Do Not Call Register Act 2006

An Act to establish a Do Not Call Register, and for other purposes

This Act may be cited as the Do Not Call Register Act 2006.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	30 June 2006
2. Sections 3 to 9	The day on which this Act receives the Royal Assent.	30 June 2006
3. Part 2	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.	31 May 2007 (see F2007L01114)
4. Part 3	The day on which this Act receives the Royal Assent.	30 June 2006
5. Parts 4 and 5	At the same time as the provision(s) covered by table item 3.	31 May 2007
6. Sections 39 and 40	At the same time as the provision(s) covered by table item 3.	31 May 2007
7. Section 41	The day on which this Act receives the Royal Assent.	30 June 2006
8. Sections 42 to 45	At the same time as the provision(s) covered by table item 3.	31 May 2007
9. Section 46	The day on which this Act receives the Royal Assent.	30 June 2006
10. Schedules 1, 2 and 3	At the same time as the provision(s) covered by table item 3.	31 May 2007

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Simplified outline

The following is a simplified outline of this Act:

• Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register.

• Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register.

• The main remedies for breaches of this Act are civil penalties and injunctions.

Note: The Telecommunications Act 1997 contains additional provisions about telemarketing calls and marketing faxes. Those provisions include Part 6 (industry codes and standards), Part 26 (investigations), Part 27 (information‑gathering powers) and Part 31A (enforceable undertakings).

4 Definitions

In this Act:

account includes:

(a) a free account; and

(b) a pre‑paid account; and

ACMA means the Australian Communications and Media Authority.

acquire, when used in relation to goods or services, has the same meaning as in the Competition and Consumer Act 2010.

agency includes:

(a) an armed force; and

(b) a police force.

Australia means the Commonwealth of Australia and, when used in a geographical sense, includes the eligible Territories, but does not include any other external Territory.

Australian number means a number that is:

(a) specified in:

(i) the numbering scheme referred to in section 454A of the Telecommunications Act 1997; or

(ii) the numbering plan referred to in section 455 of that Act; and

(b) for use in connection with the supply of carriage services to the public in Australia, within the meaning of subsection 456(2) of that Act.

authorise:

(a) when used in relation to the making of a telemarketing call—has a meaning affected by clause 6 of Schedule 1; or

(b) when used in relation to the sending of a marketing fax—has a meaning affected by clause 6 of Schedule 1A.

authorised officer means:

(a) the Chair of the ACMA; or

(b) a member of the staff of the ACMA appointed under clause 8 of Schedule 3.

business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.

business number means an Australian number other than a number that is used, or maintained, exclusively or primarily for private or domestic purposes.

candidate means a person who has been nominated as a candidate under:

(a) the Commonwealth Electoral Act 1918; or

(b) a law of a State or Territory that deals with electoral matters.

carriage service has the same meaning as in the Telecommunications Act 1997.

cause:

(a) when used in relation to the making of a telemarketing call—has a meaning affected by subsection 11(9); or

(b) when used in relation to the sending of a marketing fax—has a meaning affected by subsection 12B(10).

civil contravention means a contravention of a civil penalty provision.

civil penalty order means an order under subsection 24(1).

civil penalty provision means any of the following provisions:

(a) subsection 11(1);

(b) subsection 11(7);

(d) subsection 12(2);

(da) subsection 12B(1);

(db) subsection 12B(8);

(dc) subsection 12C(1);

(dd) subsection 12C(2);

(e) a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 44(2)(c).

consent, when used in relation to the making of a telemarketing call or the sending of a marketing fax, has the meaning given by Schedule 2.

contracted service provider means the person (if any) who keeps the Do Not Call Register as mentioned in paragraph 13(1)(b).

data processing device has the same meaning as in the Telecommunications Act 1997.

dealing with:

(a) when used in relation to a telemarketing call—includes retrieving the call from a voicemail system or similar system; or

(b) when used in relation to a marketing fax—includes:

(i) printing the fax; and

(ii) retrieving the fax from a device or a computer system.

designated marketing fax has the meaning given by Schedule 1A.

designated telemarketing call has the meaning given by Schedule 1.

director includes a member of the governing body of an organisation.

Do Not Call Register means the register kept under section 13.

educational institution includes:

(a) a pre‑school; and

(b) a school; and

(d) a university.

eligible Territory means:

(a) the Territory of Christmas Island; or

(b) the Territory of Cocos (Keeling) Islands; or

emergency service number has the same meaning as in the Telecommunications Act 1997.

employee:

(a) when used in clause 4 of Schedule 1—has a meaning affected by clause 7 of Schedule 1; or

(b) when used in clause 4 of Schedule 1A—has a meaning affected by clause 7 of Schedule 1A.

employer:

(a) when used in clause 4 of Schedule 1—has a meaning affected by clause 7 of Schedule 1; or

(b) when used in clause 4 of Schedule 1A—has a meaning affected by clause 7 of Schedule 1A.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

fax has a meaning affected by section 5A.

Federal Circuit Court means the Federal Circuit Court of Australia.

Federal Court means the Federal Court of Australia.

give effect to, in relation to a contract, arrangement or understanding, includes do an act or thing:

(a) in pursuance of; or

(b) in accordance with;

the contract, arrangement or understanding.

goods has the same meaning as in the Competition and Consumer Act 2010.

government body means:

(a) a department of the Commonwealth, a State or a Territory; or

(b) an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or

(d) an agency, authority or instrumentality of the government of a foreign country; or

(e) a department of the government of a part of a foreign country; or

(f) an agency, authority or instrumentality of the government of a part of a foreign country.

infringement notice means an infringement notice under clause 2 of Schedule 3.

international convention means:

(a) a convention to which Australia is a party; or

(b) an agreement between Australia and a foreign country.

investment means any mode of application of money or other property for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).

make includes attempt to make.

marketing fax has the meaning given by section 5B.

mistake means reasonable mistake of fact.

nominee has the meaning given by section 39.

organisation includes:

(a) a body corporate; and

(b) a partnership; and

(d) a court or tribunal; and

(e) an unincorporated body or association.

Express references in this Act to organisations do not imply that references in this Act to persons do not include bodies politic or corporate.

Note: Subsection 2C(1) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual.

person includes a partnership.

Note: For treatment of partnerships, see section 585 of the Telecommunications Act 1997.

publish includes:

(a) publish on the internet; and

(b) publish to the public or a section of the public.

registered charity means an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25‑5(5) of that Act.

registered political party means a political party, or a branch or division of a political party, that is registered under:

(a) the Commonwealth Electoral Act 1918; or

(b) a law of a State or Territory that deals with electoral matters.

relevant account‑holder, in relation to an Australian number, means:

(a) if an individual or organisation is solely responsible for the relevant account—the individual or organisation; or

(b) if 2 or more individuals and/or organisations are jointly responsible for the relevant account—any of those individuals or organisations.

send includes attempt to send.

services has the same meaning as in the Competition and Consumer Act 2010.

supply:

(a) when used in relation to goods or services—has the same meaning as in the Competition and Consumer Act 2010; or

(b) when used in relation to land—includes transfer; or

telemarketing call has the meaning given by section 5.

voice call means:

(a) a voice call within the ordinary meaning of that expression; or

(b) a call that involves a recorded or synthetic voice; or

(c) if a call covered by paragraph (a) or (b) is not practical for a particular recipient with a disability (for example, because the recipient has a hearing impairment)—a call that is equivalent to a call covered by either of those paragraphs;

whether or not the recipient responds by way of pressing buttons on a telephone handset or similar thing.

5 Telemarketing calls

Basic definition

(1) For the purposes of this Act, a telemarketing call is a voice call to an Australian number, where, having regard to:

(a) the content of the call; and

(b) the presentational aspects of the call; and

(d) if the number from which the call is made is disclosed to the recipient (whether by calling line identification or otherwise)—the content (if any) that can be obtained by calling that number;

it would be concluded that the purpose, or one of the purposes, of the call is:

(e) to offer to supply goods or services; or

(f) to advertise or promote goods or services; or

(g) to advertise or promote a supplier, or prospective supplier, of goods or services; or

(h) to offer to supply land or an interest in land; or

(i) to advertise or promote land or an interest in land; or

(j) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or

(k) to offer to provide a business opportunity or investment opportunity; or

(l) to advertise or promote a business opportunity or investment opportunity; or

(m) to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or

(n) to solicit donations; or

(o) a purpose specified in the regulations.

(2) For the purposes of paragraphs (1)(e) to (m), it is immaterial whether the goods, services, land, interest or opportunity exists.

(3) For the purposes of paragraphs (1)(e) to (m), it is immaterial whether it is lawful to acquire the goods, services, land or interest or take up the opportunity.

(4) Either of the following:

(a) the supplier or prospective supplier mentioned in paragraph (1)(g) or (j);

(b) the provider or prospective provider mentioned in paragraph (1)(m);

may be the individual or organisation who made the call or authorised the making of the call.

(5) Paragraphs (1)(e) to (o) are to be read independently of each other.

(6) Subsection (1) has effect subject to subsection (7).

Excluded calls—regulations

(7) The regulations may provide that a specified kind of voice call is not a telemarketing call for the purposes of this Act.

5A Faxes

A reference in this Act to a fax is a reference to a fax, whether or not:

(a) the fax is a facsimile of a physical document; or

(b) the fax was created by computer software; or

(i) a fax machine; or

(ii) a fax server; or

(iii) a fax gateway; or

(iv) a mail‑to‑fax system; or

(v) equipment specified in the regulations; or

(vi) a system specified in the regulations.

5B Marketing faxes

Basic definition

(1) For the purposes of this Act, a marketing fax is a fax sent to an Australian number, where, having regard to:

(a) the content of the fax; and

(b) the presentational aspects of the fax; and

it would be concluded that the purpose, or one of the purposes, of the fax is:

(d) to offer to supply goods or services; or

(e) to advertise or promote goods or services; or

(f) to advertise or promote a supplier, or prospective supplier, of goods or services; or

(g) to offer to supply land or an interest in land; or

(h) to advertise or promote land or an interest in land; or

(i) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or

(j) to offer to provide a business opportunity or investment opportunity; or

(k) to advertise or promote a business opportunity or investment opportunity; or

(l) to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or

(m) to solicit donations; or

(n) a purpose specified in the regulations.

(2) For the purposes of paragraphs (1)(d) to (l), it is immaterial whether the goods, services, land, interest or opportunity exists.

(3) For the purposes of paragraphs (1)(d) to (l), it is immaterial whether it is lawful to acquire the goods, services, land or interest or take up the opportunity.

(4) Either of the following:

(a) the supplier or prospective supplier mentioned in paragraph (1)(f) or (i);

(b) the provider or prospective provider mentioned in paragraph (1)(l);

may be the individual or organisation who sent the fax or authorised the sending of the fax.

(5) Paragraphs (1)(d) to (n) are to be read independently of each other.

(6) Subsection (1) has effect subject to subsection (7).

Excluded faxes—regulations

(7) The regulations may provide that a specified kind of fax is not a marketing fax for the purposes of this Act.

6 Continuity of partnerships

For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.

7 Crown to be bound

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.

(3) The protection in subsection (2) does not apply to an authority of the Crown.

8 Extension to external Territories

(1) This Act extends to:

(a) the Territory of Christmas Island; and

(b) the Territory of Cocos (Keeling) Islands; and

(2) This Act does not extend to Norfolk Island unless it is prescribed.

9 Extra‑territorial application

Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.

Part 2—Rules about making telemarketing calls

10 Simplified outline

The following is a simplified outline of this Part:

• Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register.

• Agreements for the making of telemarketing calls must require compliance with this Act.

11 Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register

(1) A person must not make, or cause to be made, a telemarketing call to an Australian number if:

(a) the number is registered on the Do Not Call Register; and

(b) the call is not a designated telemarketing call.

Note: For designated telemarketing call, see Schedule 1.

(2) Subsection (1) does not apply if:

(a) the relevant account‑holder; or

(b) a nominee of the relevant account‑holder;

consented to the making of the call.

Note 1: For the meaning of consent, see Schedule 2.

Note 2: For the meaning of nominee, see section 39.

(3) Subsection (1) does not apply if:

(a) the number was included on a list that was submitted by the person under subsection 19(1); and

(b) during the 30‑day period ending at the end of the day on which the call was made:

(i) the person received information under paragraph 19(2)(d) in response to the submission of the list, but that information did not state that the number was registered on the Do Not Call Register; or

(ii) the person was informed under paragraph 19(2)(e), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or

(iii) under paragraph 19(2)(f), in response to the submission of the list, the person was given a list that included the number.

For the purposes of this subsection, a list may consist of a single Australian number.

Note: Section 19 deals with access to the Do Not Call Register.

(4) Subsection (1) does not apply if the person made the call, or caused the call to be made, by mistake.

(5) Subsection (1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention.

(6) A person who wishes to rely on subsection (2), (3), (4) or (5) bears an evidential burden in relation to that matter.

Ancillary contraventions

(7) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(8) Subsections (1) and (7) are civil penalty provisions.

Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Extended meaning of cause

(9) For the purposes of this section, if:

(a) a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and

(c) the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by making a telemarketing call;

the first person is taken to have caused the telemarketing call to be made.

(10) Paragraph (9)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.

12 Agreements for the making of telemarketing calls must require compliance with this Act

(1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:

(a) there is a reasonable likelihood that the other person will give effect to the contract, arrangement or understanding by:

(i) making telemarketing calls; or

(ii) causing any or all of the employees or agents of the other person to make telemarketing calls; and

(b) there is a reasonable likelihood that some or all of those calls will be made to Australian numbers that, under section 14, are eligible to be entered on the Do Not Call Register; and

(c) the contract, arrangement or understanding does not contain an express provision to the effect that the other person will:

(i) in any case—comply with this Act; and

(ii) if subparagraph (a)(ii) applies—take all reasonable steps to ensure that the employees and agents of the other person comply with this Act;

in relation to the making of telemarketing calls that are made in order to give effect to the contract, arrangement or understanding.

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Validity of contracts, arrangements or understandings

(4) A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding.

Part 2A—Rules about sending marketing faxes

12A Simplified outline

The following is a simplified outline of this Part:

• Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register.

• Agreements for the sending of marketing faxes must require compliance with this Act.

12B Unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register

(1) A person must not send, or cause to be sent, a marketing fax to an Australian number if:

(a) the number is registered on the Do Not Call Register; and

(b) the fax is not a designated marketing fax.

Note: For designated marketing fax, see Schedule 1A.

(2) Subsection (1) does not apply if:

(a) the relevant account‑holder; or

(b) a nominee of the relevant account‑holder;

consented to the sending of the fax.

Note 1: For the meaning of consent, see Schedule 2.

Note 2: For the meaning of nominee, see section 39.

(3) Subsection (1) does not apply if:

(a) the number was included on a list that was submitted by the person under subsection 19(1); and

(b) during the 30‑day period ending at the end of the day on which the fax was sent:

(ii) the person was informed under paragraph 19(2)(e), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or

(iii) under paragraph 19(2)(f), in response to the submission of the list, the person was given a list that included the number.

For the purposes of this subsection, a list may consist of a single Australian number.

Note: Section 19 deals with access to the Do Not Call Register.

(5) Subsection (1) does not apply if the person sent the fax, or caused the fax to be sent, by mistake.

(6) Subsection (1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention.

(7) A person who wishes to rely on subsection (2), (3), (5) or (6) bears an evidential burden in relation to that matter.

Ancillary contraventions

(8) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(9) Subsections (1) and (8) are civil penalty provisions.

Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Extended meaning of cause

(10) For the purposes of this section, if:

(a) a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and

(c) the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by sending a marketing fax;

the first person is taken to have caused the marketing fax to be sent.

(11) Paragraph (10)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.

12C Agreements for the sending of marketing faxes must require compliance with this Act

(1) A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:

(a) there is a reasonable likelihood that the other person will give effect to the contract, arrangement or understanding by:

(i) sending marketing faxes; or

(ii) causing any or all of the employees or agents of the other person to send marketing faxes; and

(b) there is a reasonable likelihood that some or all of those faxes will be sent to Australian numbers that, under section 14, are eligible to be entered on the Do Not Call Register; and

(c) the contract, arrangement or understanding does not contain an express provision to the effect that the other person will:

(i) in any case—comply with this Act; and

(ii) if subparagraph (a)(ii) applies—take all reasonable steps to ensure that the employees and agents of the other person comply with this Act;

in relation to the sending of marketing faxes that are sent in order to give effect to the contract, arrangement or understanding.

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or

(d) conspire with others to effect a contravention of subsection (1).

Civil penalty provisions

(3) Subsections (1) and (2) are civil penalty provisions.

Note: Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Validity of contracts, arrangements or understandings

(4) A failure to comply with subsection (1) does not affect the validity of any contract, arrangement or understanding.

Part 3—Do Not Call Register

13 Do Not Call Register

(1) The ACMA must:

(a) keep; or

(b) arrange for another person (the contracted service provider) to keep, on behalf of the ACMA;

a register of Australian numbers for the purposes of this Act.

(2) The register is to be known as the Do Not Call Register.

(3) The register is to be kept in electronic form.

(4) The register is not a legislative instrument.

(5) The ACMA must begin to comply with subsection (1) as soon as practicable after the commencement of this section.

(6) For the purposes of the Privacy Act 1988, the primary purpose of the Do Not Call Register is to facilitate:

(a) the prohibition, under section 11, of unsolicited telemarketing calls (other than designated telemarketing calls); and

(b) the prohibition, under section 12B, of unsolicited marketing faxes (other than designated marketing faxes).

14 Eligibility for registration

An Australian number is eligible to be entered on the Do Not Call Register if:

(a) it is used or maintained primarily for private or domestic purposes; or

(b) it is used or maintained exclusively for transmitting and/or receiving faxes; or

(d) it is an emergency service number.

15 Applications for registration

An application for an Australian number to be entered on the Do Not Call Register:

(a) may be made by:

(i) the relevant account‑holder; or

(ii) a nominee of the relevant account‑holder; and

(b) is to be made to:

(i) if the Do Not Call Register is kept by the ACMA—the ACMA; or

(ii) if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA; and

(d) is to be made in the applicable manner (if any) specified in a determination under subsection 18(1).

Note: For the meaning of nominee, see section 39.

16 Registration

If:

(a) an application is made for an Australian number to be entered on the Do Not Call Register; and

(b) the applicant satisfies:

(i) if the Do Not Call Register is kept by the ACMA—the ACMA; or

(ii) if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA;

that the number is eligible to be entered on the Do Not Call Register;

then:

(d) if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA;

must enter the number on the Do Not Call Register.

17 Duration of registration

(1) The registration of an Australian number on the Do Not Call Register:

(a) takes effect when it is entered on the Do Not Call Register; and

(b) unless sooner removed from the Do Not Call Register in accordance with a determination under subsection 18(1), remains in force indefinitely.

(3) If an Australian number is removed from the Do Not Call Register, this Act does not prevent the number from being re‑registered on the Do Not Call Register.

18 Administration of the Do Not Call Register—determinations

(1) The ACMA may make a determination that makes provision for and in relation to any or all of the following:

(a) the form of applications for Australian numbers to be entered on the Do Not Call Register;

(b) the manner in which such applications are to be made;

(d) the correction of entries in the Do Not Call Register;

(e) the removal of entries from the Do Not Call Register;

(f) any other matter relating to the administration or operation of the Do Not Call Register.

(2) A determination under subsection (1) is a legislative instrument.

(3) A determination under subsection (1) is to be an instrument of a legislative character.

19 Access to the Do Not Call Register

(1) A person (the access‑seeker) who wishes to access the Do Not Call Register may submit a list of Australian numbers to:

(a) if the Do Not Call Register is kept by the ACMA—the ACMA; or

(b) if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA.

For this purpose, a list may consist of a single Australian number.

(2) If the access‑seeker has paid the applicable fee (if any) determined under subsection 21(1), then:

(a) if the Do Not Call Register is kept by the ACMA—the ACMA; or

(b) if the Do Not Call Register is kept by the contracted service provider—the contracted service provider on behalf of the ACMA;

must:

(c) check the Australian numbers on the access‑seeker’s list against the Australian numbers registered on the Do Not Call Register; and

(d) if the access‑seeker requests the ACMA or the contracted service provider, as the case may be, to do so—inform the access‑seeker which numbers (if any) on the access‑seeker’s list are registered on the Do Not Call Register; and

(e) if the access‑seeker requests the ACMA or the contracted service provider, as the case may be, to do so—inform the access‑seeker which numbers (if any) on the access‑seeker’s list are not registered on the Do Not Call Register; and

(f) if the access‑seeker requests the ACMA or the contracted service provider, as the case may be, to do so—return the access‑seeker’s list, modified by the deletion of the numbers (if any) registered on the Do Not Call Register.

(4) A submission under subsection (1) is to be made in the applicable manner (if any) specified in a determination under subsection 20(1).

20 Access—determinations

(1) The ACMA may make a determination that makes provision for and in relation to any or all of the following:

(a) the manner in which a submission under subsection 19(1) is to be made;

(b) the manner in which information under paragraph 19(2)(d) or (e) is to be given;

(d) any other matter relating to access to the Do Not Call Register.

Determinations

(2) A determination under subsection (1) is a legislative instrument.

(3) A determination under subsection (1) is to be an instrument of a legislative character.

21 Access—fees

(1) The ACMA may make a determination that makes provision for and in relation to either or both of the following:

(a) fees payable for services provided under subsection 19(2);

(b) refunds of fees for those services.

Exemptions

(2) The ACMA may make a determination that makes provision for and in relation to exemptions from fees for services provided under subsection 19(2).

(3) The Minister may make a determination that makes provision for and in relation to exemptions from fees for services provided under subsection 19(2).

(4) If one or more determinations are in force under subsection (3), a determination under subsection (2) has no effect except to the extent to which it makes provision for and in relation to exemptions that are in addition to exemptions dealt with by the determinations under subsection (3).

Other matters

(5) A fee must not be such as to amount to taxation.

(6) A fee is payable to the ACMA on behalf of the Commonwealth.

(7) Section 60 of the Australian Communications and Media Authority Act 2005 does not apply in relation to services provided under subsection 19(2).

Note: Section 60 of the Australian Communications and Media Authority Act 2005 deals with charges relating to the ACMA’s expenses.

Determinations

(8) A determination under subsection (1), (2) or (3) is a legislative instrument.

(9) A determination under subsection (1), (2), or (3) is to be an instrument of a legislative character.

22 Application of the Privacy Act 1988 to the contracted service provider

(1) For the purposes of the Privacy Act 1988, if the Do Not Call Register is kept by the contracted service provider under a contract:

(a) the keeping of the Do Not Call Register by the contracted service provider; and

(b) the operation of the Do Not Call Register by the contracted service provider; and

(i) this Part; or

(ii) a determination under this Part;

is taken to be the provision of a service to the ACMA under the contract.

(2) Subsection (1) is enacted for the avoidance of doubt.

Part 4—Civil penalties

23 Simplified outline

The following is a simplified outline of this Part:

• Pecuniary penalties are payable for contraventions of civil penalty provisions.

• Proceedings for the recovery of penalties are to be instituted in the Federal Court or the Federal Circuit Court.

Note: Schedule 3 sets up a system of infringement notices relating to contraventions of civil penalty provisions.

24 Civil penalty orders

(1) If the Federal Court or the Federal Circuit Court is satisfied that a person has contravened a civil penalty provision, the court may, on the application of the ACMA, order the person to pay to the Commonwealth a pecuniary penalty.

(2) An order under subsection (1) is to be known as a civil penalty order.

Determining pecuniary penalty

(3) In determining the pecuniary penalty, the court must have regard to all relevant matters, including:

(a) the nature and extent of the contravention; and

(b) the nature and extent of any loss or damage suffered as a result of the contravention; and

(d) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct; and

(e) if the court considers that it is appropriate to do so—whether the person has previously been found by a court in a foreign country to have engaged in any similar conduct.

Civil enforcement of penalty

(4) The pecuniary penalty is a civil debt payable to the Commonwealth. The Commonwealth may enforce the civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

25 Maximum penalties for contravention of civil penalty provisions

(1) The maximum penalty payable under subsection 24(1) by a person in respect of a contravention of a civil penalty provision depends on:

(a) whether the person has a prior record in relation to the civil penalty provision (see subsection (2)); and

(b) whether the person is a body corporate; and

Prior record

(2) If:

(a) on a particular day (the first day), the Federal Court or the Federal Circuit Court makes a civil penalty order against a person in respect of a contravention of a particular civil penalty provision; and

(b) that is the first occasion on which a court makes a civil penalty order against the person in respect of a contravention of the civil penalty provision;

then, for the purposes of determining the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision that occurs after the first day, the person has a prior record in relation to the civil penalty provision.

Maximum penalty payable by body corporate—no prior record

(3) If a body corporate does not have a prior record in relation to a particular civil penalty provision:

(a) the penalty payable under subsection 24(1) by the body corporate in respect of a contravention of the civil penalty provision must not exceed:

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—100 penalty units; or

(ii) in any other case—50 penalty units; and

(b) if the Federal Court or the Federal Circuit Court finds that the body corporate has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the body corporate in respect of those contraventions must not exceed:

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—2,000 penalty units; or

(ii) in any other case—1,000 penalty units.

Maximum penalty payable by a person other than a body corporate—no prior record

(4) If a person other than a body corporate does not have a prior record in relation to a particular civil penalty provision:

(a) the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision must not exceed:

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—20 penalty units; or

(ii) in any other case—10 penalty units; and

(b) if the Federal Court or the Federal Circuit Court finds that the person has, on a particular day, committed 2 or more contraventions of the civil penalty provision—the total of the penalties payable under subsection 24(1) by the person in respect of those contraventions must not exceed:

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—400 penalty units; or

(ii) in any other case—200 penalty units.

Maximum penalty payable by body corporate—prior record

(5) If a body corporate has a prior record in relation to a particular civil penalty provision:

(a) the penalty payable under subsection 24(1) by the body corporate in respect of a contravention of the civil penalty provision must not exceed:

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—500 penalty units; or

(ii) in any other case—250 penalty units; and

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—10,000 penalty units; or

(ii) in any other case—5,000 penalty units.

Maximum penalty payable by a person other than a body corporate—prior record

(6) If a person other than a body corporate has a prior record in relation to a particular civil penalty provision:

(a) the penalty payable under subsection 24(1) by the person in respect of a contravention of the civil penalty provision must not exceed:

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—100 penalty units; or

(ii) in any other case—50 penalty units; and

(i) if the civil penalty provision is subsection 11(1) or (7) or 12B(1) or (8)—2,000 penalty units; or

(ii) in any other case—1,000 penalty units.

26 2 or more proceedings may be heard together

The Federal Court or the Federal Circuit Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

27 Time limit for application for an order

Proceedings for a civil penalty order may be started no later than 6 years after the contravention.

28 Civil evidence and procedure rules for civil penalty orders

The Federal Court or the Federal Circuit Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

29 Criminal proceedings not to be brought for contravention of civil penalty provisions

Criminal proceedings do not lie against a person only because the person has contravened a civil penalty provision.

30 Ancillary orders—compensation

(1) If:

(a) in one or more proceedings under section 24, the Federal Court or the Federal Circuit Court finds that a person (the perpetrator) has contravened one or more civil penalty provisions; and

(b) the court is satisfied that another person (the victim) has suffered loss or damage as a result of any or all of those contraventions;

the court may, on the application of the ACMA or the victim, make an order that the court considers appropriate directing the perpetrator to compensate the victim.

(2) In determining whether a person (the victim) has suffered loss or damage as a result of one or more contraventions by another person of section 11 in relation to the making of one or more telemarketing calls, and in assessing the amount of compensation payable, the court may have regard to the following:

(a) the extent to which any expenses incurred by the victim are attributable to dealing with the calls;

(b) the effect of dealing with the calls on the victim’s ability to carry on business or other activities;

(d) any loss of business opportunities suffered by the victim as a result of dealing with the calls;

(e) any other matters that the court considers relevant.

(2A) In determining whether a person (the victim) has suffered loss or damage as a result of one or more contraventions by another person of section 12B in relation to the sending of one or more marketing faxes, and in assessing the amount of compensation payable, the court may have regard to the following:

(a) the extent to which any expenses incurred by the victim are attributable to dealing with the faxes;

(b) the effect of dealing with the faxes on the victim’s ability to carry on business or other activities;

(d) any loss of business opportunities suffered by the victim as a result of dealing with the faxes;

(e) any other matters that the court considers relevant.

(3) The Federal Court or the Federal Circuit Court may make an order under subsection (1), whether or not it makes a civil penalty order.

(4) An application under subsection (1) may be made at any time within 6 years after the contravention concerned.

31 Ancillary orders—recovery of financial benefit

(1) If:

(a) in one or more proceedings under section 24, the Federal Court or the Federal Circuit Court finds that a person has contravened one or more civil penalty provisions; and

(b) the court is satisfied that the person has obtained (whether directly or indirectly) a financial benefit that is reasonably attributable to any or all of those contraventions;

the court may, on the application of the ACMA, make an order directing the person to pay to the Commonwealth an amount up to the amount of the financial benefit.

(2) The Federal Court or the Federal Circuit Court may make an order under subsection (1), whether or not it makes a civil penalty order.

(3) An application under subsection (1) may be made at any time within 6 years after the contravention concerned.

32 Schedule 3 (infringement notices)

Schedule 3 has effect.

Part 5—Injunctions

33 Simplified outline

The following is a simplified outline of this Part:

• The Federal Court or the Federal Circuit Court may grant injunctions in relation to contraventions of civil penalty provisions.

34 Injunctions

Restraining injunctions

(1) If a person has engaged, is engaging or is proposing to engage, in any conduct in contravention of a civil penalty provision, the Federal Court or the Federal Circuit Court may, on the application of the ACMA, grant an injunction:

(a) restraining the person from engaging in the conduct; and

(b) if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

(2) If:

(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

(b) the refusal or failure was, is or would be a contravention of a civil penalty provision;

the Federal Court or the Federal Circuit Court may, on the application of the ACMA, grant an injunction requiring the person to do that act or thing.

35 Interim injunctions

Grant of interim injunction

(1) If an application is made to the Federal Court or the Federal Circuit Court for an injunction under section 34, the court may, before considering the application, grant an interim injunction restraining a person from engaging in conduct of a kind referred to in that section.

No undertakings as to damages

(2) The Federal Court or the Federal Circuit Court is not to require an applicant for an injunction under section 34, as a condition of granting an interim injunction, to give any undertakings as to damages.

36 Discharge etc. of injunctions

The Federal Court or the Federal Circuit Court may discharge or vary an injunction granted by it under this Part.

37 Certain limits on granting injunctions not to apply

Restraining injunctions

(1) The power of the Federal Court or the Federal Circuit Court under this Part to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

Performance injunctions

(2) The power of the Federal Court or the Federal Circuit Court to grant an injunction requiring a person to do an act or thing may be exercised:

(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

(b) if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

38 Other powers of the Federal Court or the Federal Circuit Court unaffected

The powers conferred on the Federal Court or the Federal Circuit Court under this Part are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

Part 6—Miscellaneous

39 Nominees

Nomination by relevant account‑holder

(1) For the purposes of the application of this Act to an Australian number, if:

(a) the relevant account‑holder has nominated an individual in relation to the number; and

(b) the nomination has not been withdrawn;

the individual is a nominee of the relevant account‑holder.

(2) A nomination, or a withdrawal of a nomination, must be in writing.

(3) This Act does not prevent 2 or more individuals from being nominated in relation to the same Australian number.

Deemed nominee

(4) The regulations may provide that, for the purposes of the application of this Act to an Australian number, an individual is taken to be a nominee of the relevant account‑holder in the circumstances specified in the regulations.

Principles of agency not limited

(5) References in this Act to a nominee do not, by implication, limit the application of the principles of agency to a matter arising under this Act.

40 Formal warnings—breach of civil penalty provision

The ACMA may issue a formal warning if a person contravenes a civil penalty provision.

41 Additional ACMA functions

The ACMA has the following functions:

(a) to conduct and/or co‑ordinate community education programs about unsolicited telemarketing calls and unsolicited marketing faxes, in consultation with relevant industry and consumer groups and government agencies;

(b) to conduct and/or commission research into issues relating to unsolicited telemarketing calls and unsolicited marketing faxes;

(c) to liaise with regulatory and other relevant bodies overseas about co‑operative arrangements for the prohibition or regulation of unsolicited telemarketing calls and unsolicited marketing faxes.

42 Operation of State and Territory laws

This Act is not intended to exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

43 Implied freedom of political communication

This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

44 Giving effect to international conventions

(1) The regulations may make provision for and in relation to giving effect to an international convention that deals with telemarketing calls or marketing faxes.

(2) Regulations made for the purposes of subsection (1) may:

(a) vest the Federal Court or the Federal Circuit Court with jurisdiction in a matter or matters arising under the regulations; and

(b) prescribe penalties, not exceeding a fine of 50 penalty units, for offences against the regulations; and

46 Regulations

The Governor‑General may make regulations prescribing matters:

(a) required or permitted to be prescribed by this Act; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Schedule 1—Designated telemarketing calls

Note: See section 4.

1 Object

The object of this Schedule is to define the expression designated telemarketing call.

Note: Designated telemarketing calls are exempt from section 11 (unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register).

2 Government bodies and charities

For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

(a) the making of the call is authorised by either of the following bodies:

(i) a government body;

(ii) a registered charity; and

(b) if the call relates to goods or services—the body is the supplier, or prospective supplier, of the goods or services; and

3 Political parties, independent members of parliament, candidates etc.

Political parties

(1) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

(a) the making of the call is authorised by a registered political party; and

(b) having regard to:

(i) the content of the call; and

(ii) the presentational aspects of the call;

it would be concluded that the purpose, or one of the purposes, of the call is:

(iii) to conduct fund‑raising for electoral purposes; or

(iv) to conduct fund‑raising for political purposes; and

(c) if the call relates to goods or services—the registered political party is the supplier, or prospective supplier, of the goods or services; and

(d) the call is not of a kind specified in the regulations.

Independent members of parliament etc.

(2) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

(a) the making of the call is authorised by a person who is a member of:

(i) the Parliament of the Commonwealth; or

(ii) the parliament of a State; or

(iii) the Legislative Assembly for the Australian Capital Territory; or

(iv) the Legislative Assembly of the Northern Territory; or

(vi) a local governing body established by or under a law of a State or a Territory;

and who is not affiliated with any registered political party; and

(b) having regard to:

(i) the content of the call; and

(ii) the presentational aspects of the call;

it would be concluded that the purpose, or one of the purposes, of the call is:

(iii) to conduct fund‑raising for electoral purposes; or

(iv) to conduct fund‑raising for political purposes; and

(c) if the call relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

(d) the call is not of a kind specified in the regulations.

Candidates

(3) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

(a) the making of the call is authorised by a person who is a candidate in an election for:

(i) the House of Representatives; or

(ii) the Senate; or

(iii) a house of the parliament of a State; or

(iv) the Legislative Assembly for the Australian Capital Territory; or

(v) the Legislative Assembly of the Northern Territory; or

(vii) a local governing body established by or under a law of a State or a Territory; and

(b) having regard to:

(i) the content of the call; and

(ii) the presentational aspects of the call;

it would be concluded that the purpose, or one of the purposes, of the call is:

(iii) to conduct fund‑raising for electoral purposes; or

(iv) to conduct fund‑raising for political purposes; and

(c) if the call relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

(d) the call is not of a kind specified in the regulations.

4 Educational institutions

Relevant account‑holder is a householder

(1) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

(a) the making of the call is authorised by an educational institution; and

(b) the call is made to a number that is used or maintained primarily for the private or domestic purposes of the relevant account‑holder and/or members of the relevant account‑holder’s household; and

(i) the relevant account‑holder is, or has been, enrolled as a student in that institution;

(ii) a member or former member of the relevant account‑holder’s household is, or has been, enrolled as a student in that institution; and

(d) if the call relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

(e) the call is not of a kind specified in the regulations.

Relevant account‑holder is an employer

(2) For the purposes of this Act, a telemarketing call is a designated telemarketing call if:

(a) the making of the call is authorised by an educational institution; and

(b) the relevant account‑holder is the employer of an employee; and

(c) the call is made to a number that is used or maintained primarily for the private or domestic purposes of the employee and/or members of the employee’s household; and

(d) either or both of the following subparagraphs apply:

(i) the employee is, or has been, enrolled as a student in that institution;

(ii) a member or former member of the employee’s household is, or has been, enrolled as a student in that institution; and

(e) if the call relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

(f) the call is not of a kind specified in the regulations.

Note: Clause 7 provides for an extended meaning of employee and employer.

5 Regulations

The regulations may provide that a specified kind of telemarketing call is a designated telemarketing call for the purposes of this Act.

6 Authorising the making of telemarketing calls

Attribution of authorisation to organisation

(1) For the purposes of this Schedule (including subclause (2)), if:

(a) an individual authorises the making of a telemarketing call; and

(b) the individual does so on behalf of an organisation;

then:

(d) the individual is taken not to authorise the making of the call.

Self‑authorisation

(2) For the purposes of this Schedule, if:

(a) a telemarketing call is made by an individual or organisation; and

(b) the making of the call is not authorised by any other individual or organisation;

the first‑mentioned individual or organisation is taken to authorise the making of the call.

7 Extended meaning of employee and employer

Member of the executive body of a body corporate

(1) For the purposes of clause 4, if an individual is a member of the executive body (whether described as the board of directors or otherwise) of a body corporate, the individual is taken to be an employee of the body corporate.

Contractor

(2) For the purposes of clause 4, if an individual works under a contract that is wholly or principally for the labour of the individual, the individual is taken to be an employee of the other party to the contract.

Member of parliament

(3) For the purposes of clause 4, if an individual is a member of the Parliament of the Commonwealth, the individual is taken to be an employee of the Commonwealth.

(4) For the purposes of clause 4, if an individual is a member of the parliament of a State, the individual is taken to be an employee of the State.

(5) For the purposes of clause 4, if an individual is a member of the Legislative Assembly for the Australian Capital Territory, the individual is taken to be an employee of the Australian Capital Territory.

(6) For the purposes of clause 4, if an individual is a member of the Legislative Assembly of the Northern Territory, the individual is taken to be an employee of the Northern Territory.

Member of local governing body

(8) For the purposes of clause 4, if an individual is a member of a local governing body established by or under a law of a State or Territory, the individual is taken to be an employee of that body.

Officeholder etc.

(9) For the purposes of clause 4, if an individual:

(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

the individual is taken to be an employee of the Commonwealth, the State or the Territory, as the case requires.

Schedule 1A—Designated marketing faxes

Note: See section 4.

1 Object

The object of this Schedule is to define the expression designated marketing fax.

Note: Designated marketing faxes are exempt from section 12B (unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register).

2 Government bodies and charities

For the purposes of this Act, a marketing fax is a designated marketing fax if:

(a) the sending of the fax is authorised by either of the following bodies:

(i) a government body;

(ii) a registered charity; and

(b) if the fax relates to goods or services—the body is the supplier, or prospective supplier, of the goods or services; and

3 Political parties, independent members of parliament, candidates etc.

Political parties

(1) For the purposes of this Act, a marketing fax is a designated marketing fax if:

(a) the sending of the fax is authorised by a registered political party; and

(b) having regard to:

(i) the content of the fax; and

(ii) the presentational aspects of the fax;

it would be concluded that the purpose, or one of the purposes, of the fax is:

(iii) to conduct fund‑raising for electoral purposes; or

(iv) to conduct fund‑raising for political purposes; and

(c) if the fax relates to goods or services—the registered political party is the supplier, or prospective supplier, of the goods or services; and

(d) the fax is not of a kind specified in the regulations.

Independent members of parliament etc.

(2) For the purposes of this Act, a marketing fax is a designated marketing fax if:

(a) the sending of the fax is authorised by a person who is a member of:

(i) the Parliament of the Commonwealth; or

(ii) the parliament of a State; or

(iii) the Legislative Assembly for the Australian Capital Territory; or

(iv) the Legislative Assembly of the Northern Territory; or

(vi) a local governing body established by or under a law of a State or a Territory;

and who is not affiliated with any registered political party; and

(b) having regard to:

(i) the content of the fax; and

(ii) the presentational aspects of the fax;

it would be concluded that the purpose, or one of the purposes, of the fax is:

(iii) to conduct fund‑raising for electoral purposes; or

(iv) to conduct fund‑raising for political purposes; and

(c) if the fax relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

(d) the fax is not of a kind specified in the regulations.

Candidates

(3) For the purposes of this Act, a marketing fax is a designated marketing fax if:

(a) the sending of the fax is authorised by a person who is a candidate in an election for:

(i) the House of Representatives; or

(ii) the Senate; or

(iii) a house of the parliament of a State; or

(iv) the Legislative Assembly for the Australian Capital Territory; or

(v) the Legislative Assembly of the Northern Territory; or

(vii) a local governing body established by or under a law of a State or a Territory; and

(b) having regard to:

(i) the content of the fax; and

(ii) the presentational aspects of the fax;

it would be concluded that the purpose, or one of the purposes, of the fax is:

(iii) to conduct fund‑raising for electoral purposes; or

(iv) to conduct fund‑raising for political purposes; and

(c) if the fax relates to goods or services—the person is the supplier, or prospective supplier, of the goods or services; and

(d) the fax is not of a kind specified in the regulations.

4 Educational institutions

Relevant account‑holder is a householder

(1) For the purposes of this Act, a marketing fax is a designated marketing fax if:

(a) the sending of the fax is authorised by an educational institution; and

(b) the fax is sent to a number that is used or maintained primarily for the private or domestic purposes of the relevant account‑holder and/or members of the relevant account‑holder’s household; and

(i) the relevant account‑holder is, or has been, enrolled as a student in that institution;

(ii) a member or former member of the relevant account‑holder’s household is, or has been, enrolled as a student in that institution; and

(d) if the fax relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

(e) the fax is not of a kind specified in the regulations.

Relevant account‑holder is an employer

(2) For the purposes of this Act, a marketing fax is a designated marketing fax if:

(a) the sending of the fax is authorised by an educational institution; and

(b) the relevant account‑holder is the employer of an employee; and

(c) the fax is sent to a number that is used or maintained primarily for the private or domestic purposes of the employee and/or members of the employee’s household; and

(d) either or both of the following subparagraphs apply:

(i) the employee is, or has been, enrolled as a student in that institution;

(ii) a member or former member of the employee’s household is, or has been, enrolled as a student in that institution; and

(e) if the fax relates to goods or services—the institution is the supplier, or prospective supplier, of the goods or services; and

(f) the fax is not of a kind specified in the regulations.

Note: Clause 7 provides for an extended meaning of employee and employer.

5 Regulations

The regulations may provide that a specified kind of marketing fax is a designated marketing fax for the purposes of this Act.

6 Authorising the sending of marketing faxes

Attribution of authorisation to organisation

(1) For the purposes of this Schedule (including subclause (2)), if:

(a) an individual authorises the sending of a marketing fax; and

(b) the individual does so on behalf of an organisation;

then:

(d) the individual is taken not to authorise the sending of the fax.

Self‑authorisation

(2) For the purposes of this Schedule, if:

(a) a marketing fax is sent by an individual or organisation; and

(b) the sending of the fax is not authorised by any other individual or organisation;

the first‑mentioned individual or organisation is taken to authorise the sending of the fax.

7 Extended meaning of employee and employer

Member of the executive body of a body corporate

Contractor

Member of parliament

(3) For the purposes of clause 4, if an individual is a member of the Parliament of the Commonwealth, the individual is taken to be an employee of the Commonwealth.

(4) For the purposes of clause 4, if an individual is a member of the parliament of a State, the individual is taken to be an employee of the State.

(6) For the purposes of clause 4, if an individual is a member of the Legislative Assembly of the Northern Territory, the individual is taken to be an employee of the Northern Territory.

Member of local governing body

(8) For the purposes of clause 4, if an individual is a member of a local governing body established by or under a law of a State or Territory, the individual is taken to be an employee of that body.

Officeholder etc.

(9) For the purposes of clause 4, if an individual:

(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

the individual is taken to be an employee of the Commonwealth, the State or the Territory, as the case requires.

Schedule 2—Consent

Note: See section 4.

1 Object

The object of this Schedule is to define the expression consent when used in relation to the making of a telemarketing call or the sending of a marketing fax.

Note: The concept of consent is relevant to section 11 (unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register) and section 12B (unsolicited marketing faxes must not be sent to a number registered on the Do Not Call Register).

2 Basic definition

For the purposes of this Act, consent means:

(a) express consent; or

(b) consent that can reasonably be inferred from:

(i) the conduct; and

(ii) the business and other relationships;

of the individual or organisation concerned.

3 Duration of express consent

For the purposes of this Act, if:

(a) express consent is given; and

(b) the consent is not expressed to be for a specified period or for an indefinite period;

the consent is taken to have been withdrawn at the end of the period of 3 months beginning on the day on which the consent was given.

4 Consent may not be inferred from the publication of an Australian number

For the purposes of the application of this Act to an Australian number, consent of:

(a) the relevant account‑holder; or

(b) a nominee of the relevant account‑holder;

may not be inferred from the mere fact that the number has been published.

5 Regulations about consent

(1) The regulations may provide that, for the purposes of the application of this Act to an Australian number, the consent of:

(a) the relevant account‑holder; or

(b) a nominee of the relevant account‑holder;

may not be inferred in the circumstances specified in the regulations.

(2) The regulations may provide that, for the purposes of the application of this Act to an Australian number, the consent of:

(a) the relevant account‑holder; or

(b) a nominee of the relevant account‑holder;

may be inferred in the circumstances specified in the regulations.

7 Determinations about consent—marketing faxes sent to business numbers

(1) The ACMA may, by legislative instrument, determine that, for the purposes of the application of this Act to a marketing fax sent to a business number, the consent of the relevant account‑holder may not be inferred in the circumstances specified in the determination.

(2) The ACMA may, by legislative instrument, determine that, for the purposes of the application of this Act to a marketing fax sent to a business number, the consent of the relevant account‑holder may be inferred in the circumstances specified in the determination.

(3) Before making a determination under subclause (1) or (2), the ACMA must consult the Minister.

(4) Before making a determination under subclause (1) or (2), the ACMA must:

(a) publish on its website a notice:

(i) setting out a draft of the determination; and

(ii) inviting persons to make submissions to the ACMA about the draft determination within 14 days after the notice is published; and

(b) consider any submissions received within the 14‑day period.

(5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the ACMA by subclause (1) or (2). However, if a variation of a determination under subclause (1) or (2) is a variation of a minor nature, the ACMA is not required to comply with subclause (3) or (4) in relation to the variation.

(6) If a determination under subclause (1) or (2) of this clause is inconsistent with regulations made for the purposes of clause 5, the determination has no effect to the extent of the inconsistency.

Schedule 3—Infringement notices

Note: See section 32.

1 Object

The object of this Schedule is to set up a system of infringement notices for contraventions of civil penalty provisions as an alternative to the institution of proceedings in the Federal Court or the Federal Circuit Court.

2 When an infringement notice can be given

(1) If an authorised officer has reasonable grounds to believe that a person has, on a particular day, committed one or more contraventions of a particular civil penalty provision, the authorised officer may give to the person an infringement notice relating to those contraventions.

(2) An infringement notice must be given within 12 months after the day on which the civil contraventions are alleged to have taken place.

(2A) Subclause (2) does not apply to a contravention of subsection 12(1) or (2) or 12C(1) or (2).

Note 1: Section 12 deals with agreements for the making of telemarketing calls.

Note 2: Section 12C deals with agreements for the sending of marketing faxes.

(3) This clause does not authorise the giving of 2 or more infringement notices to a person in relation to contraventions of a particular civil penalty provision that allegedly occurred on the same day.

3 Matters to be included in an infringement notice

(1) An infringement notice must:

(a) set out the name of the person to whom the notice is given; and

(b) set out the name of the authorised officer who gave the notice; and

(i) set out brief details of each of the alleged civil contraventions; or

(ii) be accompanied by one or more data processing devices that contain, in electronic form, brief details of each of the alleged civil contraventions; and

(d) contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court or the Federal Circuit Court if the penalty specified in the notice is paid to the ACMA, on behalf of the Commonwealth, within:

(i) 28 days after the notice is given; or

(ii) if the ACMA allows a longer period—that longer period; and

(e) give an explanation of how payment of the penalty is to be made; and

(f) set out such other matters (if any) as are specified by the regulations.

Note: For the amount of penalty, see clause 4.

(2) For the purposes of paragraph (1)(c), the brief details must include the following information in relation to each alleged civil contravention:

(a) the date of the alleged contravention;

(b) the civil penalty provision that was allegedly contravened.

(3) Subparagraph (1)(c)(ii) does not authorise the inclusion of information in a data processing device unless, at the time the infringement notice was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference.

(4) This clause does not limit the operation of the Electronic Transactions Act 1999.

4 Amount of penalty

Infringement notice given to a body corporate

(1) The penalty to be specified in an infringement notice given to a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:

Number of penalty units
Item	In this case ...	the number of penalty units is ...
1	the notice relates to a single alleged contravention of subsection 11(1) or (7) or 12B(1) or (8)	20
2	the notice relates to more than 1, but fewer than 50, alleged contraventions of subsection 11(1) or (7) or 12B(1) or (8)	the number obtained by multiplying 20 by the number of alleged contraventions
3	the notice relates to 50 or more alleged contraventions of subsection 11(1) or (7) or 12B(1) or (8)	1,000
4	the notice relates to a single alleged contravention of a civil penalty provision other than subsection 11(1) or (7) or 12B(1) or (8)	10
5	the notice relates to more than 1, but fewer than 50, alleged contraventions of a civil penalty provision other than subsection 11(1) or (7) or 12B(1) or (8)	the number obtained by multiplying 10 by the number of alleged contraventions
6	the notice relates to 50 or more alleged contraventions of a civil penalty provision other than subsection 11(1) or (7) or 12B(1) or (8)	500

Infringement notice given to a person other than a body corporate

(2) The penalty to be specified in an infringement notice given to a person other than a body corporate must be a pecuniary penalty equal to the number of penalty units worked out using the table:

Number of penalty units
Item	In this case ...	the number of penalty units is ...
1	the notice relates to a single alleged contravention of subsection 11(1) or (7) or 12B(1) or (8)	4
2	the notice relates to more than 1, but fewer than 50, alleged contraventions of subsection 11(1) or (7) or 12B(1) or (8)	the number obtained by multiplying 4 by the number of alleged contraventions
3	the notice relates to 50 or more alleged contraventions of subsection 11(1) or (7) or 12B(1) or (8)	200
4	the notice relates to a single alleged contravention of a civil penalty provision other than subsection 11(1) or (7) or 12B(1) or (8)	2
5	the notice relates to more than 1, but fewer than 50, alleged contraventions of a civil penalty provision other than subsection 11(1) or (7) or 12B(1) or (8)	the number obtained by multiplying 2 by the number of alleged contraventions
6	the notice relates to 50 or more alleged contraventions of a civil penalty provision other than subsection 11(1) or (7) or 12B(1) or (8)	100

5 Withdrawal of an infringement notice

(1) This clause applies if an infringement notice is given to a person.

(2) An authorised officer may, by written notice (the withdrawal notice) given to the person, withdraw the infringement notice.

(3) To be effective, the withdrawal notice must be given to the person within 28 days after the infringement notice was given.

Refund of penalty if infringement notice withdrawn

(4) If:

(a) the penalty specified in the infringement notice is paid; and

(b) the infringement notice is withdrawn after the penalty is paid;

the Commonwealth is liable to refund the penalty.

6 What happens if the penalty is paid

(1) This clause applies if:

(a) an infringement notice relating to one or more alleged civil contraventions is given to a person; and

(b) the penalty is paid in accordance with the infringement notice; and

(2) Any liability of the person for the alleged civil contraventions is discharged.

(3) Proceedings under Part 4 may not be brought against the person for the alleged civil contraventions.

7 Effect of this Schedule on civil proceedings

This Schedule does not:

(a) require an infringement notice to be given in relation to an alleged civil contravention; or

(b) affect the liability of a person to have proceedings under Part 4 brought against the person for an alleged civil contravention if:

(i) the person does not comply with an infringement notice relating to the contravention; or

(ii) an infringement notice relating to the contravention is not given to the person; or

(iii) an infringement notice relating to the contravention is given to the person and subsequently withdrawn; or

(c) limit the Federal Court’s or the Federal Circuit Court’s discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under Part 4 to have committed a civil contravention.

8 Appointment of authorised officer

The ACMA may, by writing, appoint a member of the staff of the ACMA as an authorised officer for the purposes of this Schedule.

9 Regulations

The regulations may make further provision in relation to infringement notices.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.

Endnote 2—Abbreviation key

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Endnote 3—Legislation history

Act	Number and year	Assent	Commencement	Application, saving and transitional provisions
Do Not Call Register Act 2006	88, 2006	30 June 2006	s 10–12, 23–40, 42–45 and Sch 1–3: 31 May 2007 (s 2(1) item 3) Remainder: 30 June 2006
Statute Law Revision Act 2010	8, 2010	1 Mar 2010	Sch 5 (item 137(a)): 1 Mar 2010 (s 2(1) item 38)	—
Do Not Call Register Legislation Amendment Act 2010	46, 2010	18 May 2010	Sch 1 (items 1–94A): 30 May 2010 (s 2(1) item 2)	Sch 1 (items 88–94A)
Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010	103, 2010	13 July 2010	Sch 6 (items 1, 51–54): 1 Jan 2011 (s 2(1) items 3, 5)	—
Acts Interpretation Amendment Act 2011	46, 2011	27 June 2011	Sch 2 (item 547) and Sch 3 (items 10, 11): 27 Dec 2011 (s 2(1) items 3, 12)	Sch 3 (items 10, 11)
Australian Charities and Not‑for‑profits Commission (Consequential and Transitional) Act 2012	169, 2012	3 Dec 2012	Sch 2 (items 179–185): 3 Dec 2012 (s 2(1) item 7))	—
Federal Circuit Court of Australia (Consequential Amendments) Act 2013	13, 2013	14 Mar 2013	Sch 1 (items 113–115): 12 Apr 2013 (s 2(1)) Sch 2 (item 1): 12 Apr 2015 (s 2(1) item 3)	—
Telecommunications Legislation Amendment (Consumer Protection) Act 2014	3, 2014	28 Feb 2014	Sch 1 (items 1–7): 1 Mar 2014	—
Statute Law Revision Act (No. 1) 2014	31, 2014	27 May 2014	Sch 8 (item 13): 24 June 2014	—
Telecommunications Legislation Amendment (Deregulation) Act 2015	38, 2015	13 Apr 2015	Sch 3 (items 1, 2): 27 Apr 2015 (s 2(1) item 5)	—
Norfolk Island Legislation Amendment Act 2015	59, 2015	26 May 2015	Sch 1 (items 98–101): 18 June 2015 (s 2(1) item 2) Sch 1 (items 184–203): 27 May 2015 (s 2(1) item 3)	Sch 1 (items 184–203)
Statute Law Revision Act (No. 1) 2016	4, 2016	11 Feb 2016	Sch 6 (item 3): 10 Mar 2016 (s 2(1) item 6)	—
Territories Legislation Amendment Act 2016	33, 2016	23 Mar 2016	Sch 5 (items 38–40): 1 July 2016 (s 2(1) item 7)	—
Communications Legislation Amendment (Deregulation and Other Measures) Act 2019	120, 2019	12 Dec 2019	Sch 6 (items 30, 34): 12 Dec 2019 (s 2(1) item 1)	Sch 6 (item 34)

Endnote 4—Amendment history

Provision affected	How affected
Part 1
s 3.....................	am No 46, 2010
s 4.....................	am No 8, 2010; No 46, 2010; No 103, 2010; No 46, 2011; No 169, 2012; No 13, 2013; No 3, 2014; No 31, 2014; No 33, 2016; No 120, 2019
s 5.....................	am No 46, 2010
s 5A....................	ad No 46, 2010
s 5B....................	ad No 46, 2010
s 8.....................	am No 33, 2016
Part 2
s 11....................	am No 46, 2010; No 3, 2014
s 12....................	am No 46, 2010; No 3, 2014
Part 2A
Part 2A..................	ad No 46, 2010
s 12A...................	ad No 46, 2010
s 12B...................	ad No 46, 2010
	am No 3, 2014
s 12C...................	ad No 46, 2010
	am No 3, 2014
Part 3
s 13....................	am No 46, 2010
s 14....................	rs No 46, 2010
s 15....................	am No 46, 2010
s 16....................	am No 46, 2010
s 17....................	am No 46, 2010; No 38, 2015
s 18....................	am No 46, 2010
s 19....................	am No 46, 2010
s 20....................	am No 46, 2010
s 21....................	am No 46, 2010
Part 4
s 23....................	am No 13, 2013
s 24....................	am No 13, 2013
s 25....................	am No 46, 2010; No 13, 2013
s 26....................	am No 13, 2013
s 28....................	am No 13, 2013
s 30....................	am No 46, 2010; No 13, 2013
s 31....................	am No 13, 2013
Part 5
s 33....................	am No 13, 2013
s 34....................	am No 13, 2013
s 35....................	am No 13, 2013
s 36....................	am No 13, 2013
s 37....................	am No 13, 2013
s 38....................	am No 13, 2013
Part 6
s 39....................	am No 46, 2010
s 41....................	am No 46, 2010
s 44....................	am No 46, 2010; No 13, 2013
s 45....................	rep No 4, 2016
Schedule 1
c 2.....................	am No 169, 2012
c 3.....................	am No 59, 2015
c 4.....................	am No 46, 2010
c 7.....................	am No 59, 2015
Schedule 1A
Schedule 1A..............	ad No 46, 2010
c 1.....................	ad No 46, 2010
c 2.....................	ad No 46, 2010
	am No 169, 2012
c 3.....................	ad No 46, 2010
	am No 59, 2015
c 4.....................	ad No 46, 2010
c 5.....................	ad No 46, 2010
c 6.....................	ad No 46, 2010
c 7.....................	ad No 46, 2010
	am No 59, 2015
Schedule 2
c 1.....................	am No 46, 2010
c 4.....................	am No 46, 2010
c 5.....................	am No 46, 2010
c 7.....................	ad No 46, 2010
Schedule 3
c 1.....................	am No 13, 2013
c 2.....................	am No 46, 2010
c 3.....................	am No 13, 2013
c 4.....................	am No 46, 2010
c 7.....................	am No 13, 2013