommended
the Department consider in its statutory review of the DNCR Act extending
the period of registration. This Bill reflects the changes to the
registration period.
The main elements contained in the Bill are:
* a provision that extends the numbers eligible to be registered on the
Do Not Call Register to include emergency service and government
telephone numbers and all Australian fax numbers;
* a prohibition on sending unsolicited marketing faxes to an Australian
number which is registered on the Do Not Call Register, subject to
certain exemptions;
* a provision that agreements for the sending of unsolicited marketing
faxes must require compliance with this Act;
* civil penalty provisions for breaches of the new provisions;
* conferring powers on the ACMA to make a determination about the
circumstances in which consent will be inferred for unsolicited
marketing faxes to business numbers. This is a reserve power and there
will be no change to the existing inferred consent provisions under
the Act;
* enabling the Minister to extend, by legislative instrument, the period
of time for which numbers may remain on the Register;
* enabling the Minister to reinstate, by legislative instrument, numbers
that have ceased to be on the Register prior to this Bill, due to
their lapsing at the end of the current 3 year registration period
regime; and
* consequential amendments to Part 6 of the Telecommunications Act 1997,
to enable the fax marketing industry to develop codes relating to fax
marketing activities.
FINANCIAL IMPACT STATEMENT
Budget funding of $4.7 million has been provided over four years for the
arrangements contained in this Bill. 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. Section 21
of the Do Not Call Register Act 2006 provides that the ACMA may make a
determination in respect of fees for accessing the Do Not Call Register.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACMA: Australian Communications and Media Authority
Bill: Do Not Call Register Legislation Amendment Bill 2009
DNCR Act: Do Not Call Register Act 2006
Minister: Minister for Broadband, Communications and the Digital Economy
Register or Do Not The Do Not Call Register established under the Do
Not Call
Call Register: Register Act 2006
Spam Act: Spam Act 2003
Telecommunications Act: Telecommunications Act 1997
NOTES ON CLAUSES
Clause 1 - Short title
Item 1 provides that the Bill, when enacted, may be cited as the Do Not
Call Register Legislation Amendment Act 2010.
Clause 2 - Commencement
Item 2 sets out when each of the provisions in the Bill will commence.
It provides that the following provisions will commence on Royal Assent:
* Sections 1 to 3 of the Bill, and anything else not covered by the
table.
The following provisions will commence on a date to be fixed by
proclamation, or within 6 months after Royal Assent if not proclaimed
beforehand:
* Schedule 1 of the Bill.
Sections 1 to 3 of the Bill are introductory provisions, including the
short title of the Bill, the commencement provisions and the description of
the effect of the schedules (see Item 1 of the table). These provisions are
to commence immediately on Royal Assent.
Schedule 1 sets out the amendments that are to be made to the Do Not Call
Register Act 2006 to allow for Australian emergency service and government
telephone numbers and all Australian fax numbers to be registered on the
Register, the prohibition against the sending of marketing faxes to numbers
on the Register and compliance requirements for agreements relating to the
sending of marketing faxes. Schedule 1 sets out the provisions relating to
designated marketing faxes and the consequential amendments to Part 6 of
the Telecommunications Act. These provisions will commence on a date to be
fixed by Proclamation, or within 6 months after Royal Assent if not
proclaimed beforehand.
Subitem 2(2) makes it clear that column 3 of the table contains additional
information that is not part of this Bill.
The ACMA will be undertaking an education initiative in respect of these
changes.
Clause 3 - Schedule(s)
Clause 3 provides that each Act that is specified in a Schedule to the Bill
is amended or repealed as set out in that Schedule and any other item in a
Schedule has effect according to its terms. There is one Schedule to the
Bill which amends the DNCR Act and the Telecommunications Act.
Schedule 1 - Amendments
Part 1 - Amendment of the Do Not Call Register Act 2006
Division 1 - Amendments
Item 1 - Section 3
Item 1 amends the simplified outline in section 3 of the DNCR Act to
include a statement about the general prohibition against the sending of
unsolicited marketing faxes to a number registered on the Register. The
simplified outline is designed to assist people in understanding the broad
elements in the Act.
Item 2 - Section 3 (note)
Item 2 amends the note which immediately follows section 3 of the DNCR Act
to include a reference to marketing faxes.
Item 3 - Section 4 (definition of authorise)
Item 3 repeals the definition of 'authorise' in section 4 of the DNCR Act
and replaces it with a new definition. The new definition retains the
original definition in the context of making telemarketing calls but
includes a new definition relating to the sending of marketing faxes.
Item 4 - Section 4
Item 4 inserts a definition of the term 'business number'. This definition
is relevant to the proposed addition to Schedule 2 of the Act which gives
the ACMA the power to make a determination to infer consent for business
numbers to receive marketing faxes (see the explanatory notes for Item 84
of Schedule 1 to the Bill).
A business number is an Australian number. The term 'Australian number' is
defined in the DNCR Act as a number that is specified in the numbering plan
referred to in section 455 of the Telecommunications Act and for use in
connection with the supply of carriage services to the public in Australia.
There is no technical distinction between a fax number and a telephone
number; both are included under the definition of an Australian number.
The term 'Australian number' is relevant to the types of numbers that can
be registered on the Do Not Call Register.
This definition ensures that the Act covers the sending of a marketing fax
to a number on the Register, whether a telephone or fax number. Similarly,
the Act covers the making of a telemarketing call to a telephone or fax
number that is registered.
Item 5 - Section 4 (definition of cause)
Item 5 makes a minor consequential amendment to the definition of 'cause'.
The term 'cause' has the meaning affected by subsections 11(9) and 12B(10).
Item 6 - Section 4 (after paragraph (d) of the definition of civil penalty
provision)
Item 6 makes minor consequential amendments to the definition of 'civil
penalty provision'. These are required as a result of the introduction of
new civil penalty provisions regarding the sending of unsolicited marketing
faxes.
Item 7 - Section 4 (definition of consent)
Item 7 makes a minor consequential amendment to the definition of
'consent'. It will now deal with the sending of marketing faxes in addition
to telemarketing calls. This is required as a result of the new provisions
prohibiting the sending of unsolicited marketing faxes.
Item 8 - Section 4 (definition of dealing with)
Under Part 4 of the DNCR Act, a Court may make an ancillary order for
compensation where a person has suffered loss or damage as a result of a
contravention of a civil penalty provision. In determining whether a person
has suffered loss or damage and in assessing the amount of compensation, a
Court may take into account a number of factors relating to 'dealing with'
the unsolicited telemarketing call.
Item 8 extends the existing definition of 'dealing with' to include action
relating to a marketing fax (which includes the printing and retrieving of
the fax from a device or computer system).
Item 9 - Section 4
Item 9 inserts a new term 'designated marketing fax'. This term is defined
to have the meaning given by Schedule 1A to the Bill. In essence, certain
faxes sent or authorised to be sent by government bodies, religious
organisations, charities, registered political parties, independent members
of Parliament, political candidates, as well as certain faxes sent or
authorised to be sent by educational institutions are designated marketing
faxes for the purposes of this Bill.
The meaning of 'designated marketing fax' is discussed in greater detail
below in the notes to Schedule 1 to the Bill. 'Designated marketing faxes'
are exempt from section 12B. The effect of these provisions is that certain
faxes can be sent to Australian numbers, even if the numbers are registered
on the Do Not Call Register. It is worthwhile noting that many of these
faxes may fall outside the meaning of a 'marketing fax' as defined in Item
15 of this Bill, even without a specific exemption, as they would not be
commercial in nature.
Item 9A - Section 4 (definition of emergency service number)
Item 9A inserts a new term 'emergency service number'. This term is defined
to have the same meaning as in the Telecommunications Act. This definition
relates to item 33, which expands the range of numbers eligible to be
entered on the Do Not Call Register to include emergency service numbers.
Item 10 - Section 4 (definition of employee)
Item 10 of Schedule 1 to the Bill makes a consequential amendment to the
definition of 'employee'. The term 'employee' is used in clause 4 of
Schedule 1A of the Bill, which relates to when a marketing fax that is sent
or authorised to be sent by an educational institution is a 'designated
marketing fax' and exempt from the prohibition on sending unsolicited
marketing faxes.
Under new Schedule 1A to the Bill, employees include members of the
executive body of a body corporate, contractors, Members of Parliament,
local councillors, and officeholders such as an individual who is in the
service of an armed force or a police force.
In addition, the Item provides clarification of the current definition of
'employee' when used in relation to 'designated telemarketing calls' by
referring to the meaning given at clause 7 of Schedule 1 to the Act.
Item 11 - Section 4 (definition of employer)
Item 11 makes a consequential amendment to the definition of 'employer'.
The term 'employer' is used in clause 4 of Schedule 1A of the Bill, which
relates to when a marketing fax that is sent or authorised to be sent by an
educational institution is a 'designated marketing fax' and exempt from the
prohibition on sending unsolicited marketing faxes.
Clause 7 of Schedule 1A includes bodies corporate, contractors, the
Commonwealth, State or local governing bodies (in relation to members of
Parliament and local governments), and certain offices such as the armed
forces, or police forces, in the meaning of an employer.
In addition, Item 11 of the Bill provides clarification of the current
definition of 'employer', when used in relation to 'designated
telemarketing calls' in Schedule 1 by referring to the meaning given at
clause 7 of Schedule 1.
Item 13 - Section 4
The term 'fax' is broadly defined as having the meaning given by proposed
section 5A.
Item 15 - Section 4
The term 'marketing fax' is defined as having the meaning given by section
5B (refer to the commentary on Item 22 below).
Item 17 - Section 4
The term 'relevant account-holder,' in relation to an Australian number, is
defined by reference to the individual or organisation that has
responsibility for the account. If an individual or organisation is solely
responsible for the relevant account, that individual or organisation is
the relevant account-holder. In contrast, if two or more individuals or
organisations are jointly responsible for the relevant account, any of
those individuals or organisations will be the relevant account-holders.
Under proposed subsection 12B(2), the sending of a marketing fax which
would otherwise be a breach of proposed subsection 12B(1) will be permitted
under the amended DNCR Act if the relevant account-holder or a nominee of
the relevant account-holder has consented to the sending of the fax (see
proposed subsection 12B(2) discussed at Item 29 below).
Item 18 - Section 4 (definition of relevant telephone account-holder)
Item 18 repeals the term 'relevant telephone account-holder' from the DNCR
Act. This term, which implies reference to traditional telephony services,
is replaced by the broader term 'relevant account-holder' to encompass
communications services other than traditional telephony services.
Item 19 - Section 4
The term 'send' is defined to include an attempt to send. This clarifies
that the concept of sending a marketing fax does not require the sender to
have successfully sent a fax (i.e. the fax need not be received as a fax
message by an end user).
It is intended that faxes which are sent, but not successfully received,
are caught by the Act. For example, faxes sent to a telephone number that
is not connected to a fax machine are captured by the extended definition
of send. The fax may be received as a series of incoherent beeps, rather
than as a meaningful communication. It means that a person will have
contravened these provisions even if they have not been successful in
sending the fax in the ordinary sense.
The concept of sending a marketing fax is central to the penalty provisions
in Part 2 of the Bill which broadly prohibit the sending of unsolicited
marketing faxes to numbers on the Register.
Item 20 - Subsection 5(1)
Item 20 makes a consequential amendment by replacing the reference to 'a
telephone' number with reference to 'an Australian' number. This amendment
ensures that numbers other than telephone numbers (for example, fax
numbers) are included in the scope of the DNCR Act.
Item 21 - Paragraphs 5(1)(c) and (d)
Item 21 makes consequential amendments to references to 'telephone numbers'
by removing the term 'telephone'. This expands references to numbers to
include other types of numbers, such as fax numbers.
Item 22 - After section 5
Proposed new section 5A - Faxes
Under new section 5A, 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.
The ordinary usage of the term 'fax' is reference to a communication sent
using telecommunications technology to transfer copies of documents over a
telephone network. However, the proposed definition of 'fax' will expand
this concept so as not to exclude new forms of communications that can be
used for sending fax messages. This broad approach to defining the concept
of 'fax' is to ensure that a range of existing technologies are covered and
that the Act is 'future-proofed' in the event that new systems or
technologies for transmitting and receiving faxes are established.
It is intended that a fax will cover communications that are transmitted
using a fax protocol, even if they originated as a different form of
technology. This will also include faxes that are received through other
technologies, but have been transmitted as a fax. There are multiple
technologies and equipments which are capable of receiving the fax, such as
a computer, a traditional fax machine or a telefax machine. A telephone may
also receive the fax, but not in a meaningful way.
Where a recipient uses a system that converts the fax to a different form
of technology, it does not prevent the fax from being covered by the Act.
For example, a fax may be sent using a fax machine, computer or fax
gateway, but may be received as an email due to software set up by the
recipient. In this case because the fax was transmitted as a fax and the
conversion to email occurred at the point of receipt, the sending of the
fax would be covered by the Act.
Marketing faxes sent and received in any of the ways set out below will be
covered by the DNCR Act. There is also provision in the Act for the
regulations to specify additional systems or equipment for sending
marketing faxes.
|Sent |Received |
|Fax machine |Fax machine |
|Computer (mail-to-fax system to |Computer (fax-to-mail system |
|convert an email to a fax) |that converts the fax to an |
| |email) |
|Fax gateway |Telephone |
|Fax server | |
The Spam Regulations 2004 specifically exclude fax messages from the
definition of an electronic message under the Spam Act 2003. This excludes
messages sent as a fax from coverage under the Spam Act. A message that is
not sent using fax protocol, but is converted to a fax by the recipient's
system will not be covered by the DNCR Act, but may be subject to the Spam
Act if it is sent as an electronic message. For example, if a person sends
an email that is received as an email in the recipient's system and is then
sent to a fax machine for the purpose of printing, it will not be covered
by the DNCR Act.
Proposed new section 5B - Marketing faxes
In respect of marketing faxes, proposed new section 5B (refer Item 22 of
Schedule 1 to the Bill) sets out the basic definition of 'marketing fax'
for the purposes of the Bill. This term is a key concept in the Bill, which
has a primary purpose of setting up a scheme for regulating the sending of
unsolicited marketing faxes. Also, this term is a key element in the
penalty provisions of the Bill (see the discussion below in relation to
Part 2 of the Bill which sets out various rules applying to the sending of
unsolicited marketing faxes).
In general terms, a 'marketing fax' is a fax which has a 'commercial-type'
purpose. It is defined as a fax sent to a number which has a particular
purpose as set out in paragraphs 5B(1)(d) to (n). The purpose of the fax is
to be determined by having regard to the content of the fax (paragraph
5B(1)(a)), the presentational aspects of the fax (paragraph 5B(1)(b)), and
the content that can be obtained using the telephone numbers, URLs or
contact information (if any) mentioned in the fax (paragraph 5B(1)(c)). For
example, if the fax itself contains nothing of a 'commercial nature', but
it includes a telephone number, which if called contains a message which is
'commercial in nature' then this will be a marketing fax for the purposes
of this Bill (see paragraph 5B(1)).
If a fax does not have content that can be obtained by using numbers, URLs
or contact information (i.e. paragraph 5B(1)(c)), then the purpose of the
fax will be determined from the content of the fax and its presentational
aspects (paragraphs 5B(1)(a) and (b)).
Paragraphs 5B(1)(d) to (n) set out the various purposes which would bring a
fax within the meaning of a 'marketing fax' for the purposes of the Bill.
It includes the following purposes:
* to offer to supply, advertise or promote goods or services, or a
supplier, or prospective supplier, of goods or services (paragraphs
5B(1)(d) to (f)). The terms 'goods', 'services' and 'supply' are
defined in section 4 of the DNCR Act. Common examples of faxes which
would be covered by this definition are faxes offering to supply
telecommunications services; selling computer equipment; selling
tickets in a promotional competition; and marketing financial products
such as insurance;
* to offer to supply, advertise or promote land or an interest in land
or a supplier, or prospective supplier, of land or an interest in land
(paragraphs 5B(1)(g) to (i)). This would cover faxes which advertise
real estate. The term 'supply' in relation to land or an interest in
land is defined in section 4 of the DNCR Act. This would cover faxes
promoting an information seminar, the purpose of which is to sell unit
trust properties;
* to offer to provide, advertise or promote a business opportunity or
investment opportunity or a provider or prospective provider, of a
business opportunity or investment opportunity (paragraphs 5B(1)(j) to
(l)). This would, for example, include faxes from investment companies
promoting particular portfolios and scams;
* to solicit donations (paragraph 5B(1)(m)). Faxes sent to solicit
donations are likely to be sent by or on behalf of exempt
organisations such as charities (see proposed Schedule 1A which
enables certain organisations to send marketing faxes to numbers
registered on the Do Not Call Register). However, it is possible that
other organisations would also send faxes to procure donations. Such
faxes would ordinarily be considered to be 'marketing', and
consequently are included;
* a purpose specified in the regulations (paragraph 5B(1)(n)). This
regulation-making power has been included to enable other types of
faxes to be included within the meaning of 'marketing fax'. The
regulation-making power could be used as a reserve power to enable
regulations to be made at a later date if a particular type of fax
became apparent which was not covered by this definition.
If a fax does not come within any of the above paragraphs (that is, it does
not have a 'commercial-type' purpose), it will not be covered by the
amendments set out in Schedule 1 to the Bill, even if it may ordinarily be
considered to be fax marketing.
Item 23 - Paragraphs 11(2)(a) and (b)
Item 23 removes the term 'telephone' in relation to account-holders as a
consequence of the new term 'relevant account-holder' inserted by Item 17.
Item 24 - Paragraph 11(3)(b)
Item 24 repeals the previous paragraph 11(3)(b) of the DNCR Act and
replaces it with a new paragraph which updates references to a number of
paragraphs in the Act to reflect the proposed changes contained in the
Bill.
Item 25 - Subsection 11(3)
The change at Item 25 has the effect of changing references to 'telephone
number' to the broader concept of 'Australian number'. This change is
necessary in order to include other numbers, for example, fax numbers, in
the scope of subsection 11(3).
Item 28 - Paragraph 12(1)(b)
Item 28 amends paragraph 12(1)(b) of the Act by changing the reference to
'telephone numbers' to the broader concept of 'Australian numbers'. This
change is necessary in order to include other numbers, for example, fax
numbers, in the scope of subsection 12(1).
Item 29 - After Part 2
Item 29 inserts proposed Part 2A into the DNCR Act and includes a
simplified outline of the new Part 2A of the Act. This outline provides a
broad overview to assist readers. It is not designed as a comprehensive
statement of the provisions in Part 2.
Proposed Part 2A - Rules about sending marketing faxes
Proposed section 12A - Simplified outline
Proposed section 12A outlines the prohibitions and requirements set out in
Part 2 which are as follows:
* unsolicited marketing faxes must not be sent to a number registered on
the Do Not Call Register; and
* agreements for the sending of marketing faxes must require compliance
with this Act.
Proposed section 12B - Unsolicited marketing faxes must not be sent to a
number registered on the Do Not Call Register
Proposed section 12B prohibits a person sending, or causing to be sent, a
marketing fax to an Australian number if the number is registered on the Do
Not Call Register, subject to various exceptions set out in proposed
subsections 12B(2) to (6).
Proposed subsection 12B(1) provides that a person must not send, or cause
to be sent, a marketing fax to an Australian number which is registered and
if the fax is not a designated a marketing fax. The following terms, which
are discussed elsewhere in these notes, are relevant to the interpretation
of proposed subsection 12B(1):
* the definition of 'send' in proposed section 4;
* 'marketing fax' in proposed section 5B;
* the extended meaning of 'cause' in proposed section 4; and
* 'designated marketing faxes' in proposed Schedule 1A.
This penalty provision 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. This prohibition covers the attempted
transmission of faxes (see the definition of 'send' discussed at Item 19).
Therefore a fax which was not successfully received or which was received
on a telephone as a series of beeps would be covered by the penalty
provision.
Under proposed subsection 12B(1), the sending of the fax will only be
prohibited if it is sent to an Australian number that is on the Do Not Call
Register. The meaning of an Australian number is defined in section 4 of
the DNCR Act and includes telephone and fax numbers. This means that the
Act prohibits the sending of a marketing fax to a fax number or a telephone
number that is listed on the Register.
Proposed subsection 12B(1) covers marketing faxes regardless of their
origin that are sent to Australian numbers. For example, it would cover
overseas fax marketers sending faxes to an Australian number as well as
Australian fax marketers sending faxes to an Australian number. It also
covers a person who has contracted a person to send marketing faxes on
their behalf (see the extended meaning of 'cause' in Item 5 of the Bill).
This prohibition does not apply to faxes sent from an overseas number to an
overseas number, or faxes sent to an Australian number which is not
registered on the Do Not Call Register.
Under proposed paragraph 12B(1)(b), a 'designated marketing fax' is exempt
from proposed section 12B. 'Designated marketing fax' is defined in
proposed Schedule 1A and includes certain marketing faxes sent by religious
organisations, charities or political parties, independent Members of
Parliament and candidates and certain faxes sent by educational
institutions. The meaning of 'designated marketing fax' is discussed in
greater detail below under Schedule 1A.
The Act is not intended to cover carriage service providers who simply
provide the carriage service to transmit a fax. However, where a person
provides a carriage service and has knowledge of or involvement in its
contents, they may be liable for the sending of a marketing fax under the
ancillary contravention provisions of the Act. Further, a person who causes
or sends a marketing fax and provides the carriage service for the fax may
be liable for sending or causing the marketing fax to be sent. For example,
if a carriage service provider was sending or causing marketing faxes to be
sent that promote its goods or service it may be covered by the Act.
This is consistent with the treatment of carriage service providers in
relation to the making or causing of telemarketing calls. 'Carriage
service' is defined in the Act by reference to the definition in the
Telecommunications Act.
Under the Act, more than one person may be taken to have sent or caused a
marketing fax to be sent. For example, a number of people may be involved
in the sending of a marketing fax or a number of people may have authorised
the sending of the fax.
Exceptions
There are four exceptions to the new prohibition against the sending of
unsolicited marketing faxes to numbers on the Register:
* if the relevant account-holder, or their nominee, consented to the
fax;
* if the sender had washed their lists in the last 30 days and the
number was not on the Register at that time;
* if the fax was sent, or caused to be sent by mistake; or
* if the person took reasonable precautions, and exercised due
diligence, to avoid the contravention.
As with the current exceptions under the Act, the onus is on the person
claiming the exception to establish that it applies.
New subsection 12B(2) provides an exception to the prohibition on sending
unsolicited marketing faxes to numbers on the Register, if the fax marketer
adduces evidence that the relevant account-holder, or their nominee,
consented to the sending of the fax. The effect of this is that a fax
marketer may send a marketing fax to a number on the Register where that
the recipient has given their express or inferred consent to receive the
fax. The concept of 'consent' is defined in Schedule 2 of the Act.
Subsection 12B(3) provides an exception to the prohibition on sending
unsolicited marketing faxes to numbers on the Register, if the fax marketer
has 'washed' or checked their contact list with the relevant register
operator in the previous 30 days before the fax was sent. This gives fax
marketers a 30-day grace period to update their contact lists and ensure
that they are not sending faxes to numbers on the Register. If the Register
Operator provides incorrect information that the number was not on the
Register and the number was listed, the fax marketer will be able to rely
on this exception and will not be in breach of section 12B.
The Register will be kept as one list combining the different classes of
numbers and allowing marketers to check their contact lists against all
numbers on the Register. This will enable fax marketers to remove telephone
numbers that have been incorrectly added to their contact list. It will
prevent registrants from receiving faxes to their telephone number as a
series of incoherent beeps or other sounds. It will also prevent
telemarketers from making telemarketing calls to fax numbers that may
result in the recipient's communications equipment being tied up.
Subsection 12B(5) provides an exception to the prohibition on sending
unsolicited marketing faxes to numbers on the Register if the fax was sent,
or caused to be sent, by mistake. 'Mistake' is defined in section 4 as a
reasonable mistake of fact. This exception may apply where a person dials
an incorrect number when sending a marketing fax. A person cannot rely on
the exception to argue that they were unaware that a number was on the
Register, if they had not checked the Register.
Subsection 12B(6) provides an exception to the prohibition on sending
unsolicited marketing faxes to numbers on the Register if the person took
reasonable precautions, and exercised due diligence, to avoid the
contravention. For example, if a person contracted a third party to
undertake fax marketing on their behalf, and they included a contractual
provision which required the fax marketer to comply with the provisions of
the Act, then this may be used to demonstrate that they had taken
reasonable steps to avoid a contravention of section 12B. However, if the
contracting party became aware that the fax marketer was contravening
section 12B and did nothing to enforce the terms of the contract, they
cannot be said to have exercised due diligence and they could not make use
of this exception.
New subsection 12B(8) sets out ancillary provisions. New subsection 12B(9)
provides that subsections (1) to (8) are civil penalty provisions.
Extended meaning of cause
Subsection 12B(10) extends the meaning of 'cause'. If a person enters into
a contract, arrangement or arrives at an understanding with another person
under which the other person undertakes to cause its employees or agents to
send marketing faxes, the other person is taken to have caused the
marketing fax to be sent.
Proposed section 12C - Agreements for the sending of marketing faxes must
require compliance with this Act
New section 12C requires that agreements for the carrying out of fax
marketing activities require compliance with the Act.
The effect of this amendment is to prohibit a person from making an
agreement or contract, or arriving at an understanding with a second
person, whereby under that agreement, contract or understanding the second
person will undertake to send marketing faxes or cause agents or employees
of the second person to send marketing faxes. It applies to circumstances
where there is a reasonable likelihood that some or all of those faxes will
be sent to Australian numbers that are eligible to be entered on the Do Not
Call Register, and the contract, agreement or understanding does not
include an express provision requiring the second person (and the second
person's employees and agents where relevant) to take reasonable steps to
comply with the Act.
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.
Ancillary contraventions are set out in subsection 12C(2).
New subsection 12C(3) provides that subsections 12C(1) and (2) are civil
penalty provisions. Subsection 12C(4) makes it clear that a failure to
include such a requirement does not affect the validity of any contract,
arrangement or understanding.
Item 30 - Subsection 13(1)
Item 30 replaces the word 'telephone' with 'Australian' in reference to
numbers. This amendment means that the ACMA or third party (the contracted
service provider) will be required to include numbers other than telephone
numbers on the Do Not Call Register. This includes fax numbers. Item 32 -
Subsection 13(6)
Item 32 makes a consequential amendment to section 13(6) of the DNCR Act by
including as a primary purpose of the Do Not Call Register the purpose of
facilitating the prohibition on the sending of unsolicited marketing faxes,
under section 12B (other than designated marketing faxes).
This amendment is for the purposes of the Privacy Act 1988 which (among
other things) requires an organisation such as the ACMA or a third party
authorised by the ACMA under subsection 13(1) of the DNCR Act to use
personal information, such as the personal information contained on the Do
Not Call Register, for the purpose for which it was collected. In this
instance, that purpose is specified at proposed subsection 13(6) of the
DNCR Act.
Item 33 - Section 14
Item 33 repeals section 14 and substitutes a new section 14 which sets out
the expanded criteria that must be met for a number to be eligible to be
entered on the Do Not Call Register and thus avail itself of the
protections afforded by the DNCR Act. The new section makes clear that
those Australian numbers eligible to be entered on the Do Not Call Register
are numbers either: used or maintained primarily for private or domestic
purposes; or used or maintained exclusively for transmitting and/or
receiving faxes; or used or maintained exclusively for use by a government
body; or are emergency service numbers. This means a business telephone
number will not be eligible to be entered on the Register, but a business
fax number will be eligible.
Item 35 - Section 15
Item 35 makes a consequential amendment to section 15 by replacing the
words 'a telephone' with 'an Australian' in reference to numbers eligible
for entry on the Do Not Call Register.
Item 36 - Subparagraphs 15(a)(i) and (ii)
Item 36 of the Bill makes a consequential amendment to subparagraphs
15(a)(i) and (ii) by removing the term 'telephone'.
Item 39 - Paragraph 16(a)
Item 39 makes a consequential amendment to paragraph 16(a) by replacing the
words 'a telephone number' with 'an Australian number' in reference to
numbers eligible for entry on the Do Not Call Register.
Item 40 - Subsection 17(1)
Item 40 makes consequential amendments to subsections 17(1), (2) and (3) by
replacing the words 'a telephone' with 'an Australian'.
Item 42 - Paragraph 17(1)(b)
Item 42A - After subsection 17(1)
This item repeals paragraph 17(1)(b) of the DNCR Act and replaces it with a
new paragraph and also inserts a new subsection 17(1A). These provisions
enable the Minister to specify, by legislative instrument, a longer period
for which a number may remain in force on the Register than the 3 years
currently prescribed in paragraph 17(1)(b).
A number of submissions to the Senate Environment, Communications and the
Arts Legislation Committee and the statutory review of the DNCR Act being
undertaken by the Department of Broadband, Communications and Digital
Economy expressed the view that the registration period should be extended.
The amendments to the DNCR Act in this item enable the Minister to increase
the registration period.
Item 43 - Subsection 17(2)
Item 43 makes consequential amendments to subsection 17(2) by replacing the
words 'a telephone' with 'an Australian'.
Item 46 - Subsection 17(3)
Item 46 makes consequential amendments to subsection 17(3) by replacing the
words 'a telephone' with 'an Australian'.
Item 49 - Paragraph 18(1)(a)
Item 49 makes consequential amendments to paragraph 18(1)(a) by replacing
the word 'telephone' with 'Australian'.
Item 50 - Subsection 19(1)
Item 51 - Paragraph 19(2)(c)
Items 50 and 51 of the Bill make consequential amendments to subsection
19(1) and paragraph 19(2)(c) by replacing the word 'telephone' wherever
occurring with 'Australian'.
Item 52 - Paragraph 19(2)(d)
Item 52 repeals existing paragraph 19(2)(d) and substitutes new paragraphs
19(2)(d), (e) and (f) which are designed to provide access-seekers
(typically telemarketers and fax marketers) with information detailing
whether numbers contained within a list are or are not on the Register, in
the format they prefer.
For example, the access seeker may prefer a list showing all numbers with a
'yes' or 'no' against each number. Alternatively, the access-seeker may
prefer a list that shows only numbers that are not on the Register. This is
achieved by creating an obligation on the ACMA to provide this information.
Item 53 - Subsection 19(3)
Item 53 repeals subsection 19(3), as it is no longer necessary with the
introduction of paragraphs 19(2)(d), (e) and (f), which are discussed in
Item 52 above.
Item 54 - Paragraph 20(1)(b)
This Item amends the Item references in paragraph 20(1)(b) to take into
account new paragraphs 19(2)(d) and (e).
Item 55 - Paragraph 20(1)(c)
This Item makes a consequential amendment to a reference in paragraph
20(1)(c), in light of the repeal of subsection 19(3).
Item 56 - Paragraph 21(1)(a)
Item 57 - Subsections 21(2), (3) and (7)
Item 56 and Item 57 make consequential amendments, necessary as a result of
the repeal of subsection 19(3).
Item 58 - Subsections 25(1), (3), (4), (5) and (6)
Item 58 of the Bill inserts after '11(1) or (7)' the reference '12B(1) or
(8)' at subsections 25(1), (3), (4), (5), and (6). This is necessary as a
result of the new rules about sending marketing faxes, inserted by Item 29
above.
Item 59 - After subsection 30(2)
Item 59 inserts new subsection 30(2A) which relates to the loss a person
(the victim) has suffered as a result of a contravention of section 12B.
New subsection 30(2A) sets out matters which the Federal Court or the
Federal Magistrates Court may have regard to in determining whether a
person has suffered loss or damage as a result of a contravention of
section 12B and in assessing the amount of compensation payable.
Item 60 - Subsection 39(1)
Item 62 - Subsection 39(3)
Item 63 - Subsection 39(4)
Item 60 makes consequential amendments to subsection 39(1) by replacing the
words 'a telephone' with 'an Australian', as does Item 63 in respect of
subsection 39(4). Similar word changes are made under Item 62 where the
word 'telephone' occurs in subsection 39(3).
Item 61 - Subsection 39(1)
Item 64 - Subsection 39(4)
Item 61 makes consequential amendments to subsection 39(1) by replacing the
words 'relevant telephone' with 'relevant'. A similar change is made in
Item 64, in respect of the occurrence of the words 'relevant telephone' in
subsection 39(4). This change is made as a result of the introduction of
the new concept of Australian number in place of telephone number.
Item 65 - At the end of section 39
New subsection 39(5) is inserted to make it clear that the references to a
nominee in the Act do not limit the application of the common law
principles of agent. This means that the agent of a person (applying
general principles of law) is permitted to register a number on behalf of
their principal.
Item 66 - Paragraphs 41(a), (b) and (c)
Item 66 inserts a reference to unsolicited marketing faxes in paragraphs
41(a), (b) and (c).
Item 67 - At the end of subsection 44(1)
Item 67 makes a consequential amendment by inserting at the end of
subsection 44(1) the term 'or marketing faxes'.
Item 68 - Paragraph 4(1)(b) of Schedule 1
Item 69 - Subparagraph 4(1)(c)(i) of Schedule 1
Item 70 - Paragraph 4(2)(b) of Schedule 1
These Items omit references to 'telephone' in paragraph 4(1)(b),
subparagraph 4(1)(c)(i) and paragraph 4(2)(b) of Schedule 1 to the DNCR
Act. These are consequential amendments.
Item 71 - After Schedule 1A
Item 71 inserts new Schedule 1A after Schedule 1.
Schedule 1A-Designated marketing faxes
'Designated marketing faxes' are exempt from the prohibition on sending
unsolicited marketing faxes to a number registered on the Do Not Call
Register (see the proposed new section 12B discussed at Item 29 above).
Schedule 1A sets out the comprehensive meaning of a 'designated marketing
fax' for the purposes of the DNCR Act.
In essence there are three categories of marketing faxes which are
'designated marketing faxes' and excluded from certain rules relating to
the sending of such faxes. They are:
* certain faxes authorised to be sent by government bodies, religious
organisations and charities;
* certain faxes authorised to be sent by a registered political party,
independent members of Parliament, or political candidates; and
* certain faxes authorised to be sent by educational institutions.
Clause 1 - Object
Item 1 of Schedule 1A provides that the object of Schedule 1A is to define
the expression 'designated marketing faxes'. The notes to this Item point
out that a designated marketing fax is exempt from section 12B (prohibition
against the sending of unsolicited marketing faxes to a number registered
on the Do Not Call Register).
Clause 2 - Government bodies, religious organisations and charities
This Item is intended to exempt certain faxes relating to goods and
services sent by government bodies, religious organisations and charities
from the prohibition on sending unsolicited marketing faxes to a number on
the Do Not Call Register. Certain limits are placed on the exemption to
ensure that such bodies do not unfairly exploit their 'exempt' status and
allow inappropriate fax marketing to occur.
This exemption is broadly aimed at ensuring that faxes with a 'public
interest' perspective, such as promoting charitable activities or enhancing
community knowledge, are not limited. Charities and religious organisations
exist to benefit the Australian community and provide valuable support and
community services. This exemption is aimed at ensuring that such
organisations are able to continue to raise funds to support their
activities. It also aims to ensure that there is no unintended restriction
on government-to-citizen communication.
Meaning of 'government body'
A 'government body' is defined in section 4 of the DNCR Act. It means a
department, agency, authority or instrumentality of the Commonwealth,
State, Territory, or of a foreign government or a government of part of a
foreign country.
Meaning of 'religious organisation'
The term 'religious organisation' is to have its ordinary meaning.
Meaning of 'charity' and 'charitable purposes'
The terms 'charity' and 'charitable organisation' are to be given their
ordinary meaning. Ordinarily a 'charity' is an entity that is not-for-
profit and has a dominant purpose or purposes that are charitable and for
the public benefit. Where the organisation has other purposes, those
purposes must further, or be in aid of, the dominant purpose or purposes,
or be ancillary or incidental to the dominant purpose or purposes.
Organisations that have a dominant purpose to advocate a political party or
cause, support a candidate for political office or attempt to change the
law or government policy, would not be a charity within its ordinary
meaning. The charitable organisation must not engage in activities that are
illegal.
'Charitable purposes' covers purposes relating to the advancement of
health, education, social and community welfare, religion, culture or the
natural environment, or other purposes beneficial to the community.
'Advancement' includes protection, maintenance, support, research,
improvement or enhancement.
Not all faxes sent by government bodies, religious organisations and
charities will be exempt from section 12B. The exclusion is limited by
paragraph 2(b). This paragraph provides that in the case of the sale of
goods or services, the exemption only applies if the relevant body is the
supplier or prospective supplier of the goods or services concerned. For
example, the exemption would apply where a diabetes support organisation
was promoting its own range of support services.
Paragraph 2(b) of Schedule 1A to the Bill has been included to ensure that
exempt categories are not abused. It 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.
A specific regulation-making power has been included in paragraph 2(c) of
Schedule 1A, which could be used to specify when a fax does not fall within
an exempt category. This has been included to ensure that the Government
can act appropriately if it becomes evident that a claim of exemption is
being abused.
Clause 3 - Political parties, independent members of parliament, candidates
etc.
Clause 3 of Schedule 1A to the Bill sets out that certain types of faxes
that have been authorised by political parties, independent members of
Parliament or candidates for political office, are 'designated marketing
faxes' for the purpose of the DNCR Act. This means that such faxes may be
sent to numbers registered on the Do Not Call Register.
Political parties
Subclause 3(1) of Schedule 1A sets out the meaning of the phrase
'designated marketing faxes' in the context of faxes authorised by
registered political parties. It provides that for the purposes of the Bill
a marketing fax is a 'designated marketing fax' if:
* the sending of the fax is authorised by a registered political party;
* having regard to the content and presentational aspects of the fax, it
would be concluded that the purpose (or one of the purposes) of the
fax is to conduct fundraising for electoral or political purposes;
* that if the fax relates to goods or services, the registered political
party is the supplier or prospective supplier of the goods or
services; and
* the fax is not of a kind specified in the regulations.
The exemption would enable political parties to send faxes which have a
fundraising purpose. For example, a political party may send a fax
advertising tickets to a fundraising breakfast or other event.
Faxes relating to opinion polling are allowed. This is because they do not
fall within the definition of a 'marketing fax' as they have no commercial
element. This exemption for political parties does not apply to individuals
acting on their own volition within the party.
The term 'registered political party' is defined in section 4 of the DNCR
Act. It requires the appropriate registration process to have been
undertaken.
A regulation making power in paragraph 3(1)(d) has been included to limit
the types of faxes covered by the exemption. This power has been included
as a safeguard to ensure that this exemption could be limited further if
necessary.
Independent members of parliament etc.
Subclause 3(2) of Schedule 1A sets out the meaning of the phrase
'designated marketing fax' in the context of marketing faxes authorised by
independent members of Parliament. This means that such faxes may be sent
to numbers registered on the Do Not Call Register.
Paragraph 3(2)(a) specifies a person who is a member of:
* the Parliament of the Commonwealth;
* the Parliament of a State;
* the Legislative Assembly for the Australian Capital Territory or of
the Northern Territory or Norfolk Island; or
* a local governing body established by or under a law of a State or
Territory.
The second criterion that must be met for such a fax to be a designated
marketing fax is that, having regard to the content and presentational
aspects of the fax, it would be concluded that the purpose (or one of the
purposes) of the fax is to conduct fundraising for electoral or political
purposes (see paragraph 3(2)(b)) of Schedule 1A.
The third criterion that must be met for a designated marketing fax
authorised by an independent member of parliament is that, if the fax
relates to goods or services, the person specified in paragraph 3(2)(a) is
the supplier or prospective supplier of the goods or services.
The fourth criterion is that the fax is not of a kind specified in the
regulations.
As set out above in relation to the exemption applying to registered
political parties, the exemption would enable independent members of
Parliament to send faxes which have a fundraising purpose.
Candidates
Subclause 3(3) of Schedule 1A to the Bill sets out the meaning of the
phrase 'designated marketing fax' in the context of faxes authorised by a
candidate in certain elections. This means that such faxes may be sent to
numbers registered on the Do Not Call Register.
The first criterion that must be met for such a fax to be a designated
marketing fax is that the sending of the fax is authorised by a person who
is a candidate for an election that is specified in paragraph 3(3)(a).
Paragraph 3(3)(a) specifies elections for:
* the House of Representatives;
* the Senate;
* a house of the Parliament of a State;
* the Legislative Assembly for the Australian Capital Territory;
* the Legislative Assembly of the Northern Territory;
* the Legislative Assembly of Norfolk Island; or
* a local governing body established by or under a law of a State or
Territory.
The second criterion that must be met for such a fax to be a designated
marketing fax is that, having regard to the content and presentational
aspects of the fax, it would be concluded that the purpose (or one of the
purposes) of the fax is to conduct fundraising for electoral or political
purposes (see paragraph 3(3)(b)).
The third criterion that must be met for a designated marketing fax
authorised by a person who is a candidate for an election is that, if the
fax relates to goods or services, the person who authorised the fax is the
supplier or prospective supplier of the goods or services (see paragraph
3(3)(c)).
The fourth criterion is that the fax is not of a kind specified in the
regulations (paragraph 3(3)(d)).
The exemption would enable political candidates to send faxes which have a
fundraising purpose, for example a candidate sending a fax advertising
tickets to a fundraising event for the purpose of raising funds for their
candidature. Faxes relating to opinion polling could still be sent, as they
would have no commercial element.
This exemption does not enable candidates to promote their own business
through marketing faxes for their own benefit. It only applies where the
nature of the fax is for the purpose of fundraising for electoral or
political purposes.
A person is only covered by this exemption if they have nominated as a
candidate in a Commonwealth, State, Territory or local government election
with the relevant electoral authority. The various Commonwealth, State and
Territory electoral laws provide a nomination process whereby a person can
nominate for candidature for an election. It does not enable a person to
use this exemption simply because they have stated their intention to stand
as a candidate for an upcoming election for which nominations have not yet
been called by the relevant electoral authority.
A regulation-making power has been included to limit the exempt faxes if
necessary. This could be used if it was found that the provision was being
misused.
Clause 4 - Educational institutions
Clause 4 of Schedule 1A to the Bill provides that a marketing fax is a
'designated marketing fax' if the sending of the message is authorised by
an educational institution and certain conditions apply. An 'educational
institution' is defined in section 4 of the DNCR Act. It includes a pre-
school, primary school, high school, college, TAFE and university.
This exemption would enable an educational institution to send certain
faxes to students or past students, or members of their household. This
exemption has been provided in recognition that public educational
institutions benefit Australian society and should be able to contact their
students to inform them about the needs of the institutions and to solicit
funds to ensure their viability. A marketing fax authorised by an
educational institution will only be defined as a designated marketing fax
if:
* the recipient is the relevant account-holder who is, or has been
enrolled, as a student in that institution;
* the recipient, who is a member or former member of the household of
the relevant account-holder, is or has been, enrolled as a student in
that institution;
* if the fax relates to goods or services where the institution is the
supplier, or prospective supplier, of the goods or services; and
* the fax is not of a kind specified in the regulations.
The term 'relevant account-holder' is defined in section 4 of the DNCR Act.
It is the person, or persons, responsible for the relevant service account
for the Australian number.
To minimise the risk of this exemption being abused by entities falling
within the category of educational institutions, only certain types of
faxes are exempt. If the fax relates to goods or services, this exemption
will only apply where the institution is the supplier or prospective
supplier of the goods or services. A specific regulation-making power is
included in paragraph 4(1)(f) which can be used to limit the exemption
further if this exemption is being misused.
Subclause 4(2) relates to faxes sent where the relevant account-holder is
an employer and the sending of the fax is authorised by an educational
institution. It enables an educational institution to send faxes to a
student, former student, or member of the household, even if the student is
not the relevant account-holder, but his or her employer is the relevant
account-holder.
This provision has been included in recognition of the fact that some
organisations offer to pay for an employee's personal fax number account as
part of their salary package. In these cases the employer is the relevant
account-holder, not the employee as it is the employer who is responsible
for the account. It is common for people to have combined telephone and fax
numbers at their home for after hours work. However, in the case of faxes
sent by educational institutions, it is the employee's relationship with
the relevant educational institution that is relevant, not the employer's.
Without this specific provision, if an educational institution sent a fax
to a former student who had provided them with their fax number, if the
relevant account-holder of this number was an employer then the educational
institution would not have been covered by the exemption provided under
subclause 4(1).
Clause 5 - Regulations
Clause 5 allows the regulations to provide that a specified kind of
marketing fax is a 'designated marketing fax' for the purposes of the Act.
This regulation-making power has been included to ensure that, if there are
any unintended consequences of this Bill, regulations may be made to
include faxes which should not appropriately be covered by the Bill. The
effect of this would be that a class of fax specified in regulations would
be exempt from the prohibition on sending unsolicited marketing faxes to
numbers listed on the Register.
Clause 6 - Authorising the sending of marketing faxes
Clause 6 provides for the circumstances in which the sending of marketing
faxes will be taken to be authorised for the purposes of Schedule 1A to the
Bill.
The term 'authorise', in relation to the sending of a marketing fax, is
used in the provisions which set out the definition of a 'designated
marketing fax'.
Proposed subclause 6(1) provides that if an individual authorises the
sending of a marketing fax and does so on behalf of an organisation then
the organisation rather than the individual is taken to have authorised the
sending of the fax. An organisation is defined in section 4 of the DNCR
Act.
For example, if an employee sends a marketing fax in the course of his or
her employment then the organisation will be taken to have authorised the
sending of the fax for the purposes of Schedule 1A to the Bill. This will
not apply where a person purports to send the fax on behalf of an
organisation but goes beyond his or her actual authority. In that case, the
organisation will not be taken to have authorised the sending of the fax
for the purposes of Schedule 1A.
Proposed subclause 6(2) provides that if a marketing fax is sent by an
individual or organisation without being authorised by any other individual
or organisation, then the first-mentioned individual or organisation is
taken to have authorised the sending of the fax. The effect of this
provision is that if an individual sends a fax on his/her own behalf (and
no one else has authorised its sending) then the individual is taken to
have authorised the sending of the fax for the purposes of the DNCR Act.
Clause 7 - Extended meaning of employee and employer
The common law definition of the terms 'employee' and 'employer' are
amended by the meaning given to the terms in clause 7 of Schedule 1A. In
addition to those persons covered by the common law meaning of employee and
employer, the definition is extended to include a range of persons not
ordinarily considered to be employees or employers. In particular, clause 7
includes the following persons:
* members of the executive body of a body corporate (subclause 7(1));
* contractors (subclause 7(2));
* members of Parliament (subclauses 7(3) to 7(7));
* members of local governing bodies (subclause 7(8)); and
* office holders, such as an individual who is in the service of an
armed force, or a police force (subclause 7(9)).
The circumstances in which marketing faxes can be sent will ordinarily
depend upon whether the relevant account-holder has a certain relationship
with the intended recipient of the fax (for example, an educational
institution may contact a current student). However, this situation is
somewhat different in the case where an employer is the relevant account-
holder. Subclause 4(2) is designed to cover the circumstances where an
employee's personal account may be paid for by an employer as part of an
employment package and consequently the employer is the relevant account-
holder. In this case, it is the relationship of the employee with the
organisation sending the fax, not the relevant account-holder (i.e. the
employer) which is relevant in determining whether or not the fax falls
within the 'exempt' category for the purposes of proposed section 12B.
This extended definition has been included as it is considered possible
that certain employment-type situations, such as the ones described in this
extended meaning, could involve a person receiving the benefit of a
personal fax account paid for by the employer and should consequently be
covered.
Item 72 - At the end of clause 1 of Schedule 2 (before the note)
Item 72 of the Bill makes a consequential amendment by inserting the phrase
'or the sending of a marketing fax' at the end of clause 1 of Schedule 2
(before the note).
Item 73 - Clause 1 of Schedule 2 (at the end of the note)
Item 73 makes a consequential amendment by adding 'and section 12B
(unsolicited marketing faxes must not be sent to a number registered on the
Do Not Call Register)' at the end of the note to clause 1 of Schedule 2.
Item 77 - Clause 4 of Schedule 2
Item 77 makes consequential amendments to clause 4 of Schedule 2 by
replacing the words 'a telephone' with 'an Australian'.
Item 78 - Paragraphs 4(a) and (b) of Schedule 2
This Item omits references to 'telephone' in subclauses 4(a) and (b) of
Schedule 2.
Item 79 - Clause 4 of Schedule 2
Item 79 omits the words, 'the telephone number' and substitutes with 'the
number', in clause 4 of Schedule 2. This is a consequential amendment as a
result of the introduction of the fax marketing prohibition in the Bill.
The intention is that the amended Act covers Australian private or
domestic, emergency service and government telephone numbers and all
Australian fax numbers.
Item 80 - Subclause 5(1) of Schedule 2
Item 82 - Subclause 5(2) of Schedule 2
Item 80 makes a consequential amendment to subclause 5(1) of Schedule 2 by
replacing the words 'a telephone' with 'an Australian'. A similar change is
made by Item 82, in relation to subclause 5(2) of Schedule 2.
Item 81 - Paragraphs 5(1)(a) and (b) of Schedule 2
Item 81 makes consequential amendments to paragraphs 5(1)(a) and (b) of
Schedule 2 by removing the word 'telephone'. This is required as a result
of the new approach to defining 'account', which has been extended to cover
both Australian telephone and fax number accounts.
Item 83 - Paragraphs 5(2)(a) and (b) of Schedule 2
Item 83 makes consequential amendments to paragraphs 5(2)(a) and (b) of
Schedule 2 by removing the word 'telephone'.
Item 84 - At the end of Schedule 2
Item 84 inserts new clause 7 into Schedule 2.
Clause 7 gives the ACMA the power to make a determination or determinations
setting out the circumstances in which the consent of a business or other
organisation to receive marketing faxes will be inferred or will not be
inferred. This 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 fax numbers on the Register. The Act enables the
ACMA to make a determination applying to marketing faxes, to ensure that
the ACMA can respond to specific problems as they arise. For example,
following the commencement of the changes, if problems are identified
relating to business to business communications within a particular
industry, the ACMA would be able to make a determination relating to
communications within that industry.
The determination-making power applies to business fax numbers on the
Register. 'Business number' is defined as an Australian number other than a
number that is used or maintained exclusively or primarily for private or
domestic purposes. This definition excludes residential landline and
personal mobile phone numbers, but applies to all other telephone and fax
numbers.
The ACMA is required to consult with the Minister prior to making a
determination relating to marketing faxes. In addition to this, the ACMA is
required to release the draft determination on its website for 14 days to
allow public comments. The ACMA is required to consider any submissions
received through this process when making the draft determination. The ACMA
may also decide to place the draft determination on the website for the Do
Not Call Register.
When making minor variations to a determination that has been made under
one of the provisions, the ACMA is not required to comply with subclauses
7(3) or (4) (which require the ACMA to consult with the Minister and to
release a draft determination for public comment). Minor variations are
intended to cover issues such as correcting typographical or innocuous
errors.
Item 85 - After subclause 2(2) of Schedule 3
Schedule 3 of the DNCR Act currently sets out the provisions relating to
infringement notices, including a requirement that an infringement notice
is issued no later than 12 months from the date of the alleged breach. The
ACMA has the power to issue infringement notices in relation to contracts,
arrangements or understandings for telemarketing or fax marketing services
that do not require compliance with the Act.
Under the Act a person must not enter into a contract or arrangement or
arrive at an understanding for the making of telemarketing calls or the
sending of marketing faxes that does not require that the parties comply
with the Act.
Item 85 proposes an exception to the usual 12-month timeframe within which
an infringement notice relating to an alleged contravention of section 12
or section 12C must be issued. The reason for this amendment is that if the
ordinary 12-month period applied, it would mean that the contravention
would need to be discovered within the first few months of the term of the
contract or arrangement, and there would generally not be enough time to
investigate the matter and issue an infringement notice. Further, many
contraventions are discovered as a result of complaints by members of the
public and the ACMA may not become aware of such a contract for some time
after the contract was entered into, making it difficult to meet the
timeframes associated with the infringement notice provisions.
To overcome problems with the enforcement of the existing provision, this
provision removes the timeframe for issuing an infringement notice in
relation to contracts that do not require compliance with the Act. This
will improve the ability of the ACMA to take enforcement action in relation
to this provision.
Therefore, new clause (2A) of Schedule 3 would provide that the 12 month
limitation on issuing an infringement notices would not apply to a
contravention of subsections 12(1) or (2) or 12C(1) or (2).
The provision only applies to contracts, arrangements or understandings
that were entered into after commencement. The Attorney-General's
Department supports the removal of the 12 month timeframe in these
circumstances.
Item 86 - Subclause 4(1) of Schedule 3 (table items 1, 2, 3, 4, 5 and 6)
Item 87 - Subclause 4(2) of Schedule 3 (table items 1, 2, 3, 4, 5 and 6)
Item 86 and 87 to the Bill insert in the respective subclauses 4(1) and (2)
of Schedule 3, the references '12B(1) or (8)'. This is necessary as a
result of the new rules about sending marketing faxes as discussed above.
Division 2 - Application
Item 88 - Application-agreements for the making of telemarketing calls
Item 88 provides that the new paragraph 12(1)(b) of the DNCR Act applies
after the commencement of this Item.
Item 89 - Application-continuity of the Do Not Call Register
Item 89 provides that the amendments to section 13 of the DNCR Act would
not affect the continuity of the Do Not Call Register. This provision makes
it clear that the Register will continue to operate seamlessly.
Item 90 - Application-registration of an Australian number
An application to register on the Do Not Call Register that has been made
before the commencement of this item under section 15 of the DNCR Act
(which refers to registration) will have effect as if the registration had
been made after commencement. The application must have been pending
immediately before commencement. The registration will be subject to any
changes that have come into effect upon commencement.
Item 91 - Application-access to the Do Not Call Register
Item 91 provides that the repeal of paragraphs 11(3)(b), 19(2)(d) and
19(3), and the amendments to paragraphs 20(1)(b), 20(1)(c) and section 21
made by the Bill apply in relation to a list submitted under subsection
19(1) of the Act after the commencement of this Item.
Item 92 - Application-continuity of a nomination
Item 92 provides that the amendments to subsections 39(1) and (3) of the
DNCR Act made by this Part do not affect the continuity of a nomination in
force under that section immediately before the commencement of this Item.
Item 93 - Application-principles of agency
Item 93 provides that new subsection 39(5) which reserves the principles of
agency, applies in relation to a matter arising under the Act before or
after commencement.
Item 94 - Application-infringement notices
Item 94 provides that to the extent to which it relates to a contravention
of subsection 12(1) or (2) of the DNCR Act, subclause 2(2A) of Schedule 3
of the Act as amended by this Part applies in relation to a contravention
that occurs at or after, the commencement of this Item.
Item 94A - Transitional-reinstatement of registration of numbers
This item inserts a new transitional provision that enables the Minister,
by legislative instrument, to reinstate on the Do Not Call Register those
Australian numbers the registration of which has ceased to be in force due
to the elapse of 3 years from the date of registration, in accordance with
paragraph 17(1)(b) of the DNCR Act as in force before the commencement of
this Bill. In the event of the Minister making such a determination, this
transitional provision provides that the re-instatement of the number on
the Register will take effect when it is re-entered on the Register and
remain in force for the period specified in the instrument.
The 3 year anniversary of the commencement of the Do Not Call Register
occurs in May 2010. After this time, a substantial proportion of private
telephone numbers begin to fall off the Register due to the expiry of their
3 year registration.
It is considered that, by enabling the Minister to make a determination as
described in this item, no persons will be deprived of any rights and nor
will this provision impose any liabilities. Individuals who have their
numbers reinstated to the Register will benefit in not having to re-
register their numbers, especially those persons not aware that their
registration was only valid for 3 years. If individuals should decide they
do not wish to have their numbers retained on the Do Not Call Register,
they may cancel their registration at anytime. This proposed transitional
provision will also assist telemarketers to not contact persons who do not
wish to receive telemarketing calls but fell off the Register due to the
expiry of their registration.
Part 2 - Other Amendments
Telecommunications Act 1997
Part 2 of the Bill makes other miscellaneous amendments to the
Telecommunications Act. It will enable the fax marketing industry (defined
in Item 97) to develop codes relating to fax marketing activities.
This would enable an appropriate body that represents the fax marketing
industry to develop a code relating to fax marketing. Such a code could not
relate to matters already regulated under an industry standard developed by
the ACMA.
These amendments are proposed to reflect that, in addition to the
development of industry codes by the telecommunications, e-marketing
industry and telemarketing industry, the amendments proposed in this Bill
will enable the fax marketing industry to also develop industry codes.
Item 95 - At the end of subsection 3(2)
Item 95 amends subsection 3(2) of the Telecommunications Act, which sets
out the secondary objects of the Act. This amendment includes the promotion
of responsible practices in relation to the sending of marketing faxes in
the objects of the Act. 'Marketing fax' is defined in Item 98. It is a
slightly broader definition than the definition of 'marketing faxes' in
Item 22 of Schedule 1 of the Bill.
This provision ensures that all unsolicited marketing faxes are subject to
minimum standards that encourage best practice by the fax marketing
industry and provide a comprehensive framework to consumers that makes all
unsolicited marketing faxes subject to permitted sending times, provides
contact information for the person or organisation sending (or authorising
the sending of) the fax and other matters.
Item 96 - Section 5
Item 96 amends section 5 of the Telecommunications Act, which is the
simplified outline for the Act. Reference to 'the telemarketing industry'
(wherever occurring), is amended by substituting 'the telemarketing
industry or the fax marketing industry'.
Item 97 - Section 7
Item 97 inserts a new definition into section 7 of the Telecommunications
Act. It defines the 'fax marketing industry' as an industry that involves
carrying on a fax marketing activity. A 'fax marketing activity' is defined
in proposed new section 109C of the Telecommunications Act (to be inserted
by Item 100 of the Bill).
Item 98 - Section 7
Item 98 inserts a new definition into section 7 of the Telecommunications
Act. It defines a 'marketing fax' for the purpose of this Bill. The
definition of marketing fax includes a marketing fax within the meaning of
the DNCR Act that is sent to an Australian number, but is wider than that.
It also covers a fax that is sent to an Australian number, where, having
regard to its content and its presentational aspect, it would be concluded
that the purpose, or one of the purposes, of the fax is to conduct opinion
polling, or to carry out standard questionnaire based research.
The broader definition is inserted because it is appropriate for certain
types of faxes which are not considered to have a commercial-type purpose
(one of the necessary elements of a marketing fax for the purposes of the
DNCR Act), such as conducting opinion polling, to be subject to certain
minimum conduct standards, notwithstanding that the sending of such faxes
is not restricted under the Bill.
Item 99 - Section 106
Item 99 amends section 106 of the Telecommunications Act to include
references to the 'fax marketing industry'. It is proposed that the term
'fax marketing industry' is defined in section 7 of the Telecommunications
Act (see Item 97 above).
Item 100 - After section 109B
Proposed new section 109C - Fax marketing activity
Item 100 inserts a proposed new section 109C into the Telecommunications
Act which defines a 'fax marketing activity' for the purposes of Part 6.
A fax marketing activity is essentially an activity that consists of
sending marketing faxes to market, advertise or promote on behalf of
others. Under subsection 109C(2), a fax marketing activity is defined as an
activity that is carried on by a person (the first person) under a contract
or arrangement (other than a contract of employment); and consists of:
* using marketing faxes to market, advertise or promote goods or
services,
- where the first person is not the supplier or prospective supplier
of the goods or services; or
- where the first person is not the supplier or prospective supplier
of the goods or services;
* using marketing faxes to market, advertise or promote land or
interests in land (or a supplier or prospective supplier of land),
- where the first person is not the supplier or prospective supplier
of the land or interests in land; or
- where the first person is not the supplier or prospective supplier
of the land or interests in land;
* using marketing faxes to market, advertise or promote business
opportunities or investment opportunities, where the first person is
not the provider or prospective provider of the business opportunities
or investment opportunities; or
* using marketing faxes to advertise or promote a provider, or
prospective provider, of business opportunities or investment
opportunities, where the first person is not the provider or
prospective provider of the business opportunities or investment
opportunities.
These activities are essentially those covered by the meaning of marketing
faxes in new section 5B inserted by Item 22.
Item 101 - After section 110B
Proposed new section 110C - Sections of the fax marketing industry
Item 101 inserts a proposed new section 110C into the Telecommunications
Act, which defines 'sections of the fax marketing industry' for the
purposes of Part 6. The concept of industry sections is used in Part 6 in
relation to developing industry codes. Such sections are used so that codes
will be developed by, and applied to, relevant sections, and so that
requests for codes by the ACMA (under section 118) may be directed to
representatives of relevant industry sections. The definition of 'sections
of the fax marketing industry' ensures that it is clear for compliance and
enforcement purposes to whom a particular code or standard applies.
Subsection 110C(2) indicates that if the ACMA has not made a determination
on whether a person constitutes a particular section of the fax marketing
industry, then the whole fax marketing industry constitutes a single
section of the fax marketing industry for the purposes of Part 6 of the
Telecommunications Act.
Subsection 110C(3) allows the ACMA to determine that persons carrying on,
or proposing to carry on a specified fax marketing activity constitute a
section of the fax marketing industry for the purposes of Part 6. Such a
section must be identified by a unique name and/or number (subsection
110C(4)). The sections of the industry need not be mutually exclusive, may
be formed of two or more sections, or may be subsets of sections
(subsection 110C(6)). Subsection 110C(7) provides that subsection 110C(6)
does not limit the ACMA's options for determining sections under subsection
110C(3).
An ACMA determination made under subsection 110C(3) is a legislative
instrument for the purposes of the Legislative Instruments Act 2003. This
means that it must be registered on the Federal Register of Legislative
Instruments and is subject to Parliamentary disallowance.
Item 102 - After section 111AA
Proposed new section 111AB - Participants in a section of the fax marketing
industry
Item 102 inserts proposed new section 111AB into the Telecommunications
Act. This new provision defines a 'participant' in a section of the fax
marketing industry for the purposes of Part 6. A 'participant' is a person
who is a member of a group that constitutes a section of the fax marketing
industry. A definition of 'fax marketing industry' is inserted by Item 97
of the Bill.
This provision establishes a link between persons and industry sections and
is important for compliance and enforcement purposes.
Item 103 - After subsection 112(1B)
Item 103 inserts new subsection 112(1C) in the Telecommunications Act.
Section 112 is a statement of the Parliament's regulatory policy and
provides important guidance to the ACMA in performing its functions under
Part 6. Subsection 112(1) provides that it is the Parliament's intention
that industry codes are developed by bodies or associations that the ACMA
is satisfied represent sections of the telecommunications,
e-marketing, telemarketing industries. An industry body or association set
up to represent an industry section does not need to be incorporated to
develop a code.
Item 103 inserts a new subsection which provides a similar statement of
regulatory intent in relation to the fax marketing industry, namely that
industry codes should be developed by industry participants in the first
instance.
The terms 'fax marketing industry' and 'fax marketing activity' are defined
in Items 97 and 100 of the Bill respectively.
Item 104 - Subsection 112(2)
Item 104 makes a consequential numbering amendment to subsection 112(2), to
provide for new subsection 125B (refer Item 131 of the Bill).
Item 105 - Subsection 112(2)
Item 105 makes a consequential amendment to subsection 112(2) of the
Telecommunications Act by inserting a reference to 'fax marketing
industry'.
Subsection 112(2) provides that the Parliament intends that the ACMA, in
exercising certain powers will act in a manner that, in the opinion of the
ACMA, will enable public interest considerations to be addressed in a way
that does not impose undue financial and administrative burdens on
participants in sections of the relevant industry.
Item 106 - After subsection 112(3C)
Item 106 inserts proposed new subsection 112(3D), which sets out the
matters that the ACMA must have regard to in determining whether public
interest considerations are being addressed in a way that does not impose
undue financial or administrative burdens on participants in sections of
the fax marketing industry. The matters that the ACMA must take into
account are:
* the number of persons who would be likely to benefit from the code or
standard concerned;
* 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.
The term 'fax marketing industry' is defined in Item 97 of the Bill.
Item 107 - Subsection 112(4)
Item 107 amends subsection 112(4) to add a reference to subsection 112(3D).
This will ensure that subsection (3D) does not, by implication, limit the
matters to which the ACMA may have regard in determining whether public
interest considerations are being addressed in a way that does not impose
undue financial and administrative burdens on participants in sections of
the fax marketing industry.
Item 108 - Subsection 113(2)
Item 108 amends subsection 113(2) of the Telecommunications Act to add a
reference to the 'fax marketing industry'.
Item 109 - Paragraph 113(3)(y)
Item 109 amends subsection 113(3)(y) of the Telecommunications Act to add a
reference to the 'fax marketing industry'. The 'fax marketing industry' is
defined in Item 97 of the Bill.
Item 110 - At the end subsection 113(3)
Subsection 113(3) gives examples of the matters that industry codes and
industry standards may deal with. Item 110 adds to this list to provide
that industry codes and standards may also deal with:
* record keeping practices to be followed in relation to marketing faxes
sent or attempted to be sent; and
* action to be taken to limit the total number of marketing faxes sent
or attempted to be sent, by a particular participant in a section of
the fax marketing industry, during a particular period to a particular
Australian number.
Codes and standards need not be limited to the matters listed.
Item 111 - Paragraph 117(1)(a)
Item 111 amends paragraph 117(1)(a) of the Telecommunications Act to insert
a reference to the 'fax marketing industry'. This enables a body or
association representing a section of the fax marketing industry to submit
a draft fax marketing industry code to the ACMA for registration.
Item 112 - Paragraph 117(1)(b)
Item 112 makes consequential amendments to paragraph 117(1)(b) of the
Telecommunications Act to include a reference to 'fax marketing
activities'.
Item 113 - Paragraph 117(1)(h)
Item 113 repeals paragraph 117(1)(h) and substitutes a new paragraph that
covers both 'telemarketing activities' and 'fax marketing activities'.
The provision provides that before registering an industry code that
relates to the telemarketing industry or fax marketing industry, the ACMA
need not be satisfied that the Telecommunications Industry Ombudsman (TIO)
has been consulted. This is because codes relating to the telemarketing
industry and fax marketing industry would not ordinarily relate to carriers
and carriage services providers, and the codes will not extend the types of
matters that the TIO may deal with.
Item 114 - Subparagraph 117(1)(k)(iii)
Item 114 makes consequential amendments to subparagraph 117(1)(k)(iii) of
the Telecommunications Act to include a reference to the 'fax marketing
industry'.
The effect of section 117 is discussed above. It ensures that the ACMA must
consult with the Privacy Commissioner before registering a Code which deals
with certain privacy matters.
Item 115 - Subsection 118(1)
Item 115 amends subsection 118(1) of the Telecommunications Act to include
references to the 'fax marketing industry'. Section 118 provides a formal
trigger for the ACMA to request the development of an industry code. The
failure to develop a code which has been requested justifies the ACMA
developing an industry standard (see section 123).
Item 116 - Paragraph 118(1)(a)
Item 116 makes a consequential amendment to paragraph 118(1)(a) of the
Telecommunications Act to include a reference to 'fax marketing
activities'.
Item 117 - Subsection 118(3)
Item 117 makes a consequential amendment to subsection 118(3) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'. This amendment means that the ACMA is not permitted to make a
request under section 118 for an industry code to be developed by the
telemarketing industry or the fax marketing industry unless it is satisfied
that the development of the code is necessary or convenient to provide
appropriate community safeguards or otherwise deal with the performance or
conduct of participants in that industry section, and it is unlikely that
an industry code would be developed within a reasonable period without such
a request.
Item 118 - Paragraph 118(4A)(c)
Item 118 makes a consequential amendment to paragraph 118(4A)(c) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'. This amendment means that the ACMA must consult the Privacy
Commissioner before making a request under section 118 for an industry code
to be developed by the fax marketing industry where the code could deal
with certain privacy matters.
Item 119 - Subsection 119(1)
Item 119 amends section 119(1) of the Telecommunications Act (and the
accompanying note) to include references to the 'fax marketing industry'.
Section 119 provides that if the ACMA is satisfied that there is no body or
association in existence that represents a particular industry section, it
may publish a notice in the Gazette to the effect that if such a body were
to come into existence, the ACMA would be likely to request it to develop a
code under section 118 about the matters in the notice. The notice must set
a period of at least 60 days for the section to develop a representative
body.
Item 120 - Paragraph 119(1)(b)
Item 120 makes a consequential amendment to paragraph 119(1)(b) of the
Telecommunications Act to include a reference to 'fax marketing
activities'.
Item 121 - Paragraph 121(1)(a)
Item 121 makes a consequential amendment to paragraph 121(1)(a) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'.
Item 122 - Subsection 122(1)
Item 122 makes a consequential amendment to subsection 122 of the
Telecommunications Act to include a reference to the 'fax marketing
industry'.
Item 123 - Subparagraph 123(1)(a)(i)
Item 123 makes a consequential amendment to subparagraph 123(1)(a)(i) of
the Telecommunications Act to include a reference to the 'fax marketing
industry'.
Item 124 - Subparagraph 123(1)(a)(ii)
Item 124 makes a consequential amendment to subparagraph 123(1)(a)(ii) of
the Telecommunications Act to include a reference to 'fax marketing
activities'.
Item 125 - Paragraph 124(1)(a)
Item 125 makes a consequential amendment to paragraph 124(1)(a) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'.
Item 126 - Subparagraph 124(1)(c)(ii)
Item 126 makes a consequential amendment to subparagraph 124(1)(c)(ii) of
the Telecommunications Act to include a reference to 'fax marketing
activities' and the 'fax marketing industry'.
Item 127 - Subparagraph 125(1)(a)(i)
Item 128 - Subparagraph 125(1)(a)(ii)
Items 127 and 128 make consequential amendments to subparagraphs
125(1)(a)(i) and (ii) of the Telecommunications Act to include references
to the 'fax marketing industry' and activities, as appropriate.
Items 129 and 130 - Subsection 125(7)
Items 129 and 130 make consequential amendments to subsection 125(7) of the
Telecommunications Act to include a reference to the 'fax marketing
industry' and a reference to 'fax marketing activities'.
Item 131 - After section 125A
Proposed new section 125B - ACMA must determine certain industry standards
relating to the fax marketing industry
Item 131 inserts new section 125B which provides the ACMA with the power to
make an industry standard setting out particular requirements for the fax
marketing industry. The ACMA must ensure that the standard is in place at
all times after commencement.
The standard will apply to participants in the fax marketing industry,
which is defined under new section 7 of the Telecommunications Act (which
covers marketing faxes as defined under the DNCR Act and other faxes which
have a purpose of conducting opinion polling or carrying out standard
questionnaire-based research).
The standard applies to marketing faxes that are sent to any Australian
number, including telephone numbers, and is not limited to numbers that are
listed on the Do Not Call Register. The standard will set out requirements
for the fax marketing industry relating to a range of activities, such as:
* restricting the hours or days during which marketing faxes may be sent
or attempted to any Australian number. This will enable the ACMA to
set out times and days during which it will be prohibited to send or
attempt to send a marketing fax.
* requiring that a marketing fax sent to an Australian number must
contain specified information about the person who authorised the
message. This will enable the ACMA to set out certain information
about the person who authorised the marketing fax to be sent that must
be included in the marketing fax.
* restricting the total number of marketing faxes sent, or attempted to
be sent, by the relevant participant during a particular period to a
particular Australian number. This will enable the ACMA to restrict
marketing faxes from being sent or attempted to be sent to the same
number by a fax marketer within a defined period. It will prevent
recipients from being inundated with marketing faxes.
* requiring that marketing faxes contain information about how the
recipient can unsubscribe from further marketing faxes from the person
that authorised it. This will enable the ACMA to include requirements
for marketing faxes to specify how a person can unsubscribe from
further faxes.
Item 132 - Subsection 128(1)
Item 132 makes a consequential amendment to subsection 128(1) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'.
Item 133 - Subsection 129(1)
Item 133 makes a consequential amendment to subsection 129(1) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'.
Item 134 - Subsection 130(1)
Item 134 makes a consequential amendment to subsection 130(1) of the
Telecommunications Act to include a reference to the 'fax marketing
industry'. Section 130 provides that the ACMA may vary an industry standard
if it is satisfied that it is necessary or convenient to do so to provide
appropriate community safeguards or otherwise adequately regulate
participants.
Item 135 - Paragraphs 130(1)(a) and (b)
Item 135 makes consequential amendments to paragraphs 130(1)(a) and (b) of
the Telecommunications Act to include a reference to 'fax marketing
activities'.
Item 136 - Subsection 133(1A)
Item 137 - Section 135A
Items 136 and 137 make consequential amendments to sections 133(1A) and
135A to include a reference to new section 125B.
Item 138 - Paragraphs 139(1)(a) and (b)
Item 138 makes consequential amendments to paragraphs 139(1)(a) and (b) of
the Telecommunications Act to include a reference to 'fax marketing
activities'.
Item 139 - At the end of section 509
Item 139 inserts a new subsection 509(7). This subsection is intended to
allow a person to make a complaint to the ACMA about a possible
contravention of the DNCR Act or regulations under that Act, where that
person does not have sufficient information to identify the person who
sent, or attempted to send, the fax, or the person who caused the fax to be
sent or attempted to be sent. For example, this would enable a person to
make a complaint about the receipt of unsolicited faxes to a telephone
number. In such cases the ACMA must take reasonable steps to assist the
person to identify the person who sent the fax.
Item 140 - After paragraph 515A(1)(b)
Section 515A enables the ACMA to transfer certain matters to the Privacy
Commissioner if the ACMA forms the opinion that the complaint could have
been made to the Privacy Commissioner under section 36 of the Privacy Act
1988 and could be more conveniently or effectively dealt with by the
Commissioner.
Item 140 is a consequential amendment to include complaints relating to the
following contraventions under section 515A:
* a code registered under Part 6, where the code applies to participants
in a section of the fax marketing industry and deals with one or more
matters relating to the fax marketing activities of those
participants; and
* section 128 in relation to an industry standard, where the standard
applies to participants in a section of the fax marketing industry and
deals with one or more matters relating to the fax marketing
activities of those participants.
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