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A Bill for an Act to protect residential telephone subscribers' right to avoid receiving telephone solicitations to which they object, and for related purposes
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Registered 03 Nov 2005
Introduced HR 31 Oct 2005

2004-2005

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Bill 2005

 

No.      , 2005

 

(Ms A. E. Burke)

 

 

 

A Bill for an Act to protect residential telephone subscribers’ right to avoid receiving telephone solicitations to which they object, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Purpose............................................................................................... 2

4............ Definitions.......................................................................................... 2

5............ Crown to be bound............................................................................. 3

Part 2—Establishment of ‘Do not call’ register                                                     5

6............ Additional ACCC functions............................................................... 5

7............ Prohibition on certain telephone solicitations.................................... 5

8............ Prohibition on interference with a person’s right to be placed on ‘Do not call’ register         6

9............ Prohibition on non-authorised use of ‘Do not call’ register............... 6

10.......... Circumstances under which seller or telemarketer not liable for violating certain offence provisions     7

Part 3—Civil Penalties                                                                                                         8

11.......... Pecuniary penalties for contravention of civil penalty provisions..... 8

12.......... Civil action for recovery of pecuniary penalties................................ 9

13.......... Criminal proceedings not to be brought for contravention of civil penalty provisions           9

14.......... Schedule 1 (infringement notices)....................................................... 9

Part 4—Miscellaneous                                                                                                       10

15.......... Formal warnings—breach of civil penalty provisions...................... 10

16.......... Operation of State and Territory laws............................................. 10

17.......... Implied freedom of political communication.................................... 10

18.......... Administration of Act...................................................................... 10

19.......... Regulations....................................................................................... 10

Schedule 1—Infringement notices                                                                               11

1............ Object............................................................................................... 11

2............ Definitions........................................................................................ 11

3............ When an infringement notice can be given........................................ 11

4............ Matters to be included in an infringement notice............................. 12

5............ Amount of penalty........................................................................... 12

6............ Withdrawal of an infringement notice............................................... 14

7............ What happens if the penalty is paid................................................ 14

8............ Effects of this Schedule on civil proceedings.................................... 15

9............ Appointment of authorised person.................................................. 15

 


A Bill for an Act to protect residential telephone subscribers’ right to avoid receiving telephone solicitations to which they object, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Telemarketing (Protection of Privacy Rights of Residential Telephone Subscribers) Act 2005.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Purpose

                   The purpose of this Act is:

(a)    to require the ACCC to establish and maintain a list of telephone numbers of residential subscribers who request not to receive telephone solicitations, and to make the list and parts thereof available for purchase;

(b)    to prohibit any person from making or causing to make a telephone solicitation to the telephone number of any person included in the list maintained by the ACCC;

(c)    to prohibit any person from making or causing to make a telephone solicitation to any person at any time on a Sunday or on a public holiday, or between midnight and 9.00 am or between 8.00 pm and midnight, on any other day.

4.  Definitions

In this Act, unless the contrary intention appears:

ACCC means the Australian Competition and Consumer Commission.

civil penalty provision means any of the following provisions:

                     (a)  subsection 7(1) and (3);

                     (b)  subsection 8(1);

                     (c)  subsection 9(1).

‘Do not call’ register means the list of telephone numbers established under section 6.

established business relationship means a relationship between a seller and a consumer based on:

(a)    the consumer’s purchase, rental or lease of the seller’s goods or services or a financial transaction between the consumer and seller within the eighteen months immediately preceding the date of a telemarketing call; or

(b)    the consumer’s inquiry or application regarding a product or service offered by the seller within three months immediately preceding the date of a telemarketing call.

organisation includes:

(a)    a body corporate; and

(b)    a partnership; and

(c)    a government body; 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:          Paragraph 22(1)(a) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual.

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

person includes a partnership

telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, which is transmitted to any person.

telemarketer means a person who engages in telemarketing.

telemarketing means a plan, program or campaign which is conducted to induce purchase of goods or services by use of one or more telephones and which involves one or more telephone calls.

5  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.


Part 2Establishment of ‘Do not call’ register

6  Additional ACCC functions

                   The ACCC must:

(a)    establish and maintain a list of telephone numbers of residential subscribers who request not to receive telephone solicitations;

(b)    provide notice to subscribers of the establishment of the list;

(c)    make the list and parts thereof available for purchase by persons desiring to make or cause to be made telephone solicitations; and

(d)    protect the privacy rights of persons whose telephone numbers are included in the list.  

7  Prohibition on certain telephone solicitations

             (1)  A person must not make or cause to be made a telephone solicitation to a person when that person’s telephone number is included in the ‘Do not call’ register, unless the seller whose goods or services are being offered:

                     (a)  has obtained the express agreement, in writing, of such person to place calls to that person; or

                     (b)  has an established business relationship with the person, and that person has not stated that he or she does not wish to receive outbound telephone calls made by or on behalf of the seller.

             (2)  The written agreement referred to in paragraph 1(a) shall clearly evidence such person’s authorisation that calls made by or on behalf of the seller may be placed to that person, and shall include the telephone number to which the calls may be placed and the signature of that person.

             (3)  A person must not make or cause to be made a telephone solicitation to a person:

                     (a)  at any time on a public holiday; or

                     (b)  at any time on a Sunday; or

                     (c)  on any other day:

                              (i)  between midnight and 9.00 am; or

                             (ii)  between 8.00 pm and midnight.  

             (4)  The times referred to in subsection (3) are local time, at the time of the person receiving the telephone call.

Civil penalty provisions

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

Note:          Part 3 provides for pecuniary penalties for breaches of civil penalty provisions.    

8  Prohibition on interference with a person’s right to be placed on ‘Do not call’ register

             (1)  A person must not deny or interfere in any way, directly or indirectly, with a person’s right to have his or her telephone number placed on the ‘Do not call’ register.

Civil penalty provisions

             (2)  Subsection (1) is a civil penalty provision.

Note:          Part 3 provides for pecuniary penalties for breaches of civil penalty provisions.    

9  Prohibition on non-authorised use of ‘Do not call’ register

             (1)  A person must not sell, rent, lease, purchase or use the ‘Do not call’ register for any purpose except compliance with the provisions of this Act.

Civil penalty provisions

             (2)  Subsection (1) is a civil penalty provision.

Note:          Part 3 provides for pecuniary penalties for breaches of civil penalty provisions.    

10  Circumstances under which seller or telemarketer not liable for violating certain offence provisions

                   A seller or telemarketer will not be liable for violating subsection 7 (1) or (3) or 8 (1) if it can demonstrate that, as part of the seller’s or telemarketer’s routine business practice:

                     (a)  it has established and implemented written procedures to comply with sections 7 and 8;

                     (b)  it has trained its personnel, and any entity assisting in its compliance, in the procedures referred to in paragraph (a);

                     (c)  the seller or telemarketer uses a process to prevent telemarketing to any telephone number on the ‘Do not call’ register employing a version of the register obtained from the ACCC no more than three months prior to the date any call is made, and maintains records documenting this process;

                     (d)  the seller or telemarketer or another person acting on behalf of the seller, monitors and enforces compliance with the procedures established under paragraph (a); and

                     (e)  any subsequent call otherwise violating subsection 7 (1) or (3) or 8 (1) is the result of error.

 


 

Part 3Civil Penalties

11  Pecuniary penalties for contravention of civil penalty provisions

             (1)  If the Federal Court is satisfied that a person has contravened a civil penalty provision, the Court may order the person to pay to the Commonwealth such pecuniary penalty, in respect of each contravention, as the Court determines to be appropriate.

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

                     (a)  the nature and extent of the contravention;

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

                     (c)  the circumstances in which the contravention took place;

                     (d)  whether the person has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.

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

                     (a)  if the civil penalty provision is subsection 7(1) or (3) or 8(1)—20 penalty units; or

                     (b)  if the civil penalty provision is subsection 9(1)—40 penalty units.

             (4)  The pecuniary penalty payable under subsection (1) by a person other than a body corporate in respect of a contravention of the civil penalty provision must not exceed:

                     (a)  if the civil penalty provision is subsection 7(1) or (3) or 8(1)—5 penalty units; or

                     (b)  if the civil penalty provision is subsection 9(1)—10 penalty units.

12  Civil action for recovery of pecuniary penalties

             (1)  The ACCC may institute a proceeding in the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary penalty referred to in section 11.

             (2)  A proceeding under subsection (1) may be commenced within 6 years after the contravention.

             (3)  The Federal Court may direct that 2 or more proceedings under subsection (1) are to be heard together.

13  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.

14  Schedule 1 (infringement notices)

                   Schedule 1 has effect.


Part 4Miscellaneous

15  Formal warnings—breach of civil penalty provisions

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

16  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.

17  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.

18  Administration of Act

                   Expenditure by the ACCC in administration of this Act is to be funded from funds appropriated by the Parliament for the operation of the ACCC.

19  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 1Infringement notices

  

Note:       See section 15.

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.

2  Definitions

In this Schedule:

authorised person means:

(a)    the Chair of the ACCC; or

(b)    a member of the staff of the ACCC appointed under clause 9.

civil contravention means a contravention of a civil penalty provision

infringement notice means an infringement notice under clause 3.

3  When an infringement notice can be given

             (1)  If an authorised person 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 person 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.

             (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.

4  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 person who gave the notice; and

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

                     (d)  contain a statement to the effect that the matter or matters will not be dealt with by the Federal Court if the penalty specified in the notice is paid to the ACCC, on behalf of the Commonwealth, within 28 days after the notice is given;

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

             (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.

5  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 7(1) or (3) or subsection 8(1)

5

2

the notice relates to more than 1, but fewer than 50, alleged contraventions of subsection 7(1) or (3) or subsection 8(1)

The number obtained by multiplying 5 by the number of alleged contraventions

3

the notice relates to 50 or more alleged contraventions of subsection 7(1) or (3) or subsection 8(1)

500

4

The notice relates to a single alleged contravention of subsection 9(1)

10

5

The notice relates to more than 1, but fewer than 50, alleged contraventions of subsection 9(1)

The number obtained by multiplying 10 by the number of alleged contraventions

6

The notice relates to 50 or more alleged contraventions of subsection 9(1)

1,000

 

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 7(1) or (3) or subsection 8(1)

1

2

the notice relates to more than 1, but fewer than 50, alleged contraventions of subsection 7(1) or (3) or subsection 8(1)

The number obtained by multiplying 1 by the number of alleged contraventions

3

the notice relates to 50 or more alleged contraventions of subsection 7(1) or (3) or subsection 8(1)

100

4

The notice relates to a single alleged contravention of subsection 9(1)

2

5

The notice relates to more than 1, but fewer than 50, alleged contraventions of subsection 9(1)

The number obtained by multiplying 2 by the number of alleged contraventions

6

The notice relates to 50 or more alleged contraventions of subsection 9(1)

200

6  Withdrawal of an infringement notice

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

             (2)  An authorised person 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.

7  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

                     (c)  the infringement notice is not withdrawn.

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

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

8  Effects 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 3 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 discretion to determine the amount of a penalty to be imposed on a person who is found in proceedings under Part 3 to have committed a civil contravention.

9  Appointment of authorised person

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