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2016-2017-2018-2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
TELECOMMUNICATIONS LEGISLATION AMENDMENT (UNSOLICITED
COMMUNICATIONS) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Griff)
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(UNSOLICITED COMMUNICATIONS) BILL 2019
OUTLINE
The Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019
(the Bill) proposes to amend the Do Not Call Register Act 2006 (DNCR Act), the Spam Act
2003 (Spam Act), the Commonwealth Electoral Act 1918 (Electoral Act) and the
Telecommunications Act 1997.
The purpose of the Bill is to provide consumers with more control over the receiving of
unsolicited electronic and telephone communication from political parties and registered
charities by addressing exemptions to laws that otherwise prohibit or limit telemarketing and
spam communication.
In summary, the Bill amends:
- the Spam Act to require political parties to provide an unsubscribe function for all
unsolicited electronic communication, including SMS, containing electoral content
that aims to influence the way electors vote in a federal election.
- the Electoral Act to ensure actors used for the purposes of a political telephone
campaign are identified as such, and at the beginning of the voice call.
- the DNCR Act to allow consumers who register on the Do Not Call Register (the
Register) to opt out of receiving phone calls from a charity, by specifying to
Australian Communications and Media Authority (ACMA) or its contracted service
provider that their number is not a charity-contactable number. This removes the
existing blanket exemption for registered charities which allows them to make
designated telemarketing calls to consumers registered on the Do Not Call Register.
Background to measures in the Bill
The measures in the Bill stem from concerns raised by consumers and consumer advocacy
groups in relation to the volume, frequency or desirability of unsolicited marketing
communications, in particular from registered charities and political parties which are
currently not subject to the restrictions imposed through the DNCR Act and Spam Act.
The concerns of consumers relate to not only the intrusiveness of unsolicited communication,
but also the use of personal data without express consent, and the lack of a remedy to stop or
avoid this type of unsolicited communication.
With regards to electoral communication, the measures in the bill seek to strike a balance
between the rights of consumers to act on their choices and the freedom of political parties,
independents and candidates to communicate with voters.
The Spam Act prohibits unsolicited commercial electronic messages, broadly defined under
section 5 of the Act as messages sent via email, instant messaging, SMS and MMS. However,
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the Act provides an exemption for designated commercial electronic messages. These are
defined in Schedule 1 of the Spam Act as electronic messages sent by government bodies,
political parties, charities and educational institutions. Schedule 1 also outlines the types of
factual content that must be included in these messages.
Unlike other commercial messages sent electronically, designated commercial electronic
messages are not required to include a functional unsubscribe facility.
This means that there is no avenue for voters to avoid unwanted unsolicited texts from
political parties, independents and candidates, and this has prompted hundreds of complaints
to ACMA about unsolicited SMS, particularly before and during elections, including in the
months leading up to the 2019 election. However, ACMA is largely powerless to act on these
complaints.
The bill would require all electronic messages containing electoral matter, as defined in
section 4AA of the Electoral Act, to contain an unsubscribe facility. This is regardless of
whether the communication is for a commercial purpose as defined in the Spam Act.
Voters may view unsolicited texts from a political party or candidate as an invasion of
privacy, spam, or generally unwelcome. Providing for an unsubscribe function would give
voters some control over unsolicited and unwanted electronic communication, and may assist
ACMA, without interfering with the implied freedom of political communication protected
by the Constitution.
This Bill will also require actors in voice calls featuring electoral material to be identified, in
order to make it clear to those listening that the actors are performing a part (for instance,
posing as a nurse, teacher, small business owner, etcetera) and are not to be mistaken for
'real' people.
This complements reforms to the Electoral Act which require that the identity of the person
or entity authorising any electoral communication to be disclosed, and that (as outlined in the
Commonwealth Electoral (Authorisation of Voter Communication) Determination 2018) this
disclosure must occur at the beginning of the telephone call.
The Bill also seeks to give consumers some control over unsolicited and unwanted calls from
registered charities. Currently, Australian numbers registered on the Do Not Call Register
may receive telemarketing calls from registered charities, among others, and consumers have
little recourse should they wish to "opt out" of these.
The DNCR Act established a Do Not Call Register and prohibits a telemarketing call or
marketing facsimile to an Australian number that is registered on the Register. Consumers
may 'opt out' of receiving unsolicited direct marketing material from commercial entities by
registering their number on the Register.
However, telephone calls relating to goods and services made by a government body,
registered charity, political party, candidate, Member of Parliament or an educational
institution are designated telemarketing calls. These are exempt from the operation of the
DNCR Act, allowing the organisation or their authorised representative to contact numbers
registered on the Register.
A statutory review of the Register undertaken in 2010 stated one-third of the 100 million
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telemarketing calls made by charities each year are cold calls. The review did not recommend
changing the blanket exemption for charities but noted many respondents did not support it.
According to ACMA, about 3.6% of complaints it received in 2015-16 and 2016-17 about
telemarketing calls related to those made by or on behalf of charities.
In addition, a survey it published in 2017, Telemarketing calls in Australia: Consumer
experience research, found cold calls from charities were the most common type of
telemarketing call received on landlines (72% of respondents) and that almost half of those
surveyed found telemarketing calls from charities to be a problem.
Consumer advocate CHOICE conducted a survey on unsolicited calls in 2016. The resulting
report, Who's on the Line, found charities to be the main source of unwanted calls. It reported
that about 25% of respondents received calls from a charity to their landline at least weekly,
and 20% received them to their mobile. About 5% reported receiving daily calls. According
to the published case studies, some people received these calls despite making repeated
requests to have their names removed from the organisation's contact list.
The survey also found 74% of people thought charities should not be allowed to call numbers
on the Register.
The Bill seeks to provide consumers on the Register, who might otherwise find it difficult to
terminate a phone call with a charity or withstand requests for donations, to avoid this
discomforting, intrusive or stressful situation by specifying that their registered number is not
a charity-contactable number.
By requiring consumers on the Register to take action to 'opt out' of receiving telemarketing
calls from charities - as opposed to making them 'opt in' to receiving calls - it is expected
that the fundraising activities of charities will not be unduly impacted by the amendment.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill are not expected to have any direct financial impact on
Commonwealth revenue or expenditure.
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[ABBREVIATIONS]
Bill Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
ACMA Australian Communications and Media Authority
DNCR Act Do Not Call Register Act 2006
Electoral Act Commonwealth Electoral Act 1918
Register Do Not Call Register
Spam Act Spam Act 2003
Telecommunications Act Telecommunications Act 1997
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NOTES ON CLAUSES
Clause 1 - Short Title
This bill is to be cited as the Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019.
Clause 2 - Commencement
Clause 2 provides for the commencement of the provision in this Act.
The table clause 2 specifies when the Bill's provisions will commence. The whole Act is to
commence the day after the Act receives the Royal Assent.
Clause 3 - Schedules
Clause 3 provides that legislation that is specified in a Schedule to the Bill is amended or
repealed as set out in the applicable items in that Schedule, and any other item in a schedule
has effect according to its terms.
There is one Schedule to the Bill.
Schedule 1--Amendments
Schedule 1 contains amendments to the Do Not Call Register Act 2006 (Cth), the Spam Act
2003 (Cth), the Commonwealth Electoral Act 1918 and the Telecommunications Act 1997
(Cth).
Commonwealth Electoral Act 1918
Item 1 - Subsection 321D(5)
This item requires voice calls (as defined in the DNCR Act) communicating an electoral
matter to a person must identify the use of any actors. This ensures actors used for the
purposes of a political telephone campaign are clearly identified as such, and that this occurs
at the outset of the call, as outlined in the Commonwealth Electoral (Authorisation of Voter
Communication) Determination 2018.
Item 2 - Application provision
This specifies that the amendments in item 1 apply to voice calls made after commencement
of the item.
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Do Not Call Register Act 2006
Item 3 - Section 4
This provides for the definition of a charity-contactable number, as described at clause 22A
of the Bill.
Item 4 - After subsection 11(3)
This item inserts new subsection 3A. This provides the circumstances under which a call
authorised by a registered charity is a designated marketing call and may be made to a
number on the Register. Those circumstances include that the number was on a list submitted
to ACMA or its contracted service provider, as described at amendment 22B, within the
preceding 30 days and it was determined that the number is a charity-contactable number.
Item 5 - Subsection 11(6)
This item provides that a person, as defined in the DNCR Act, who wishes to rely on the
exemptions outlined in new subsection 3A bears an evidential burden in relation to that
matter.
Item 6 - After subsection 12B(3)
This item inserts new subsection 4. This provides that a fax authorised by a registered charity
is a designated marketing fax and may be sent to a number on the Register, if the number was
on a list submitted to ACMA or its contracted service provider, as described at new section
22B, within the preceding 30 days and it was determined that the fax number is a charity-
contactable number.
Item 7 - Subsection 12B(7)
This item provides that a person, as defined in the DNCR Act, who wishes to rely on the
exemptions outlined in new subsection 4 bears an evidential burden in relation to that matter.
Item 8 - At the end of Part 3
This item inserts new section 22A, which provides that an Australian number registered on
the Register is a charity-contactable number, and thus is a designated telemarketing call for
the purposes of the DNCR Act, unless the account-holder makes a request to ACMA or its
contracted service provider specifying that the number is not a charity-contactable number,
and thus may not be contacted by or on the authority of a registered charity.
This amendment also specifies that if the number is not yet registered on the Register, the
account holder may make the request at the time of registration or at any time after that, and
that ACMA or its contracted service provider must act on this as soon as reasonably practical
after receiving the request.
This item also inserts proposed new section 22B, which provides that a person authorised by
a registered charity (access-seeker) may submit a list of Australian numbers to ACMA or its
contracted service provider in order to identify which of those numbers are charity-
contactable numbers.
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This amendment outlines ACMA's obligations in identifying charity-contactable numbers
on the Register. It requires ACMA or its contracted service provider to check the numbers on
the access-seeker's list and, depending on what information is requested, inform the access-
seeker which numbers are (or are not, as the case may be) charity-contactable numbers and,
if required, return the access-seeker's list having deleted the non charity-contactable
numbers.
These obligations are almost identical to those required to identify numbers registered on the
Register under section 19 of the DNCR Act. Section 19 provides for access to the Register
for unsolicited telemarketing calls and marketing faxes which are not designated
telemarketing calls and designated marketing faxes. Section 19 also requires the access-
seeker to pay a fee, however it is not intended that a registered charity or a person acting on
behalf of a registered charity (the access-seeker for the purposes of section 22B) will be
required to pay a fee in order to comply with amendments in the Bill.
Once a number on the Register is entered as not a charity-contactable number, proposed new
section 22C allows for this to be reversed. The account-holder may request to ACMA or its
contracted service provider that the entry in the Register be changed to specify that the
number is a charity-contactable number, and hence can be contacted on the authority of a
registered charity for the purposes of a telemarketing call.
Items 9 and 10
These items omit charities from the heading of clause 2 of Schedule 1, and from 2(a)(ii) of
the clause, with the effect that a telemarketing call from a registered charity is no longer a
designated telemarketing call in the absence of the additional obligations imposed by the Bill.
Item 11 - After clause 2 of Schedule 1
This replaces clause 2 of Schedule 1 with new clause 2A which specifies that a telemarketing
call made on the authority of a registered charity is only a designated telemarketing call if it
is made to a charity-contactable number and otherwise complies with Schedule 1.
Items 12 and 13
These items omit charities from the heading of clause 2 of Schedule 1A, and from 2(a)(ii) of
the clause, with the effect that marketing faxes from registered charities are no longer
designated marketing faxes in the absence of the additional obligations imposed by the Bill.
Item 14 - After clause 2 of Schedule 1
This replaces clause 2 of Schedule 1A with new clause 2A which specifies that a marketing
fax sent on the authority of a registered charity is only a designated marketing fax if it is
made to a charity-contactable number and otherwise complies with Schedule 1A.
Item 15 - Application provision
Sub-items 15 (1) and (2) specify that the amendments to the DNCR Act are not retrospective.
They apply to telemarketing calls made, or marketing faxes sent, after commencement of the
Schedule, and to Australian numbers entered on the Register on or after commencement.
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Spam Act 2003
Item 16 - Section 3
This change to the Act's simplified outline reflects the expansion of the Act to cover electoral
matter, not just commercial electronic messages, as outlined in the amendment at Part 2A.
Item 17 - Section 4
This clause provides for a definition of unsubscribe message, as outlined in subsection 18(9).
Item 18 - After Part 2
This item inserts proposed Part 2A, which specifies that all electronic messages (as defined in
the Spam Act) that contain electoral matter (as defined in section 4AA of the Electoral Act)
and which have an Australian link (as set out on section 7 of the Spam Act) must also contain
a functional unsubscribe facility.
The electronic messages are not required to be commercial electronic messages.
The amendment provides that an electronic message which originates from or was authorised
in Australia and which is about electoral matter must include a clear and conspicuous
statement advising the recipient that they can unsubscribe through an electronic address set
out in the message. The electronic address must be functional, and able to handle a
reasonable amount of traffic at all times of the day for at least 30 days after the message was
sent.
This amendment is consistent with section 18 of the Act requiring commercial electronic
messages to contain a functional unsubscribe function.
Item 19 - After clause 2 of Schedule 1
The intention of this clause is to omit the need for government bodies to include an
unsubscribe facility in electronic messages deemed to be a designated commercial electronic
message.
Item 20 - Clause 3 of Schedule 1 (heading)
This repeals the heading "Government bodies, political parties and charities" and replaces it
with the heading 'Political parties and charities".
Items 21 and 22
Item 21 removes the reference to a government body, which is now dealt with in proposed
new clause 2A, so that the clause relates to designated commercial electronic messages sent
by a political party or registered charity.
Item 22 stipulates additional criteria, that commercial electronic messages sent by a political
party or registered charity must include a functional unsubscribe facility in order to be
deemed a designated commercial electronic message.
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Item 23 - Application provision
This item provides that the amendments to the Spam Act made by items 16 to 23 apply to
electronic messages sent after the commencement of the amended Schedule.
Telecommunications Act 1997
Item 24 - At the end of Section 125A
This item amends section 125A of the Telecommunications Act. Section 125A of the
Telecommunications Act provides that ACMA must determine certain industry standards
relating to telemarketing industry.
The proposed amendment would require ACMA to amend, as necessary, the relevant
standards within 30 days to ensure they are in compliance with amendments to the DNCR
Act.
Item 25 - At the end of Section 125B
Item 23 amends section 125B of the Telecommunications Act which provides that ACMA
must determine certain industry standards relating to the fax marketing industry.
The proposed amendment would require ACMA to amend, as necessary, the relevant industry
standards within 30 days to ensure they are in compliance with amendments to the DNCR
Act.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill will better protect the privacy of consumers through the creation of an "opt out"
system for receiving unsolicited communications.
The bill seeks to balance the rights and needs of voters and consumers without unduly
interfering with the fundraising activities of registered charities or the electoral activities of
political parties, members and candidates. The Bill provides minor additional restrictions on
unsolicited communication from political entities and registered charities while providing an
option for action should voters and consumers choose to avoid future unsolicited
telemarketing and SMS communication.
Human rights implications
This Bill does not engage any of the applicable human rights and freedoms.
The measures contained in the Bill regulate the manner in which organisations conduct
unsolicited voice and electronic communication to individuals.
A restriction on the manner in which political parties can communicate with individuals may
engage the implied right to freedom of political communication however any infringement is
limited by section 43 of the DNCR Act which upholds the implied constitutional right.
Australia is a signatory to the International Covenant on Civil and Political Rights (the
ICCPR) and the International Covenant on Economic, Social and Cultural Rights (the
ICESCR).
Article 19(2) of the ICCPR recognises the right to freedom of expression, including the right
to receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of a person's choice.
While Article 15(a) of the ICESCR recognises the right of everyone to take part in cultural
life.
The Bill does not prohibit the provision of information but rather provides consumers with a
choice as to what information they receive, from whom they receive it and how they receive
it.
Conclusion
The Bill is compatible with human rights and freedoms as it does not engage any of the
applicable human rights, or otherwise any human rights issues.
Senator Griff
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