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2002-2003
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
SPAM (CONSEQUENTIAL
AMENDMENTS) BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by the
authority of the Minister for Communications, Information Technology and the
Arts, Senator the Hon. Richard Alston)
The Spam (Consequential Amendments) Bill 2003 (the Bill) accompanies the
Spam Bill 2003 (the Spam Bill).
The Spam Bill contains regulatory measures aimed at minimising Australia
as a source of spam and minimising spam for Australian end-users. It contains a
civil penalties regime which regulates the sending of commercial electronic
messages. This Bill makes various consequential amendments to the
Telecommunications Act 1997 (the Telecommunications Act) and the
Australian Communications Authority Act 1997 (the ACA Act) to provide for
an appropriate regulatory framework for the Australian Communications Authority
(ACA) to investigate and enforce the scheme, and to enable the development of
relevant industry codes and standards relating to commercial electronic
messages.
The main elements contained in the Bill are:
• a framework to enable industry to develop codes that relate to the sending of commercial electronic messages. Currently Part 6 of the Telecommunications Act provides for the development of codes by the telecommunications industry in relation to telecommunications activities. This is to be extended to enable the development of codes by the e-marketing industry in relation to e-marketing activities;
• an investigation role and appropriate information gathering powers
for the ACA to investigate complaints relating to breaches of the Spam Bill and
regulations made under the Bill. Parts 26 and 27 of the Telecommunications Act
give the ACA powers to gather information and investigate complaints relating to
certain breaches of the Telecommunications Act. These powers will be extended
to enable investigations of breaches of the Spam Bill and regulations;
and
• monitoring warrants to monitor compliance with the Spam Bill
and regulations, and search warrant relating to breaches of the Spam Bill and
regulations. Part 28 of the Telecommunications Act will be amended to extend
the ACA’s powers to seek a search warrant relating to Part 21 of the
Telecommunications Act to include warrants relating to breaches of the Spam Bill
and regulations. In addition it is granted powers to seek a monitoring warrant
in relation to monitoring compliance with the Spam Bill
Clauses 1 to 3 of
the Bill contain the introductory provisions.
Schedule 1 contains the
amendments to the ACA Act and the Telecommunications Act. Part 1 of Schedule 1
includes those amendments commencing on Royal Assent and Part 2 contains those
amendments commencing at the same time as Part 2 of the Spam Bill (that is 120
days after Royal Assent).
Implementation of the regulatory and legal measures proposed in this Bill
and the Spam Bill will require an additional expenditure of $0.3M in the 2003-4
financial year, $1.5M in the 2004-5 financial year, and $1.6M in the 2005-6
financial year ie. a total of $3.4M over this period which will be fully offset
from within the Communications, Information Technology and the Arts portfolio
and agreed with the Minister for Finance and Administration. To establish an
accurate baseline for the function, and to inform future proposals it is
proposed to fund the ACA role initially only until June 2006. Before October
2005 the funding and function will be reviewed. The NOIE-coordinated
educational program will be funded from the existing NOIE budget.
The following abbreviations are used in this explanatory
memorandum:
ACA: Australian Communications Authority
ACA
Act: Australian Communications Authority Act 1997
ACCC: Australian Competition and Consumer Commission
Bill: Spam (Consequential Amendments) Bill
2003
BSA: Broadcasting Services Act 1992
ISP: Internet
service provider
Minister: Minister for Communications, Information Technology and the
Arts
Spam Bill: Spam Bill 2003
TPA: Trade Practices Act
1974
Clause 1 provides that the Bill, when enacted, may be cited as the Spam
(Consequential Amendments) Act 2003.
Clause 2 sets out when each of the provisions in the Bill will commence. It
provides that clauses 1 to 3 of the Bill, and anything else not covered by the
table, will commence on the day on which the Bill receives the Royal Assent.
Clauses 1, 2 and 3 of the Bill are the introductory provisions including the
short title of the Bill, commencement provisions and the schedule application
provision.
Item 2 of the table provides that Part 1 of Schedule 1 of the
Bill also commences on the day that the Bill receives the Royal Assent. Part 1
of Schedule 1 of the Bill provides for amendments to the industry codes and
standards part of the Telecommunications Act. These provisions are to commence
on Royal Assent to enable industry to develop codes relating to commercial
electronic messages immediately.
Item 3 of the table provides that Part
2 of Schedule 1 of the Bill will commence at the same time as Part 2 of the Spam
Bill commences, that is 120 days after Royal Assent (see clause 2 of the Spam
Bill). Part 2 includes amendments to the ACA’s investigation and
information-gathering powers, provisions providing for monitoring warrants and
search and seizure warrants in relation to contraventions of the Spam Bill and
other miscellaneous amendments. These provisions appropriately commence at the
same time as the penalty provisions in the Spam Bill.
Subclause 2(2)
makes it clear that column 3 of the table contains additional information that
is not part of this Bill.
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. Schedule 1 to the
Bill amends the ACA Act, and the Telecommunications
Act.
Schedule 1 – Amendments
This Part primarily amends Part 6 of the Telecommunications Act to enable
additional industry codes and standards to be made relating to unsolicited
commercial electronic messages. Part 6 of the Telecommunications Act sets out
arrangements for industry codes and industry standards. It enables industry
sections to develop codes and register them with the ACA. The ACA has safety
net powers which may be used if self-regulation in an industry section has
serious failings.
Currently the telecommunications industry has the
ability to develop industry codes to deal with telecommunications activities.
The Australian Communications Industry Forum (ACIF) has registered the SMS
Issues Code under Part 6 of the Telecommunications Act, which relates to SMS
spam. However, the provisions providing for the development of industry codes
and standards are proposed to be extended to also enable the e-marketing
industry (defined in item 5 of Schedule 1 to the Bill) to develop codes relating
to e-marketing activities (defined in item 10 of Schedule 1 to the Bill). This
would appropriately enable a body such as the Australian Direct Marketing
Association (ADMA) to develop a code relating to commercial electronic
messages.
These amendments commence on Royal Assent to enable industry to
begin developing codes relating to commercial electronic messages as soon as
possible.
Part 1 of Schedule 1 of the Bill also makes various other
miscellaneous amendments to the Telecommunications Act, such as inserting
necessary definitions.
This item amends subsection 3(2) of the Telecommunications Act, which sets
out the secondary objects of the Act, to include the promotion of responsible
practices in relation to the sending of commercial electronic messages in the
objects of the Act. Commercial electronic message is defined in item 4 of
Schedule 1 to the Bill as having the same meaning as in the Spam Bill.
Item 2 amends section 5 of the Telecommunications Act, which is the
simplified outline for the Act. It amends the provision that states
‘bodies and associations that represent sections of the telecommunications
industry may develop industry codes’, to include a reference to sections
of the e-marketing industry being able to develop industry codes. This
amendment is consequential upon amendments being made to Part 6 of the
Telecommunications Act to enable the e-marketing industry to develop industry
codes.
The e-marketing industry is defined in item 5 of the Bill.
This item also amends the simplified outline to the Telecommunications
Act in section 5 to reflect the ability of the e-marketing industry to develop
industry codes. It amends the statement that ‘compliance with an industry
code is voluntary unless the ACA directs a particular participant in the
telecommunications industry to comply with the code, to include a reference to a
particular participant in the e-marketing industry. This amendment is
consequential upon amendments being made to Part 6 of the Telecommunications Act
to enable the e-marketing industry to develop industry codes.
Item 4 inserts a new definition into the definition section, section 7,
of the Telecommunications Act.
It defines a ‘commercial electronic
message’ to have the same meaning as in the Spam Bill. The Spam Bill
defines a commercial electronic message in proposed section 6.
For the
purposes of the Bill, whether an electronic message is a commercial electronic
message will be determined by having regard to its purpose or one of its
purposes as determined by the content of the message, the way it is presented
and the content located at any associated links, such as links to other
websites, or telephone numbers. Its purpose must be one of the purposes set out
in paragraphs 6(d) to (p) relating to commercial electronic messages. An
electronic message is defined in clause 5 of the Spam Bill. In essence an
electronic message is a message sent using an Internet carriage service or other
listed carriage service to an electronic address in connection with the relevant
account. The terms ‘Internet carriage service’ and ‘listed
carriage service’ are defined in clause 4 of the Spam Bill. Electronic
messages include e-mail messages and SMS messages.
The term
‘commercial electronic message’ is used in the definition of
e-marketing activity in proposed new section 109A and in proposed new subsection
113(3) which sets out additional examples of things that a code may deal with,
including matters relating to commercial electronic messages.
This item inserts a new definition into the definition section, section
7, of the Telecommunications Act.
It defines the ‘e-marketing
industry’ as an industry that involves carrying on an e-marketing
activity. An ‘e-marketing activity’ is defined in proposed new
section 109A of the Telecommunications Act (to be inserted by item 10 of
Schedule 1 to this Bill). It is discussed in greater detail below under this
item.
Broadly speaking the e-marketing industry is that industry that
uses commercial electronic messages to market, advertise or promote on the
behalf of others, or who use commercial electronic messages as the principal
means of marketing, advertising or promoting their own goods or
services.
This definition is relevant to the proposed amendments to Part
6 of the Telecommunications Act to enable industry codes to be developed by the
e-marketing industry.
This item inserts a new definition into the definition section, section
7, of the Telecommunications Act.
It defines an ‘Internet service
provider’ as having the same meaning as in the Broadcasting Services
Act 1992. An ‘Internet service provider’ is defined in clause 8
of Schedule 5 to the BSA as a person who supplies, or proposes to supply an
Internet carriage service to the public. An ‘Internet carriage
service’ is defined to mean a listed carriage service that enables
end-users to access the Internet (clause 3 of Schedule 5 to the BSA). A
‘listed carriage service’ has the same meaning as in the
Telecommunications Act. Section 16 of the Telecommunications Act defines a
listed carriage service as:
• a carriage service between a point in
Australia and one or more other points in Australia;
• a carriage
service between a point in Australia and one or more other points, at least one
of which is outside Australia; and
• a carriage service between a point
outside Australia and one or more other points, at least one of which is in
Australia.
Subsection 16(2) of the Telecommunications Act provides that a
‘point’ includes a mobile or potentially mobile point, whether on
land, underground, in the atmosphere, in outer space, at sea or anywhere else.
This would include, for example, points on vehicles, aircraft and
ships.
Subsection 16(3) of the Telecommunications Act makes it clear that
a point in the atmosphere, in or below the stratosphere and above Australia is
taken to be in Australia. Accordingly, a point on an aircraft above Australia
is taken to be a point in Australia for the purpose of this clause.
Subsection 16(4) of the Telecommunications Act provides that a point on
a satellite that is above the stratosphere is taken to be a point outside
Australia.
A ‘carriage service’ is defined in section 7 of
the Telecommunications Act to mean a service for carrying communications by
means of guided and/or unguided electromagnetic energy. The reference to the
carriage of communications by means of ‘guided electromagnetic
energy’ includes the carriage of communications by means of a wire, cable,
waveguide or other physical medium used, or for use, as a continuous artificial
guide for or in connection with the carrying of the communication. The
reference to the carriage of communications by means of ‘unguided
electromagnetic energy’ includes communications by means of
radiocommunications.
The term ‘Internet service provider’ is
used in proposed new paragraph 113(3)(q), which sets out examples of matters
which a code may deal with and includes procedures to be followed by ISPs and
electronic messaging service providers in dealing with unsolicited commercial
electronic messages.
Item 7 – Section 106
This item
amends section 106 of the Telecommunications Act to include references to the
‘e-marketing industry’. The term ‘e-marketing industry’
is proposed to be defined in section 7 of the Telecommunications Act (see item 5
above).
Section 106 of the Telecommunications Act provides a simplified
outline of Part 6. It currently provides that:
• bodies and
associations that represent sections of the telecommunications industry may
develop industry codes;
• industry codes may be registered by the
ACA;
• compliance with an industry code is voluntary unless the ACA
directs a particular participant in the telecommunications industry to comply
with the code;
• the ACA has a reserve power to make an industry
standard if there is no industry codes or if an industry code is deficient;
and
• compliance with industry standards is mandatory.
These
amendments are proposed to reflect that, in addition to the development of
industry codes by the telecommunications industry, the amendments proposed in
this Bill will enable the e-marketing industry to also develop industry
codes.
Item 8 – After section 108
This item inserts
new proposed sections 108A and 108B into the Telecommunications
Act.
108A – Electronic messaging service
provider
Proposed new section 108A defines an ‘electronic
messaging service provider’ for the purposes of Part 6 of the
Telecommunications Act.
An ‘electronic messaging service
provider’ is defined as a person who supplies, or proposes to supply, an
electronic messaging service to the public.
An ‘electronic
messaging service’ is defined in subclause 108A(3) as a service that
enables any or all of the following electronic messages to be sent or
received:
(a) web-based e-mail;
(b) instant messages;
(c) text
messages;
(d) messages of a kind specified in regulations.
The terms
‘electronic message’ and ‘message’ are defined to have
the same meaning as in the Spam Bill. The term ‘electronic message’
is defined in proposed section 5 of the Spam Bill. In essence it is a message
sent using an Internet carriage service or other listed carriage service to an
electronic address in connection with a particular account. The terms
‘Internet carriage service’ and ‘listed carriage
service’ are discussed above under item 6.
A message is defined
broadly to mean any information whether in the form of text, data, speech, music
or other sounds, visual images, or any other form or combination of forms (see
clause 4 of the Spam Bill).
The concept of the ‘public’ is
defined in proposed subsection 108A(2) as a service supplied to the public if,
and only if, at least one end-user of the service is outside the immediate
circle of the supplier of the service. The concept of an immediate circle is
defined in section 23 of the Telecommunications Act.
This definition is
intended to cover bodies such as web mail providers, who do not provide access
to the internet as a carriage provider or ISP, but still provide an online
communications service.
The term ‘electronic messaging service
provider’ is relevant to those sections of the telecommunications industry
who may develop industry codes. Proposed new section 108B defines the
telecommunications industry to include an industry that involves carrying on a
business as an electronic messaging service provider.
The intent in defining is the telecommunications industry as including
electronic messaging service provider is to ensure coverage in terms of industry
codes and standards of organisations who provide communication tools or
facilities that operate in conjunction with services
or facilities provided by other entities. The provider of an instant messaging
facility that operates over the Internet would be considered to be an electronic
messaging service provider, and could participate in an industry code,
notwithstanding that they may be neither an ISP nor a carriage provider.
Similarly, the provider of a web-based e-mail facility would fall into the
sector. Such groups could implement spam filtering tools or policies that would
materially affect the amount of unsolicited commercial messages in circulation,
in the same way that ISPs could utilise such tools and policies in respect of
their customer base.
108B – Telecommunications
industry
Proposed new section 108B provides that for the purposes of
Part 6, the telecommunications industry includes an industry that involves
carrying on business as an electronic messaging service provider.
As
discussed above under proposed new section 108A, this is relevant to the
development of industry codes and standards.
Item 9 – At the end
of section 109
This item inserts a new paragraph 109(g). Section 109
of the Telecommunications Act sets out for the purposes of Part 6 what a
telecommunications activity is. This amendment provides that a
telecommunications activity includes an activity that consists of carrying on
business as an electronic messaging service provider.
An
‘electronic messaging service provider’ is defined above in proposed
new section 108A.
The concept of telecommunications activity is relevant
to the meaning of a section of the telecommunications industry, which in turn is
central to the concept of who may develop industry codes.
Item 10
– After section 109
This item inserts a proposed new section
109A into the Telecommunications Act which defines an ‘e-marketing
activity’ for the purposes of Part 6.
An e-marketing activity is
defined as an activity that:
(a) is carried on by a person under a contract
or arrangement (other than a contract of employment); and
(b) consists of
using commercial electronic messages:
• to market, advertise or promote
goods or services, or advertise or promote a supplier, or prospective supplier,
of goods or services, where the first person is not the supplier or prospective
supplier;
• to market, advertise or promote land or an interest in
land, or advertise or promote a supplier, or prospective supplier, of land or an
interest in land, where the first person is not the supplier or prospective
supplier;
• to market, advertise or promote a business opportunity or
investment opportunity, or advertise or promote a provider or prospective
provider, of a business opportunity or investment opportunity, where the first
person is not the provider or prospective provider.
These activities are
essentially those as covered by the meaning of commercial electronic message in
proposed section 6 of the Spam Bill.
Essentially an e-marketing activity
is an activity that consists of using commercial electronic messages to market,
advertise or promote on behalf of others.
In addition an e-marketing activity is an activity carried on by a person
if:
• the activity consists of using commercial electronic messages to
market, advertise or promote goods or services; and
• the person is the
supplier or prospective supplier of the goods or services; and
• the
activity is the sole or principal means of marketing, advertising or promoting
the goods or services.
This would apply in circumstances where a person
was marketing, advertising or promoting their own goods or services, rather than
under contract. It would not apply where the e-marketing activity was not the
main avenue through which such goods or services are promoted, therefore
avoiding the circumstance where businesses for who e-marketing may only be a
small portion of their marketing profile, being drawn into an industry category
(and related codes) which is not appropriate in the circumstances.
These are
the activities to which industry codes and industry standards under this Part
may relate.
Proposed subsection 109A(4) provides that an expression used
in this section and in proposed section 6 of the Spam Bill has the same meaning
in this section as it has in that section. Proposed section 6 of the Spam Bill
defines a commercial electronic message for the purposes of that
Bill.
Item 11 – Subsection 110(4)
This item corrects
a typographical error in the Telecommunications Act. It amends subsection
110(4) to insert the word ‘a’ so that it reads ‘the section
must be identified in the determination by a unique name and/or
number’.
Item 12 – At the end of subsection
110(2)
This item amends subsection 110(2) to include a new paragraph
110(2)(i).
Subsection 110(2) sets out that certain groups are a section
of the telecommunications industry for the purposes of Part 6. This amendment
means that electronic messaging service providers are included as a section of
the telecommunications industry, in addition to carriers and carriage service
providers, including ISPs and other set out in subsection 110(2).
An
‘electronic messaging service provider’ is defined in item 8 of
Schedule 1 to the Bill.
Bodies or associations that represent sections of
the telecommunications industry may develop industry codes. This means that
bodies or associations that represent electronic messaging service providers may
develop industry codes under this Part.
Item 13 – After section
110
This item inserts a proposed new section 110A into the
Telecommunications Act, which defines sections of the e-marketing industry for
the purposes of Part 6.
The concept of industry sections is used in Part
6 relating 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 ACA (under section 118) may be directed to representatives of
relevant sections. The definition of ‘industry sections’ is
important in ensuring that it is clear for compliance and enforcement purposes
to whom a particular code or standard applies.
Subclause 110A(2)
indicates that if the ACA had not made a determination that determines persons
to constitute a section of the e-marketing industry, then the whole e-marketing
industry or industries, constitute a single section of the e-marketing industry
for the purposes of this Part.
Subclause 110A(3) allows the ACA to
determine that persons carrying on, or proposing to carry on, a specified
e-marketing activity constitute a section of the e-marketing industry for this
Part. The section must be identified by a unique name and/or number (subclause
110A(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 (subclause
110A(6)). Subclause 110A(7) provides that subclause 110A(6) does not limit the
ACA’s options for determining sections under subclause 110A(3). An ACA
determination made under subclause 110A(3) must be published in the Government
Gazette (subclause 110A(8)).
Item 14 – After section
111
This item inserts proposed new sections 111A and 111B into the
Telecommunications Act.
111A – Participants in a section of
the e-marketing industry
Proposed new section 111A provides that a
participant in a section of the e-marketing industry is a person who is a member
of a group that constitutes a section of the e-marketing industry is a
participant in that section for the purposes of this Part. The e-marketing
industry is defined in item 5 of Schedule 1 to the Bill.
This provision
establishes a link between persons and industry sections and is important for
compliance and enforcement purposes.
111B – Unsolicited
commercial electronic messages
This item inserts a new definition.
It defines ‘unsolicited commercial electronic message’ as a
commercial electronic message that is sent without the consent of the relevant
electronic account-holder; or to a non-existent address.
Subclause
111B(2) provides that an expression used in the Spam Bill has the same meaning
in this clause as it has in that Bill. The terms ‘commercial electronic
message’ and ‘relevant electronic account-holder’ are defined
in the Spam Bill.
This term unsolicited commercial electronic messages is
relevant to the matters which may be dealt with in industry codes (see proposed
new paragraphs 113(3)(q), (r), (s) and (t)).
Item 15 – After
subsection 112(1)
This item amends section 112 of the
Telecommunications Act.
Section 112 is a statement of the
Parliament’s regulatory policy and provides important guidance to the ACA
in performing its functions under Part 6.
Subsection 112(1) provides that
it is the Parliament’s intention that industry codes be developed by
bodies or associations that the ACA is satisfied represent sections of the
telecommunications industry. This reflects the self-regulatory objective of the
code-standard regime. An industry body or association set up to represent an
industry section does not need to be incorporated to develop a code.
This item inserts a similar statement of regulatory intent in relation
to the e-marketing industry. It provides that the Parliament’s intention
is that industry codes be developed by bodies or associations that the ACA is
satisfied represent sections of the e-marketing industry. These codes are to
apply to participants in the sections of that industry in relation to their
e-marketing activities.
The terms ‘e-marketing industry’ and
‘e-marketing activity’ are defined in items 5 and 10 of Schedule 1
to the Bill.
Item 16 – At the end of subsection
112(2)
This item amends subsection 112(2) of the Telecommunications
Act to provide that it is the Parliament’s intention that the ACA exercise
specified powers in this Part in a manner that, in the opinion of the ACA,
enables public interest considerations to be addressed without imposing undue
financial or administrative burdens on telecommunications, e-marketing industry
participants or electronic messaging service providers. In forming its opinion
the factors the ACA must have regard to are dependent upon the section of the
industry.
The powers specified in subsection 112(2) are those in sections
117, 118, 119, 123, 124 and 125 of the Telecommunications Act. These are powers
to register industry codes, request codes, publish notices where no body or
association represents a section of the industry, and determine industry
standards.
Item 17 – Subsection 112(3)
This item
amends subsection 112(3). Section 112 is a statement of the Parliament’s
regulatory policy and provides important guidance to the ACA in performing its
functions under Part 6.
Subsection 112(3) sets out those matters that the
ACA 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 telecommunications
industry.
This item amends this subsection to provide that it does not
apply to electronic messaging service providers (which are included in the
telecommunications industry, see item 12). Those matters which the ACA must
have regard to in relation to the electronic messaging service providers are set
out in proposed new subsection 112(3A), to be inserted by item 18 (see
below).
Item 18 – After subsection 112(3)
This item
inserts proposed new subsections 112(3A) and (3B). These provisions relate to
those matters that the ACA 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 the section of the
telecommunications industry that consists of electronic messaging service
providers (112(3A)), and participants in sections of the e-marketing industry
(112(3B)).
The matters to be taken into account are broadly similar to
those matters to be taken into account in relation to the telecommunications
industry.
In relation to the electronic messaging service providers the
ACA must have regard to:
• the number of end-users who would likely to
benefit from the relevant code or standard;
• the extent to which those
end-users are residential or small business end-users; and
• the
legitimate business interests of electronic messaging service
providers.
In relation to the e-marketing industry the ACA must have
regard to:
• the number of persons who would likely to benefit from the
relevant code or standard;
• the extent to which those persons are
householders or small business operators; and
• the legitimate business
interests of participants in sections of the e-marketing
industry.
Item 19 – Subsection 112(4)
This item makes
a consequential amendment to subsection 112(4) of the Telecommunications Act to
provide that subsections (3), (3A) and (3B) do not, by implication limit the
matters to which the ACA 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 telecommunications
industry.
This item is consequential upon amendments proposed in item
18 which provides for what matters the ACA must have regard to in determining
whether public interest considerations are being addressed in a way that does
not impose undue financial and administrative burdens on participants in the
section of the telecommunications industry that consist of electronic messaging
service providers and sections of the e-marketing industry (see discussion
above).
Item 20 – Subsection 113(2)
This item amends
subsection 113(2) of the Telecommunications Act to add in a reference to the
e-marketing industry. The e-marketing industry is defined in item 5 of Schedule
1 to the Bill.
Subsection 113(2) gives examples of the matters that
industry codes and industry standards may address, however, the applicability of
a particular example will depend on the section of the industry concerned.
The list in subsection 113(3) consists of examples of matters for
industry codes. Many may not be applicable to particular industry sectors and
not all matters may need to be addressed in codes. Moreover, codes and
standards need not be limited to the matters identified.
Item 21
– At the end of subsection 113(3)
This item amends subsection
113(3) by inserting more examples which industry codes and industry standards
may address, to address those matters which industry codes developed by the
e-marketing industry may deal with.
Subsection 113(3) gives examples of
the matters that industry codes and industry standards may deal with. This item
adds to this list to provide that industry codes and standards may deal
with:
• procedures to be followed by Internet service providers and
electronic messaging service providers in dealing with unsolicited commercial
electronic messages (including procedures relating to the provision or use of
regularly updated software for filtering unsolicited commercial electronic
messages);
• giving customers information about the availability, use
and appropriate application of software for filtering unsolicited commercial
electronic messages;
• action to be taken to assist in the development
and evaluation of software for filtering unsolicited commercial electronic
messages;
• action to be taken in order to minimise or prevent the
sending or delivery of unsolicited commercial electronic messages, including the
configuration of servers so as to minimise or prevent the sending or delivery of
unsolicited commercial electronic messages, and the shutdown of open relay
servers;
• action to be taken to ensure responsible practices in
relation to the use of commercial electronic messages to market, advertise or
promote goods or services to individuals who are under 18 years of age;
and
• procedures to be followed in relation to the giving of consent by
relevant electronic account-holders to the sending of commercial electronic
messages.
The list in subsection 112(3) consists of examples of matters
for industry codes. Many may not be applicable to particular industry sectors
and not all matters may need to be addressed in codes. Moreover, codes and
standards need not be limited to the matters identified.
Item 22
– At the end of subsection 115(3)
Section 115 of the
Telecommunications Act provides that industry codes and standards will not have
effect to the extent that they require customer equipment or cabling or
telecommunications networks or facilities to have particular design features or
performance requirements except as specified in subsection 115(2). This
prevents industry codes and standards from being used for technical regulation
purposes.
Subsection 115(2) provides a limited exception to subsection
115(1) for technical codes or standards that relate to the accuracy of billing
of customers and the quality of the standard telephone service. This item
amends subsection 115(3) to add in an exception where the code or standard deals
with a matter referred to in paragraph 113(3)(t). This relates to action to be
taken in order to minimise or prevent the sending or delivery of unsolicited
commercial electronic messages, including the configuration of servers so as to
minimise or prevent the sending or delivery of unsolicited commercial electronic
messages, and the shutdown of open relay servers.
Item 23 –
Paragraph 117(1)(a)
This item amends paragraph 117(1)(a) of the
Telecommunications Act to insert a reference to the e-marketing industry to
enable a body or association representing a section of the telecommunications
industry or the e-marketing industry to submit a draft code, that applies to
participants of the section and deals with one or more matters relating to the
telecommunications activities or e-marketing activities of that section, to the
ACA for registration.
The ‘e-marketing’ industry is defined
in item 5 of Schedule 1 to the Bill.
Subsection 117(1) requires the ACA
to register a code if the ACA is satisfied that:
• the code provides appropriate community safeguards or deals with the matters in an appropriate manner, depending on the nature of the matters;
• the body or association has published a draft code, and invited participants in that section and members of the public to make submissions within a period of at least 30 days (subsection 117(3)) and considered any submissions;
• the TIO has been consulted about the development of the code;
• where a code relates to privacy issues, the Privacy Commissioner has
been consulted about the development of the code; and
• the ACCC does
not object to the code.
The public comment requirements are additional to
any opportunities the industry may provide for the involvement of the public or
consumer representatives in the code development process.
Subsection
117(4) provides that when a new code is registered under this Part and it is
expressed to replace another industry code, the other code ceases to be
registered.
A decision to refuse to register a code is subject to merits
review under Part 29 of the Telecommunications Act (see Schedule
4).
Item 24 – Paragraph 117(1)(b)
This item makes
consequential amendments to paragraph 117(1)(b) of the Telecommunications Act to
include a reference to the e-marketing activities. The effect of section 117 is
discussed above under item 23.
The term ‘e-marketing
activity’ is defined in item 10 of Schedule 1 to the Bill.
Item
25 – Subparagraph 117(1)(k)(iii)
This item makes consequential
amendments to subparagraph 117(1)(k)(iii) of the Telecommunications Act to
include a reference to the e-marketing industry. The effect of section 117 is
discussed above under item 23.
The term ‘e-marketing
industry’ is defined in item 5 of Schedule 1 to the Bill.
Item
26 – Section 118
This item amends section 118 of the
Telecommunications Act to include references to the e-marketing industry as well
as the telecommunications industry.
Section 118 performs the function of
being a formal trigger for the development of an industry code. The failure to
develop a code which has been requested provides a ground for the ACA to develop
an industry standard (see section 123). That provision has the effect of
preventing the ACA developing an industry standard before the industry has an
opportunity to develop a code.
This section provides that if the ACA is
satisfied that a body or association represents a particular section of the
telecommunications industry or e-marketing industry, it may request them to
develop a code that would apply to participants of the section and deals with
one or more specified matters. The ACA must specify a period of at least 120
days for a code to be developed and a copy be given to it.
The ACA is
not permitted to make a request under this section 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.
The
ACA may vary the request by extending the period (subsection 118(5)) and may
specify indicative targets for progress in developing the code. The targets are
binding and may be used to guide the timing of the development process
(subparagraph 123(1)(b)(ii)).
Item 27 – Paragraph
118(1)(a)
This item makes a consequential amendment to paragraph
118(1)(a) of the Telecommunications Act to include a reference to the
e-marketing activities, as well as telecommunications activities. The substance
of section 118 is discussed above under item 26.
The term
‘e-marketing activity’ is defined in item 10 of Schedule 1 to the
Bill.
Item 28 – Subsection 119(1)
This item amends
section 119 of the Telecommunications Act to include references to the
e-marketing industry, as well as the telecommunications industry.
Section
119 provides that if the ACA 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 ACA 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.
This section
supports section 118 by encouraging the formation of necessary industry bodies
or associations to support the development and implementation of industry codes.
If no such body or association is formed within the period set out in the
notice, this would be a consideration in whether an industry standard would be
made under section 124. Again, the provision has the effect of preventing the
ACA developing an industry standard before industry has an opportunity to
develop a code.
Item 29 – Paragraph 119(1)(b)
This
item makes consequential amendments to paragraph 119(1)(b) of the
Telecommunications Act to include a reference to the e-marketing activities, as
well as telecommunications activities. The substance of section 119 is
discussed above under item 28.
The term ‘e-marketing
activity’ is defined in item 10 of Schedule 1 to the Bill.
Item
30 – Subparagraph 123(1)(a)(i)
This item amends subparagraph
123(1)(a)(i) of the Telecommunications Act to include references
to the e-marketing industry as well as the telecommunications
industry.
Section 123 enables the ACA to make a standard where it has
requested industry to develop a code and it has failed to do so or to have made
satisfactory progress. Industry standards provide a formal back-up to industry
self-regulation by way of codes. It is intended that industry standards not be
made unless industry self-regulation using codes fails.
The provision
works in tandem with section 118. It prevents the ACA from making a standard
before an industry section has had an appropriate opportunity to develop a
code.
This section, as amended, provides that, if the ACA requests a code
to be developed by a particular section of the telecommunications industry or
e-marketing industry under subsection 118(1) and this request has not been
complied with; indicative targets have not been met; or a code has been
developed that the ACA subsequently refused to register, then the ACA may
determine an industry standard if it is satisfied that it is necessary or
convenient to do so to provide appropriate community safeguards or otherwise
regulate adequately that industry section.
Subsection 123(3) requires the
ACA to consult the body or association to which it made the request before
determining an industry standard.
A standard is a disallowable
instrument for the purposes of the Acts Interpretation Act 1901
(subsection 123(4)).
Item 31 – Subparagraph
123(1)(a)(ii)
This item makes consequential amendments to
subparagraph 123(1)(a)(ii) of the Telecommunications Act to include a reference
to the e-marketing activities, as well as telecommunications activities. The
substance of section 123 is discussed above under item 30.
The term
‘e-marketing activity’ is defined in item 10 of Schedule 1 to the
Bill.
Item 32 – Paragraph 124(1)(a)
This item amends
paragraph 124(1)(a) of the Telecommunications Act to include a reference to the
e-marketing industry, as well as the telecommunications industry.
Section
124 of the Telecommunications Act enables the ACA to make a standard where no
industry representative body has been established. The provision works in
tandem with section 119. It prevents the ACA from making a standard before an
industry section has had an appropriate opportunity to develop a code.
If
the ACA is satisfied that a particular section of the industry is not
represented by a body or association, and has published a notice under
subsection 119(1) and no such body or association comes into existence within
the period in the notice, then the ACA may determine an industry standard if it
is satisfied that it is necessary or convenient to do so to provide appropriate
community safeguards or otherwise regulate adequately that industry section.
A standard is a disallowable instrument for the purposes of the Acts
Interpretation Act 1901 (see subsection 124(3)).
Item 33 –
Subparagraph – 124(1)(c)(ii)
This item makes consequential amendments to subparagraph 124(1)(c)(ii) of the
Telecommunications Act to include a reference to the e-marketing activities, as
well as telecommunications activities. The substance of section 124 is
discussed above under item 32.
The term ‘e-marketing
activity’ is defined in item 10 of Schedule 1 to the Bill.
Item
34 – Section 125
Item 34 amends section 125 of the
Telecommunications Act to include references to the e-marketing industry, as
well as the telecommunications industry.
Section 125 of the
Telecommunications Act enables the ACA to make a standard where a code has
clearly failed. It prevents the ACA from making a standard before a code has
proven to be ineffective.
If the ACA is satisfied that an industry code
is deficient; a written notice has been given to the developer of a code to
address these deficiencies within a period of at least 30 days; and after that
period the ACA is satisfied that it is necessary or convenient to determine a
standard, the ACA may determine an industry standard. This section only applies
to codes registered for at least 180 days to ensure that the implementation of a
code has had adequate time before its success is judged and is intended to
reinforce the preference for successful industry self-regulation.
If
the ACA is satisfied that a body or association represents that industry
section, subsection 125(4) requires the ACA to consult with the body or
association before determining an industry standard. The industry code ceases
to be registered on the day the industry standard comes into force.
A
standard is a disallowable instrument for the purposes of the Acts
Interpretation Act 1901 (subsection 125(5)).
An industry code is
deficient if, and only if, it is not operating to provide appropriate community
safeguards or not otherwise operating to regulate adequately that industry
section (subsection 125(7)).
Item 35 – Subparagraph
125(1)(a)(ii)
This item makes a consequential amendment to
subparagraph 125(1)(a)(ii) of the Telecommunications Act to include a reference
to the e-marketing activities, as well as telecommunications activities. The
substance of section 125 is discussed above under item 34.
The term
‘e-marketing activity’ is defined in item 10 of Schedule 1 to the
Bill.
Item 36 – Subsection 125(7)
This item makes a
consequential amendment to subsection 125(7) of the Telecommunications Act to
include a reference to the e-marketing activities, as well as telecommunications
activities. The substance of section 125 is discussed above under item
34.
The term ‘e-marketing activity’ is defined in item 10 of
Schedule 1 to the Bill.
Item 37 – Subsection
130(1)
This item amends subsection 130(1) of the Telecommunications
Act to include references to the e-marketing industry, as well as the
telecommunications industry.
Section 130 provides that the ACA 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.
A variation is a disallowable instrument for the purposes
of the Acts Interpretation Act 1901 (subsection 130(2)).
Item
38 – Paragraphs 130(1)(a) and (b)
This item makes a
consequential amendment to paragraphs 130(1)(a) and (b) of the
Telecommunications Act to include a reference to the e-marketing activities, as
well as telecommunications activities. The substance of section 130 is
discussed above under item 37.
The term ‘e-marketing
activity’ is defined in item 10 of Schedule 1 to the Bill.
Item
39 – At the end of Part 6
Item 39 inserts a new Division 7 into
Part 6 of the Telecommunications Act.
Division 7 –
Miscellaneous
137 – Protection from civil
proceedings
Proposed new section 137 provides a limited protection
from civil proceedings for Internet service providers or electronic messaging
service providers in respect of anything done by the provider in connection with
an industry code or standard in so far as the code or standard deals with
procedures referred to in proposed paragraph 113(3)(q) (see item 21 of Schedule
1 to the Bill). This paragraph provides as an example of matters that an
industry code or standard may deal with as procedures to be followed by Internet
service providers and electronic messaging service providers in dealing with
unsolicited commercial electronic messages (including procedures relating to the
provision to users of regularly updated software for filtering unsolicited
commercial electronic messages).
‘Internet service provider’
is defined in item 6 of Schedule 1 and ‘electronic messaging service
provider’ is defined in item 8 of Schedule 1.
138 – Implied freedom of political
communication
Proposed new section 138 provides that this Part does
not apply to the extent (if any) that it would infringe any constitutional
doctrine of implied freedom of political communication.
This amendment provides that ACA directions about compliance with
industry codes (under section 121) and formal warnings about breaches of
industry codes (under section 122) do not apply to a contravention of an
industry code if the code deals with a matter referred to in proposed paragraphs
113(3)(q) to (v) of the Telecommunications Act (see item 21) or if the code
relates to activities that consist of carrying on business as an electronic
messaging service provider, where the contravention occurred before the
commencement of Part 2 of the Spam Bill (which commences 120 days after the Spam
Bill receives Royal Assent).
These paragraphs refer to codes which relate to commercial electronic
messages and appropriately should not be subject to ACA directions about
compliance with or warnings about breaches of such codes before the rules
relating to sending commercial electronic messages in the Spam Bill come into
effect.
This amendment provides that ACA directions about compliance with
industry standards (under section 128) and formal warnings about breaches of
industry standards (under section 129) do not apply to a contravention of an
industry code if the code deals with a matter referred to in proposed paragraphs
113(3)(q) to (v) of the Telecommunications Act (see item 21) or if the code
relates to activities that consist of carrying on business as an electronic
messaging service provider, where the contravention occurred before the
commencement of Part 2 of the Spam Bill (which commences 120 days after the Spam
Bill receives Royal Assent).
These paragraphs refer to codes which relate to commercial electronic
messages and appropriately should not be subject to ACA directions about
compliance with or warnings about breaches of such industry standards before the
rules relating to sending commercial electronic messages in the Spam Bill come
into effect.
Part 2 – Amendments commencing at the same time as Part 2 of the
Spam Act 2003 commences
Part 2 of Schedule 1 to the Bill set out
those amendments in the Bill that commence at the same time as Part 2 of the
Spam Bill, that is 120 days after Royal Assent (see clause 2 of the Spam Bill).
The provisions include amendments relating to:
• monitoring warrants
and search warrants;
• investigations by the ACA;
• the
ACA’s information-gathering powers;
• miscellaneous amendments to
the Telecommunications Act and the ACA Act.
These investigative powers
are not necessary until the penalty provisions in the Spam Bill come into
operation, that is 120 days after Royal Assent (see clause 2 of the Spam
Bill).
Item 42 – After subparagraph 6(j)(ia)
This item
amends the meaning of the ACA’s telecommunications functions as defined in
section 6 of the ACA Act, to include its functions under the Spam
Bill.
Item 43 – After paragraph 8(3)(aa)
This item
makes a consequential amendment to paragraph 8(3) of the ACA Act to provide that
functions conferred on the ACA under the Spam Bill are not additional ACA
functions. This is because they come within the ‘ACA’s
telecommunications functions’, as provided for in item 42.
Item 44 – Section 7 (after paragraph (aa) of definition of
ACA’s telecommunications powers
This item makes a
consequential amendment to the definition section of the Telecommunications Act,
section 7, to include a reference to the ACA’s powers under the Spam Bill
in the definition of the ACA’s ‘telecommunications
powers’.
Item 45 – Paragraph 121(1)(a)
Item 45
amends paragraph 121(1)(a) of the Telecommunications Act to include references
to the e-marketing industry as well as the telecommunications
industry.
It is intended that compliance with industry codes be voluntary
or as determined by the industry section subject to the code. It is envisaged,
however, that where a code is effective and being complied with by a majority of
participants to whom it applies, it may be appropriate to direct non-compliant
persons to comply with the code. This may particularly apply when the person
can give no good reason for non-compliance with the code. In this context,
section 121 allows the ACA to direct the person to comply with a code. This
provides a back-up to self-regulation by allowing a person who refuses to comply
with otherwise successful self-regulatory arrangements to be directed to comply
with a code; in effect, compliance with the code becomes mandatory for that
person.
A decision to give or vary a direction, or refuse to revoke a
direction, under this section is subject to merits review under Part 29 of the
Telecommunications Act (see Schedule 4 of that Act).
Breaches of a
direction are subject to pecuniary penalties under Part 31 of the
Telecommunications Act.
Item 46 – Subsection
122(1)
This item amends subsection 122(1) of the Telecommunications
Act to include references to the e-marketing industry as well as the
telecommunications industry.
Section 122 provides that if an industry
participant contravenes an industry code, the ACA may issue a formal warning to
the industry participant. It is intended to enable the ACA to formally indicate
its concerns about a contravention of a code to a person. Such a warning may be
a precursor to making a compliance direction under section 121. However, in the
case of a serious, flagrant or recurring breach, the ACA may decide to give a
direction under section 121 without giving a prior formal
warning.
Item 47 – Subsection 128(1)
This item amends
subsection 128(1) to include references to the e-marketing industry as well as
the telecommunications industry. Section 128 provides that compliance with an
industry standard developed by the ACA is compulsory for participants in the
relevant section of the industry. Contravention of an industry standard is
subject to pecuniary penalties under Part 31.
Item 48 – Subsection 129(1)
This item amends subsection
129(1) of the Telecommunications Act to include references to the e-marketing
industry as well as the telecommunications industry.
Section 129 provides
that if an industry participant contravenes an industry standard, the ACA may
issue it with a formal warning. It is intended to enable the ACA to formally
indicate its concerns about a contravention of an industry standard, possibly as
a precursor to considering seeking a sanction under section 128, if the person
does not heed the warning. However, in the case of a serious, flagrant or
recurring breach, the ACA may decide to take action under Part 30 or 31 without
giving a prior formal warning.
Item 49 – Subsection 492(5)
(definition of this Act)
This item amends subsection 492(5) of
the Telecommunications Act to include a reference to the proposed Spam Act
2003 and regulations under that Act in the meaning of ‘this Act’
for the section.
Section 492 relates to the ACA conducting hearings under
Part 25 of the Telecommunications Act. Part 25 enables the ACA to hold public
inquiries about certain matters relating to telecommunications. As a general
rule, hearings will be required to be held in public (subsections 492(1) and
(2)). If the hearing is to be conducted in public, the ACA will be required to
give reasonable public notice of the conduct of the hearing (subsection
492(4)).
A hearing, or part of a hearing, will, however, be able to be
conducted in private if the ACA is satisfied that confidential evidence may be
given or other confidential matters may arise during the hearing, or that
hearing a matter, or part of a matter, in public would not be conducive to the
due administration of the Act (subsection 492(3)).
Currently under this
section, ‘this Act’ is defined to include not only the
Telecommunications Act, but also the Telecommunications (Consumer Protection
and Service Standards) Act 1999 and regulations under that Act. This
amendment includes the Spam Bill and regulations under that Bill in this
definition.
Item 50 – Subsection 502(5) (definition of this
Act)
This item amends subsection 502(5) of the Telecommunications
Act to include a reference to Spam Bill and regulations under that Bill in the
meaning of Act for the section.
Section 502 relates to the ACCC
conducting hearings under Part 25 of the Telecommunications Act. Part 25
enables the ACCC to hold public inquiries about certain matters relating to
telecommunications. As a general rule, hearings will be required to be held in
public (subsections 502(1) and (2)). If the hearing is to be conducted in
public, the ACCC will be required to give reasonable public notice of the
conduct of the hearing (subsection 502(4)).
A hearing, or part of a
hearing, will, however, be able to be conducted in private if the ACCC is
satisfied that confidential evidence may be given or other confidential matters
may arise during the hearing, or that hearing a matter, or part of a matter, in
public would not be conducive to the due administration of the Act (subsection
502(3)).
Currently under this section, ‘this Act’ is defined
to include not only the Telecommunications Act, but also the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and regulations under that Act. This amendment includes the Spam Bill and
regulations under that Bill in this definition.
Item 51 – After paragraph 508(aa)
This item amends
paragraph 508(aa) of the Telecommunications Act to refer to a contravention of
the Spam Bill or regulations under that Bill.
Under Part 26 of the
Telecommunications Act (which includes section 508), the ACA is able to
investigate certain matters relating to telecommunications, such as suspected
contraventions of the Act, on its own initiative or in response to written
complaints made to the ACA. The ACA is required to investigate any matter
concerning carriage services or the telecommunications industry if requested to
do so by the Minister.
Section 508 specifies those matters that the ACA
may investigate of its own volition and must investigate if so requested by the
Minister.
These matters are as follows:
• a contravention of
the Telecommunications Act;
• a contravention of an industry code
registered under proposed Part 6 of the Act;
• a failure by a
carriage service provider to comply with an obligation, or discharge a
liability, under proposed Part 9 of the Act dealing with performance standards
to be complied with by carriage service providers in relation to customer
service;
• a matter relating to the supply of, or a refusal or
failure to supply, a carriage service;
• a matter relating to the
connection of, or a refusal or failure to connect, customer
equipment;
• a matter relating to the performance of the
ACA’s telecommunications functions, or the exercise of the ACA’s
telecommunications powers.
To avoid any conflict with the operation of
the BSA, the ACA will not, however, be able to investigate a matter to the
extent to which it relates to the content of a content service.
This
proposed amendment will also enable the ACA to investigate a contravention of
the Spam Bill or regulations under that Bill.
Item 52 – After
paragraph 510(1)(aa)
This amendment enables the ACA to investigate a
contravention of the Spam Bill or regulations made under that Bill where the ACA
has reason to suspect that a person may have contravened the Act. This is in
addition to those matters referred to in 508 where:
• in the case
of a contravention of the Act, the ACA has reason to suspect that a person may
have contravened the Act;
• a complaint is made to the ACA under
section 509; or
• the ACA thinks that it is desirable to
investigate the matter.
The ACA is not able to conduct such an
investigation if it thinks that the subject matter of the investigation would
not be a matter relevant to the performance of any of its functions (subsection
510(2)).
If the Minister requests the ACA to investigate a matter of a
kind referred to in section 508 or any other matter concerning carriage services
or the telecommunications industry, the ACA is required to investigate that
matter (subsection 510(3)).
Item 53 – At the end of subsection
512(1)
This item amends subsection 512(1) of the Telecommunications
Act to limit the circumstances in which the ACA must inform the respondent about
its upcoming investigation of a complaint relating to the respondent for
possible breaches of the Spam Bill or regulations under that Bill.
Under
section 512, before the ACA begins to investigate a matter to which a complaint
relates, the ACA is required to inform the respondent identified by the
complainant that the matter is to be investigated. This item amends this
requirement to provide that the ACA will not be required to inform the
respondent if the matter relates to possible breaches of the Spam Bill or
regulations under that Bill where the ACA has reasonable grounds to believe that
informing the respondent is likely to result in the concealment, loss or
destruction of a thing connected with a breach of this Act.
The ACA is
able to conduct an investigation under Part 26 in such manner as the ACA thinks
fit (subsection 512(2)).
For the purposes of an investigation, the ACA is
empowered to obtain information from such persons, and to make such inquiries,
as it thinks fit (subsection 512(3)).
This item inserts a new subsection 512(6) into the Telecommunications Act
to provide that the ACA is not required to give the respondent an opportunity to
make submissions if the matter relates to a possible breach of the Spam Bill or
regulations under that Bill, if the ACA has reasonable grounds to believe that
doing so is likely to result in the concealment, loss or destruction of a thing
connected with a breach of the Spam Bill.
As a general rule, the ACA is
not required to give a complainant or a respondent an opportunity to appear
before the ACA in connection with an investigation. The exception to this rule
is if the ACA, as a result of an investigation, makes a finding that is adverse
to a complainant or a respondent. In such a case, the ACA will be required to
give the complainant or respondent an opportunity to make submissions about the
matter to which the investigation relates, subject to the proposed new
subsection 512(6), except if the matter relates to a possible breach of the Spam
Bill and the ACA has reasonable grounds to believe that giving the respondent
such an opportunity is likely to result in the concealment, loss or destruction
of a thing connected with the breach (subsections 512(4) and
(5)).
Evidence of a contravention of the Bill will often be highly
labile, in the sole possession of the alleged contravener, and readily
destroyed, and it is therefore important it is provided a greater degree of
protection than might otherwise be the case, from destruction by the
contravener.
This item includes a proposed new subsection 513(2) which limits the
requirement on the ACA to inform the complainant and respondent of its decision
not to investigate a complaint.
Under section 513 of the
Telecommunications, if the ACA decides not to investigate a matter to which a
complaint relates, or not to investigate it further, it is required, as soon as
practicable and in such manner as it thinks fit, to inform the complainant and
the respondent of its decision and of the reasons for it.
Proposed new
subsection 513(2) provides that the ACA is not required to inform the respondent
of the decision and the reasons for the decision if the matter relates to a
possible breach of the Spam Bill or regulations under that Bill and the ACA has
reasonable grounds to believe that to do so is likely to result in the
concealment, loss or destruction of a thing connected with a breach of the Spam
Bill.
Overseas experience indicates that individual complaints may
potentially be numerous, and identifying and establishing unlawful behaviour may
be achieved through the examination of a series of apparently unrelated
complaints over a period of time. Responding individually to every complaint and
advising those involved of its existence would both potentially risk the
destruction of valuable evidence and be prohibitively resource
intensive.
This item includes proposed new subsection 518(3) which limits the
requirement on the ACA to give a person adversely affected by a report an
opportunity to comment.
Under section 518 of the Telecommunications Act
if the publication of a matter in a report or part of a report about an
investigation would, or would be likely to, adversely affect the interests of a
person, the ACA is not permitted to publish the report or the part of the
report, as the case may be, until the ACA has given the person a reasonable
period of up to 30 days to make representations in relation to the matter
(subsections 518(1) and (2)).
Proposed new subsection 518(3) provides
that the ACA is not required give the person a reasonable period to make
representations to the ACA if the matter relates to a possible breach of the
Spam Bill and the ACA has reasonable grounds to believe that to do so is likely
to result in the concealment, loss or destruction of a thing connected with a
breach of the Spam Bill.
Item 57 – Division 1 of Part 28 (heading)
This item
amends the heading to Division 1 of Part 28 of the Telecommunications
Act.
Part 28 of the Telecommunications Act provides for the enforcement
of the Act and sets out the powers of inspectors under the Act in relation to
offences against Part 21 of the Telecommunications Act dealing with technical
regulation. The amendments to be made in this Bill extend these enforcement
powers to apply to enforcement of the Spam Bill and regulations under the
Bill.
Searches relating to breaches of the Spam Bill will be able to be
conducted under the authority of a search warrant or with the consent of the
owner or occupier concerned. Searches to monitor compliance with the Spam Bill
will be able to be conducted with the consent of the occupier concerned or under
the authority of a monitoring warrant.
An inspector will be able to
require the giving of certain information, and the production of certain
documents, relevant to compliance with the Spam Bill.
This item amends the simplified outline to Part 28 of the
Telecommunications Act to reflect that the Part will provide for search warrants
and monitoring warrants in relation to breaches of the Spam Bill, including
regulations under the Bill.
In particular, it provides that searches
relating to breaches of the Spam Bill may be conducted under the authority of a
search warrant, or with the consent of the owner or occupier concerned. This is
the same as search warrants for a breach of Part 21 of the Telecommunications
Act. It also provides that searches to monitor compliance with the Spam Act may
be conducted under the authority of a monitoring warrant or with the consent of
the occupier concerned.
Item 59 – Section 532
This item amends the simplified
outline to Part 28 of the Telecommunications Act to reflect that the Part will
provide for search warrants and monitoring warrants in relation to breaches of
the Spam Bill, including regulations under the Bill.
In particular it
provides that an inspector may require the giving of certain information and the
production of certain documents relevant to compliance with the Spam Bill and
regulations under that Bill as well as with Part 21 of the Telecommunications
Act.
This item inserts a new section 532A headed ‘References to the
Spam Act 2003’. It provides that in Part 28 of the
Telecommunications Act references to the proposed Spam Act 2003 include
regulations under the Act.
Item 61 – Division 3 of Part 28
(heading)
Division 3 of Part 28 of the Telecommunications Act
currently provides for application for, and issue of, search warrants relating
to offences against Part 21 of the Telecommunications Act. This item amends the
heading to this Division to include search warrants relating to breaches of the
Spam Bill. This is consequential upon the amendments proposed below which
extend this Division to also relate to breaches of the Spam Bill (and
regulations).
Item 62 – Subparagraph
535(1)(a)(iii)
This item amends subparagraph 535(1)(a)(iii) of the
Telecommunications Act, which in conjunction with amendments proposed in item
63, will expand the instances in which a magistrate may issue a warrant, to
include the issue of warrants in relation to a breach of the Spam Bill (which is
defined to include the regulations).
The proposed amendments to section
535 will enable a magistrate to issue a warrant that authorises an inspector
(named in the warrant) to enter land, premises, a vessel, aircraft or vehicle;
search those places; break open and search things; and examine and seize
anything that the inspector has reasonable grounds for suspecting is connected
with breach of the Spam Bill and regulations as well as an offence against Part
21 (subsection 535(1)) (see also subsections 542(2)(b), (c) and (d)). The
magistrate may only issue a warrant in response to the laying of an information
alleging that an inspector suspects on reasonable grounds that there may be, in
the places covered by the warrant, anything: relating to an offence committed or
breach; that may afford evidence relating to the commission of an offence or
breach; or that was used, or is intended for use in relation to the commission
of an offence or a breach (paragraph (1)(a)). The information must set out the
grounds for the information (paragraph (1)(b)).
Item 63 – At the
end of paragraph 535(1)(a)
This item inserts proposed new
subparagraphs 535(1)(a)(iv) to (vi) into the Telecommunications Act.
The
proposed amendments to section 535 will enable a magistrate to issue a warrant
that authorises an inspector (named in the warrant) to enter land, premises, a
vessel, aircraft or vehicle; search those places; break open and search things;
and examine and seize anything that the inspector has reasonable grounds for
suspecting is connected with an offence against Part 21, or a breach of the Spam
Bill (subsection 535(1)). The magistrate may only issue a warrant in response
to the laying of an information alleging that an inspector suspects on
reasonable grounds that there may be, in the places covered by the warrant,
anything: relating in respect of which a breach of the Spam Bill has happened;
that may afford evidence relating to a breach of the Spam Bill; or that was
used, or is intended for use in relation to breaching the Spam Bill (paragraph
(1)(a)).
Item 64 – Paragraph 537(a)
This item
amends paragraph 537(a) to refer to breaches as well as offences.
Section
537 sets out certain requirements in relation to what must be specified in a
warrant issued under section 535. Included in the matters which must be
specified, is the nature of the offence in relation to which the entry and
search are authorised.
This amendment is consequential upon amendments
proposed in item 63, which enable a magistrate to issue a warrant relating to a
breach of the Spam Bill, as well as relating to offences against Part 21 of the
Telecommunications Act. In these cases the warrant must state the nature of the
breach.
Item 65 – Division 4 of Part 28
(heading)
This item amends the heading to Division 4 of Part 28 to
refer to search and seizures relating to breaches of the Spam Bill, as well as
breaches of Part 21 of the Telecommunications Act.
Division 4 –
Searches and seizures relating to breaches of the Spam Act 2003 or Part 21 of
this Act
This Division provides for the conduct of searches and
seizures by inspectors in relation to offences against Part 21. The proposed
amendments extend the application of this Division to breaches of the Spam Bill
and regulations.
Item 66 – After section 541
This
item inserts a new section 541A into the Telecommunications Act, which is an
interpretative provision that makes it clear when a thing is to be taken to be
connected with a breach of the Spam Bill for the purposes of Part 28 of the
Telecommunications Act.
It provides that a thing is connected with a
breach of the Spam Bill if it is:
• a thing in respect of which the
breach has happened;
• a thing that may afford evidence about the
breach; or
• a thing that was used, or is intended to be used, for the
purposes of the breach.
This term ‘connected with a breach of the
Spam Act’ is relevant to determining when an inspector may undertake
searches and seizures (under section 542) and when an inspector may seize
evidence (under section 544).
This is similar to section 541 of the
Telecommunications Act, which sets out when a thing is connected with an offence
for the purposes of this Division.
Item 67 – At the end of
subsection 542(1)
This item amends section 542 of the
Telecommunications Act to provide for the conduct of searches and seizures where
an inspector suspects on reasonable grounds that there is something in the place
to be searched that is connected with a particular breach of the Spam Bill as
well as in relation to an offence against Part 21 of the Telecommunications Act
(subsection 542(1)).
The note to this item also provides that the heading
to section 542 is amended to refer simply to searches and
seizures.
Subsection 542(3) of the Telecommunications Act allows an
inspector to stop and detain a vessel, aircraft, or vehicle that the inspector
is permitted to enter under subsection 542(2).
Item 68 – At the
end of paragraph 542(2)(d)
This item amends paragraph 542(d) to allow
an inspector to examine and seize things that the inspector has reasonable
grounds for suspecting to be connected with a breach of the Spam Bill or an
offence (paragraph (d)), where the inspector has the consent of the owner, or is
authorised to do so by a warrant issued under Division 3 of Part 28.
This amendment enables an inspector to examine and seize things
suspected on reasonable grounds to be connected with a breach of the Spam Bill,
as well as an offence against Part 21 of the Telecommunications
Act.
Item 69 – After subsection 544(1)
This item
inserts a new subsection 544(1A) into the Telecommunications Act which is
similar to section 544(1).
It allows an inspector to seize a thing found
in the course of a search conducted under a warrant issued under Division 3 of
Part 28, even if that thing is not specified in the warrant, if the inspector
has reasonable grounds to believe that the thing is connected a breach of the
Spam Bill, whether or not the warrant was issued in relation to the breach
(paragraph 544(1A)(a)). This power to seize the thing may only be exercised if
the inspector has reasonable grounds to believe the seizure is necessary in
order to prevent the thing being concealed, lost, destroyed, or used in
committing, continuing or repeating a breach (paragraph 544(1A)(b)).
This amendment enables an inspector to seize things suspected on
reasonable grounds to be connected with a breach of the Spam Bill, as well as an
offence against Part 21 of the Telecommunications Act (which is provided for in
subsection 544(1)).
The note to this item provides that the heading to
section 544 is amended to take into account that the section now relates to
evidence of commission of breaches of the proposed Spam Act 2003 as well
as against Part 21 of the Telecommunications Act.
Item 70 –
Paragraph 546(1)(b)
This item replaces paragraph 546(1)(b) of the
Telecommunications Act to provide for the retention of things seized under this
Division until the related proceedings are completed or until the proceedings
for a breach of the Spam Bill are completed. This is consequential upon the
proposed amendments that enable inspectors to seize evidence of breaches of the
Spam Bill.
Section 546 allows things seized by an inspector under this
Division to be retained by the ACA for 60 days following the seizure, or at the
end of any proceedings for an offence to which the thing is connected
(subsection 546(1)).
Subsection 546(2) allows the ACA to authorise the
release of seized things to the owner of the thing, or to the person from whom
the thing was seized. Such an authorisation must be in writing. The ACA may
impose conditions on the release of the seized things including requiring the
person to pay a security equal to the value of the thing, in case it is ordered
to be forfeited by a court under section 551.
Item 71 inserts a new Division 5 of Part 28 into the Telecommunications
Act. This new Division enables searches to monitor compliance with the Spam
Bill (which is defined to include regulations under the Bill). Searches to
monitor compliance may be conducted with the consent of the occupier of the
premises or as authorised under warrant.
Monitoring warrants provide a potentially less intrusive form of warrant
regime, more suited to confirming compliance where there is an existing industry
standard or code, or where an individual undertaking is in place.
Proposed new section 547A confers powers upon an inspector to enter any
premises and to exercise any or all of the powers set out in section 547B for
the purposes of establishing whether or not the Spam Bill or regulations are
being complied with.
Subclause 547A(2) provides that an inspector may
only enter premises under this clause if: he or she has the consent of the
occupier of the premises; or where the inspector has obtained a warrant under
clause 547D to make that entry.
Subclause 547A(3) provides that, before
obtaining consent from a person to enter premises (under paragraph (2)(a)), the
inspector must inform the person that he or she may refuse consent.
Subclause 547A(4) clarifies that any consent given by a person to enable
entry to premises by the inspector must be voluntary.
Proposed section 547B describes the monitoring powers that an inspector
may exercise for the purposes of finding out whether the Spam Bill or
regulations have been complied with.
This clause sets out the general
powers inspectors may exercise under paragraph 547A(1)(b). These include the
power to: search premises; to inspect and take photographs or make sketches of
the premises or any substance or thing at the premises; to inspect any document
kept at the premises, remove or make copies of any such document; and take onto
the premises such equipment and materials as the inspector requires for the
purposes of exercising powers in relation to the premises.
Paragraph
547B(1)(f) provides that an inspector may secure a thing (for example, certain
equipment) by locking it up or guarding it, if he or she believes on reasonable
grounds that evidential material may be accessible by operating the thing at the
premises, but that expert assistance is needed to operate the thing and the
evidential material may be destroyed or otherwise interfered with if the thing
is not secured in the meantime. This is necessary to ensure that where, for
example, the equipment is more sophisticated than expected and cannot be
accessed or moved, the opportunity to obtain expert assistance and to preserve
evidential material is not lost.
Subclause 547B(2) provides that an
inspector may operate equipment at the premises to see whether the equipment, or
a disk tape or other storage device contains information that is relevant to
determining whether there has been compliance with the Spam Bill and
regulations. If the inspector finds such information, the inspector may operate
the equipment, in order to obtain the evidential material, or to copy such
evidential material to another storage device, and remove it from the premises
(subclause 547B(3)).
Subclause 547B(3) is intended to facilitate the
seizure of printouts or duplicate discs wherever possible, rather than the
original material.
The note to this section refers to section 547J which
relates to orders requiring persons to assist with access to computer data (see
discussion below).
547C – Production of identity cards
etc.
Proposed new section 547C makes it clear that an inspector
(other than an uniformed member of the police force) cannot exercise any of the
powers under this Part in relation to premises unless he or she produces his or
her identity card for the occupier of those premises.
An inspector who is
a member of the police force must produce written evidence that they are a
member of the police force.
If an inspector does not produce an identity
card or written evidence that he or she is a member of the police force, then he
or she is not authorised to enter the premises.
This clause provides that an inspector may apply to a magistrate for a
warrant in relation to premises (subclause 547D(1)).
The magistrate may
issue a warrant if satisfied, by information on oath or affirmation, it is
reasonably necessary that one or more inspectors should have access to the
premises for the purposes of finding out whether the Spam Bill and regulations
have been complied with (subclause 547D(2)).
The magistrate may require
further information from the inspector or some other person regarding the
grounds on which the warrant is being sought (subclause 547D(3)). The
magistrate must not issue the warrant unless the inspector or other person has
provided such information (if any) as requested by the magistrate.
This
provision enables a monitoring warrant to be issued for residential premises in
limited circumstances (see subclause 547D(4)). A magistrate must not issue such
a warrant unless there has been a previous court finding (which has not been
overturned on appeal) that the individual involved has previously breached the
Spam Bill, using equipment located at that residence, the person ordinarily
resides at the premises and the warrant is issued within 10 years of the court
finding, or the individual has given an enforceable undertaking (under proposed
section 38 of the Spam Bill) which is in force in respect of equipment located
at the residence and the person ordinarily resides at the premises. These
safeguards have been included to ensure that monitoring warrants for private
residences are limited.
The power to seek a monitoring warrant to enter a
residence has been included because of the nature of the spamming industry.
Because the business of sending unsolicited commercial messaging may readily
operate as a cottage industry, a number of spammers use their residence as a
base for operations. Consequently such warrants would be necessary to ensure
effective monitoring of the Spam Bill.
Subclause 547D(5) sets out that
the warrant must:
• authorise one or more inspectors to enter the
premises (using such assistance and force as is necessary and reasonable) and
exercise the monitoring powers (set out in proposed section 547B). The
inspectors need not be named in the warrant;
• state the times at which
the entry is authorised, or whether the entry is authorised to be made at any
time of the day or night;
• specify the date at which the warrant
ceases to have effect. This date must not be more than six months after the
issue of the warrant; and
• state the purpose for which the warrant is
issued.
547E – Details of warrant to be given to occupier
etc.
Proposed new section 547E provides that, if a warrant in
relation to premises is being executed, a copy of the warrant must be made
available to the occupier of the premises or another person who represents the
occupier, where the occupier or their representative are present at the
premises. The inspector responsible for the execution of the warrant must
identify himself or herself (subclause 547E(2)). Subclause 547E(3) provides
that the copy need not include the signature of the magistrate who issued the
warrant.
Proposed new section 547F provides that, before an inspector enters
premises under a warrant they must announce that they are authorised to enter
and give any person at the premises an opportunity to allow entry to the
premises, unless there are reasonable grounds to believe that immediate entry to
the premises is required to ensure the safety of a person or to prevent serious
damage to the environment, or so that the effective execution of the warrant is
not frustrated.
Proposed new section 547G provides that if damage is caused to a thing as
a result of it being operated as mentioned in section 547B and the damage
resulted from insufficient care being exercised by the inspector either in
selecting the person to operate the equipment or by the person operating it,
compensation is payable to the owner.
Compensation is payable out of
money appropriated by the Parliament (subclause 547G(5)). In determining the
amount payable, regard is to be had as to whether the occupier (or his or her
employees and agents) had provided any warning or guidance as to the operation
of the thing (subclause 547G(4)). This is to minimise compensation in cases
where there has been a deliberate programming of software to destroy or cause
damage if not accessed in a particular manner, or where the occupier failed to
mitigate damage by providing warning or guidance.
The amount payable is
to be a reasonable amount for the damage or corruption as agreed between the
owner and the user (subclause 547G(2)), or as determined by the Federal Court,
where the parties cannot agree (subclause 547G(3)).
Damage in relation to
data is defined to include damage by erasure of data or addition of other
data.
Proposed new section 547H provides that occupiers or their
representatives may choose to observe the searching of the premises providing
they do not impede the conduct of the search in any way. The right to search
does not preclude inspectors from searching two or more areas of the premises at
the same time (subclause 547H(3)).
Proposed new section 547J is based on section 3LA of the Crimes Act. The
amendments are designed to provide inspectors with the necessary powers to
detect and investigate breaches involving the use of computers by enabling
inspectors to require a person with knowledge of a relevant computer system to
assist investigators to access encrypted information, where an order has been
made.
This provision is designed to assist inspectors overcome the
particular problems in investigating computer related penalty provisions where
the large amount of data which can be stored on computer drives and disks and
the complex security measures, such as encryption and passwords, which can be
used to protect that information, present particular problems for
investigators.
Proposed section 547J would enable an inspector to apply
to a magistrate for an access order where a search warrant relating to the Spam
Bill which authorises an inspector to enter particular premises is in force
under Division 3 of Part 28 of the Telecommunications Act, or a monitoring
warrant which authorises an inspector to enter particular premises is in force
under Division 5A (subclause 547J(1) and (2)).
The magistrate may grant
an access order requiring a specified person to provide any information or
assistance that is reasonable and necessary to allow the inspector to access
data held in a computer on those premises; copy the data to a data storage
device; or convert the data into documentary form (subclause 547J(2)). For
example, a person could be required to explain how to access the system or to
provide a password to enable access.
To grant the order, the magistrate
would have to be satisfied (i) of the existence of reasonable grounds to suspect
a computer on search premises contains evidence connected with a breach of the
Spam Bill; (ii) that the subject of the order is reasonably suspected of having
been involved in the breach, or is the owner or lessee of the computer, or a
current employee of the owner or lessee of the computer; and (iii) that the
subject of the order has relevant knowledge of the functioning of the computer
or system or measures applied to protect the computer or system (subclause
547JD(3)).
The maximum penalty for non-compliance with the order would
be 6 months imprisonment (subclause 547J(4)). This is in line with the penalty
in section 3LA of the Crimes Act.
‘Data’ is defined in this
section to include information in any form, and any program or part of program.
‘Data held in a computer’ is defined inclusively to include data
held in any removable data storage device for the time being held in a computer;
and data held in a data storage device on a computer network of which the
computer forms a part. A ‘data storage device’ is defined to mean a
thing containing, or designed to contain, data for use by a computer (subclause
547J(5)).
Subclause 547J(6) provides that this section does not be
implication affect the meaning of the expression ‘data’ when used in
any other provision of this Act other Telecommunications (Consumer Protection
and Service Standards) Act 1999.
Item 72 – After subsection
549(1)
This item inserts a proposed new subsection 549(1A) into the
Telecommunications Act, which allows an inspector, who has entered a place under
Division 4 or 5A of Part 28 of the Telecommunications Act to require a person to
answer questions or produce documents (subsection 549(1)). The inspector may
make such a requirement only to the extent that is reasonably necessary to
ascertain whether the Spam Bill and regulations have been complied with. This
is similar to subsection 549(1) of the Telecommunications Act, which relates to
ascertaining whether Part 21 of the Telecommunications Act has been complied
with.
Subsection 549(4) makes it clear that an individual who is required
to comply with a requirement made under section 549 is excused from doing so if
to do so might tend to incriminate the individual or expose the individual to a
penalty.
Item 73 – Subsections 549(2) and (3)
Item 73
amends subsections 549(2) and (3) of the Telecommunications Act to make it clear
that an inspector may only exercise the power under proposed new subsection (1A)
where he or she has produced his or her inspector identity card, or is wearing
his or her uniform in the case of a member of a police force.
The
relevant person is required to comply with a request from an inspector under
subsection 549(1) or (1A) (subsection 549(3)). The maximum penalty for
non-compliance is, in the case of an individual, 20 penalty units or, in the
case of a body corporate, 100 penalty units (under s. 4AA of the Crimes Act
1914, a penalty unit is worth $110 - see also s. 4B(3) of that
Act).
Item 74 – Paragraph 550(a)
This item amends
paragraph 550(a) of the Telecommunications Act to allow an inspector to retain
possession of any document seized (under section 542, 547 or 547B) or produced
to the inspector (under subsection 549(1) or (1A)). The inspector may only
retain the document for as long as is reasonably necessary to ascertain whether
Part 21 or the Spam Bill has been complied with. The inspector is also required
to allow the person access to the document at all reasonable
times.
Item 75 – At the end of paragraph 550(b)
This
item amends paragraph 550(b) of the Telecommunications Act to allow an inspector
to retain possession of any document produced to the inspector (under subsection
549(1) or (1A)).
Item 76 - Paragraph 550(c)
This item
amends paragraph 550(c) of the Telecommunications Act to provide that an
inspector may only retain the document for as long as is reasonably necessary to
ascertain whether Part 21or the Spam Bill has been complied with. The inspector
is also required to allow the person access to the document at all reasonable
times (paragraph 550(d)).
Item 77 – Section 574A (definition of
this Act)
Item 77 amends section 574A of the
Telecommunications Act to include the Spam Bill and regulations under the Bill
in the definition of ‘this Act’ for the purposes of Part 32 of the
Telecommunications Act.
Part 32 deals with the proof of matters that
involve directors of corporations, employees and agents in connection with civil
and criminal proceedings under the Act.
The effect of this amendment is
that if a corporation has breached a civil penalty provision in the Spam Bill
and it is necessary in proceedings to establish the state of mind of the
corporation, it will be sufficient to show that:
• a director,
employee or agent of the corporation, acting within the scope of his or her
authority, engaged in that conduct; and
• the director, employee or
agent had that state of mind (subsection 575(1)).
For the purposes of
this provision, the state of mind of a person will include the person’s
knowledge, intention, opinion, belief or purpose and the person’s reasons
for the intention, opinion, belief or purpose (subsection 575(3)).
If
conduct is engaged in on behalf of a corporation by a director, employee or
agent of the corporation and the conduct is within the scope of his or her
authority, the conduct will be taken, for the purposes of a proceeding under the
Spam Bill, to have been engaged in by the corporation unless the corporation
establishes that it took reasonable precautions and exercised due diligence to
avoid the conduct (subsection 575(2)).
A reference in section 575 to a
director of a corporation will include a reference to a constituent member of a
body corporate incorporated for a public purpose by Commonwealth, State or
Territory law (subsection 575(4)).
A reference in section 575 to
‘engaging in conduct’ includes a reference to refusing to engage in
conduct (subsection 575(5)).
In addition, if in proceedings under the
Spam Bill in respect of conduct engaged in by a person other than a corporation,
it is necessary to establish the state of mind of the person, it is sufficient
to show that the conduct was engaged in by an employee or agent of the person
within the scope of his or her authority and the employee or agent had that
state of mind (subsection 576(2)).
If conduct is engaged in on behalf of
a person other than a corporation by an employee or agent of the person and the
conduct is within the scope of his or her authority, the conduct will be taken,
for the purposes of a proceeding under the Spam Bill to have been engaged in by
the person unless the person establishes that he or she took reasonable
precautions and exercised due diligence to avoid the conduct (subsection
576(3)).
For the purposes of section 576, the state of mind of a person
will include the person’s knowledge, intention, opinion, belief or purpose
and the person’s reasons for the intention, opinion, belief or purpose
(subsection 576(5)).
A reference in section 576 to ‘engaging in
conduct’ will include a reference to refusing to engage in conduct
(subsection 576(6)).
Item 78 – Section 582
Item 78
amends section 582 of the Telecommunications Act to refer to the proposed
Spam Act 2003 and regulations under that Act.
Section 582 provides
a simplified outline of Part 35. The following parts are amended to refer to
the Spam Bill and regulations:
• Partnerships are to be treated as
persons for the purposes of the Act (section 585).
• Instruments
under the Act will be able to apply, adopt or incorporate the provisions of
certain other instruments (section 589).
There are Constitutional
protections to avoid invalidity on the basis of the operation of provisions of
the Act in contravention of paragraph 51(xxxi) of the Constitution (sections 590
and 591).
Item 79 – Section 582
Item 79 similarly
makes a consequential amendment to the simplified outline to reflect that
section 589, which provides for instruments under the Act to apply, adopt or
incorporate provisions of certain other instruments also applies to instruments
under the Spam Bill and regulations under the Bill (see item 85).
Item
80 –Section 582
Item 80 similarly makes a consequential
amendment to the simplified outline to reflect that section 591, which provides
a constitutional safety net in the event that compensation is payable in the
event that the operation of ‘this Act’, results in the acquisition
of property otherwise than on just terms, is to be amended to extend to the Spam
Bill and regulations (see item 86).
Item 81 – Section
582
Item 81 makes a consequential amendment to the simplified outline
to reflect that section 592, which provides that this Act does not affect the
performance of State or Territory functions, also applies to the Spam Bill and
regulations under the Bill (see item 87).
Item 82 – Subsection
585(2)
Item 82 amends the definition of ‘this Act’ in
subsection 585(2) of the Telecommunications Act to include the proposed Spam
Act 2003 and regulations under that Act, as well as the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and regulations under that Act.
It also defines an offence to include a
breach of a civil penalty provision. A civil penalty provision includes a civil
penalty provision within the meaning of the Spam Bill.
Section 585 is
relevant to persons that are partnerships. It provides that the Spam Bill
applies to a partnership as if the partnership were a person, with the following
changes:
• obligations that would be imposed on the partnership are
imposed instead on each partner, but may be discharged by any of the
partners;
• any breach of a civil penalty provision in the Spam
Bill that would otherwise by committed by the partnership is taken to have been
breached by each partner who:
- aided or abetted, counselled or procured
the relevant act or omission; or
- was in any way knowingly concerned
in, or party to, the relevant act or omission (whether directly or indirectly
and whether by any act or omission of the partner).
Item 83 –
Subsection 586(2) (definition of this Act)
Item 83 amends the
definition of ‘this Act’ in subsection 586(2) of the
Telecommunications Act to include the proposed Spam Act 2003 and
regulations under that Act, as well as the Telecommunications (Consumer
Protection and Service Standards) Act 1999 and regulations under that
Act.
The effect of section 586 is that, for the purposes of the Spam
Bill, if a document is delivered personally to the partner of a partnership or
is left, or posted to, the partner’s last known residential or business
address, the document is taken to have been given to the
partnership.
Item 84 – Subsection 587(4) (definition of this
Act)
Item 84 amends the definition of ‘this Act’ in
subsection 587(4) of the Telecommunications Act to include the proposed Spam
Act 2003 and regulations under that Act, as well as the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and regulations under that Act.
The effect of this amendment is that for
the purposes of the Spam Bill a person may nominate an address in Australia for
service in an application made by the person under the Act or any other document
given by the person to the ACCC or the ACA. If this is done, a document may be
given to the person for the purposes of the Act by leaving it at, or by posting
it to, the nominated address for service. The document may also be delivered to
the person personally or left at, or posted to, the person’s last known
residential or business address.
Item 85 – Subsection 589(6)
(definition of this Act)
Item 85 amends the definition of
‘this Act’ in subsection 589(6) of the Telecommunications Act to
include the proposed Spam Act 2003 and regulations under that Act, as
well as the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act, and Parts XIB and XIC of the
TPA.
The effect of this amendment is that notwithstanding anything in the
Acts Interpretation Act 1901 (see in particular section 49A of that Act),
regulations or any other instrument made under the Spam Bill will be able to
make provision in relation to a matter by applying, adopting, or incorporating
(with or without modifications) provisions of any Commonwealth Act or of any
regulations or rules under a Commonwealth Act as in force at a particular time
or as in force from time to time (subsections 589(1), (5) and (6)).
In
addition, notwithstanding anything in the Acts Interpretation Act, regulations
or any other instrument made under the Act will be able to make provision in
relation to a matter by applying, adopting or incorporating (with or without
modifications) matter contained in any other instrument or writing whatever as
in force or existing at a particular time or from time to time even if the other
instrument or writing does not yet exist when the instrument under the Spam Bill
is made (subsections 589(2), (5) and (6)). This power is essential for the
ACA’s delegated legislation making, including the making of
standards.
The reference in subsection 589(2) to ‘writing’
will include any mode of representing or reproducing words, figures, drawings or
symbols in a visible form (see section 25 of the Acts Interpretation Act
1901).
A reference in subsection 589(2) to any other instrument or
writing is defined widely to include a reference to an instrument or writing
made by any person or body in Australia or elsewhere (including, for example,
the Commonwealth, a State or Territory or one of its officers or authorities or
an overseas entity) whatever its nature and whether or not it has legal force or
effect. Examples will include:
• regulations or rules under a
Commonwealth Act;
• a State Act, a Territory law or regulations or
any other instrument made under such an Act or law;
• an
international technical standard or performance indicator; or
• a
written agreement such as a contract or an arrangement or an instrument or
writing made unilaterally (subsection 589(3)).
Nothing in section 589
limits the generality of anything else in it (subsection 589(4)).
Item
86 – Subsection 591(3) (definition of this Act)
Item 86
amends the definition of ‘this Act’ in subsection 591(3) of the
Telecommunications Act to include the proposed Spam Act 2003 and
regulations under that Act, as well as the Telecommunications (Consumer
Protection and Service Standards) Act 1999 and regulations under that
Act.
The effect of this amendment is that if, apart from section 591, the
operation of the Spam Bill would result in the acquisition of property from a
person otherwise than on just terms in contravention of paragraph 51(xxxi) of
the Constitution, the Commonwealth will be liable to pay reasonable compensation
to the person in respect of the acquisition (subsections 591(1) and (3)). If
the Commonwealth and the person cannot agree on the amount of the compensation,
the person will be able to institute proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines (subsection 591(2)).
Item 87 – Subsection
592(2) (definition of this Act)
Item 87 amends the definition
of ‘this Act’ in subsection 592(2) of the Telecommunications Act to
include the proposed Spam Act 2003 and regulations under that Act, as
well as the Telecommunications (Consumer Protection and Service Standards Act
1999 and regulations under that Act. The effect of this amendments is that
section 592 provides that a power conferred by the Spam Bill must not be
exercised in such a way as to prevent the exercise of the powers, or the
performance of the functions, of government of a State, the Northern Territory,
the Australian Capital Territory or Norfolk Island.