Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to establish a Do Not Knock Register, and for other purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 21 May 2012
Introduced HR 21 May 2012

2010‑2011‑2012

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Do Not Knock Register Bill 2012

 

No.      , 2012

 

(Mr Georganas)

 

 

 

A Bill for an Act to establish a Do Not Knock Register, and for other purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

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

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

3............ Simplified outline................................................................................ 2

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

5............ Meaning of marketing call.................................................................. 5

6............ Crown to be bound............................................................................. 6

7............ Extension to external Territories.......................................................... 7

Part 2—Rules about making marketing calls                                                       8

8............ Unsolicited marketing calls must not be made to an address registered on the Do Not Knock Register   8

9............ Agreements for the making of marketing calls must require compliance with this Act             10

Part 3—Do Not Knock Register                                                                                 12

10.......... Do Not Knock Register..................................................................... 12

11.......... Applications...................................................................................... 12

12.......... Inclusion on Register........................................................................ 12

13.......... Period of inclusion............................................................................ 13

14.......... Access to Register............................................................................. 13

Part 4—Civil penalties                                                                                                       14

15.......... Civil penalty orders........................................................................... 14

16.......... Maximum penalties for contravention of civil penalty provisions..... 14

17.......... 2 or more proceedings may be heard together................................... 17

18.......... Time limit for application for an order............................................... 17

19.......... Civil evidence and procedure rules for civil penalty orders............... 17

20.......... Ancillary orders—compensation....................................................... 18

21.......... Ancillary orders—recovery of financial benefit................................ 18

22.......... Infringement notices.......................................................................... 19

Part 5—Injunctions                                                                                                             20

23.......... Injunctions........................................................................................ 20

24.......... Interim injunctions............................................................................ 20

25.......... Discharge etc. of injunctions............................................................. 21

26.......... Certain limits on granting injunctions not to apply............................ 21

27.......... Other powers of the Federal Court or the Federal Magistrates Court unaffected      22

Part 6—Miscellaneous                                                                                                       23

28.......... Nominees.......................................................................................... 23

29.......... Formal warnings—breach of civil penalty provision........................ 23

30.......... Additional Registrar functions.......................................................... 23

31.......... Operation of State and Territory laws............................................... 24

32.......... Implied freedom of political communication..................................... 24

33.......... Review of operation of Act............................................................... 24

34.......... Making complaints and investigating contraventions........................ 24

35.......... Delegation......................................................................................... 24

36.......... Regulations....................................................................................... 25

Schedule 1—Designated marketing calls                                             26

1............ Object................................................................................................ 26

2............ Government bodies, religious organisations and charities................. 26

3............ Political parties, independent members of parliament, candidates etc. 26

4............ Educational institutions..................................................................... 28

5............ Regulations....................................................................................... 29

6............ Authorising the making of marketing calls........................................ 29

Schedule 2—Consent                                                                                                30

1............ Object................................................................................................ 30

2............ Basic definition................................................................................. 30

3............ Duration of express consent.............................................................. 30

4............ Consent may not be inferred from the publication of an address....... 30

5............ Regulations about consent................................................................. 31

Schedule 3—Infringement notices                                                              32

1............ Object................................................................................................ 32

2............ When an infringement notice can be given........................................ 32

3............ Matters to be included in an infringement notice............................... 32

4............ Amount of penalty............................................................................ 33

5............ Withdrawal of an infringement notice............................................... 35

6............ What happens if the penalty is paid................................................... 35

7............ Effect of this Schedule on civil proceedings...................................... 36

8............ Regulations....................................................................................... 36

Schedule 4—Making complaints and investigating contraventions             37

1............ Object................................................................................................ 37

2............ Complaints to the Registrar............................................................... 37

3............ Obtaining information and documents.............................................. 37

4............ Use of documents............................................................................. 38

5............ Reasonable compensation for copying documents............................ 39

6............ Self‑incrimination.............................................................................. 39

7............ Decision not to investigate complaint—persons to be informed........ 39

8............ Protection from civil actions.............................................................. 40

 


A Bill for an Act to establish a Do Not Knock Register, and for other purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Do Not Knock Register Act 2012.

2  Commencement

                   This Act commences on the day after this Act receives the Royal Assent.

3  Simplified outline

                   The following is a simplified outline of this Act:

•      Unsolicited marketing calls must not be made to an address registered on the Do Not Knock Register.

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

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

•      Proceedings for civil penalties and injunctions may be instituted by the Registrar in the Federal Court or the Federal Magistrates Court.

4  Definitions

                   In this Act:

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.

authorise, when used in relation to the making of a marketing call, has a meaning affected by clause 6 of Schedule 1.

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

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.

cause, when used in relation to the making of a marketing call, has a meaning affected by subsection 8(8).

civil penalty order has the meaning given by subsection 15(2).

civil penalty provision means any of the following provisions:

                     (a)  subsection 8(1);

                     (b)  subsection 8(7);

                     (c)  subsection 9(1);

                     (d)  subsection 9(2).

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

designated marketing call has the meaning given by Schedule 1.

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

Do Not Knock Register means the register kept under section 10.

educational institution includes:

                     (a)  a pre‑school; and

                     (b)  a school; and

                     (c)  a college; and

                     (d)  a university.

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.

Federal Court means the Federal Court of Australia.

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

                     (c)  a department of the government of a foreign country; 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 given under clause 2 of Schedule 3.

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 call has the meaning given by section 5.

mistake means reasonable mistake of fact.

nominee has the meaning given by section 28.

occupier, in relation to an address or making a marketing call to an address, means the occupier of the premises at the address.

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.

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

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.

Registrar means the APS employee appointed by the Minster as the Registrar for the purposes of this Act.

respondent, in relation to a complaint made to the Registrar, has the meaning given by subclause 2(3) of Schedule 4.

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

                     (c)  when used in relation to an interest in land—includes transfer or create.

5  Meaning of marketing call

             (1)  A marketing call is a visit covered by subsections (2) and (3).

             (2)  The visit is made:

                     (a)  by, on behalf of, or for the benefit of, a corporation to which paragraph 51(xx) of the Constitution applies; or

                     (b)  as part of, in relation to, or in connection with, trade and commerce:

                              (i)  between Australia and places outside Australia; or

                             (ii)  among the States; or

                            (iii)  within a Territory, between a State and a Territory or between 2 Territories; or

                     (c)  in connection with the use of a postal, telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution.

             (3)  The purpose, or one of the purposes, of the visit is:

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

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

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

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

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

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

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

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

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

                      (j)  to solicit donations; or

                     (k)  a purpose prescribed by the regulations.

             (4)  For the purposes of paragraphs (3)(a) to (i), it is immaterial whether:

                     (a)  the goods, services, land, interest or opportunity exists; or

                     (b)  it is lawful to acquire the goods, services, land or interest or take up the opportunity.

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

6  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.

7  Extension to external Territories

                   This Act extends to:

                     (a)  the Territory of Christmas Island; and

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

                     (c)  such other external Territories (if any) as are prescribed by the regulations.


 

Part 2Rules about making marketing calls

  

8  Unsolicited marketing calls must not be made to an address registered on the Do Not Knock Register

             (1)  A person must not make, or cause to be made, a marketing call to an address if:

                     (a)  the address is entered on the Do Not Knock Register; and

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

Note 1:       This subsection is a civil penalty provision. Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Note 2:       For designated marketing call, see Schedule 1.

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

                     (a)  the occupier; or

                     (b)  a nominee of the occupier;

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 28.

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

                     (a)  the address was included on a list that was submitted by the person under subsection 14(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 14(2)(a) in response to the submission of the list, but that information did not state that the address was entered on the Do Not Knock Register; or

                             (ii)  the person was informed under paragraph 14(2)(b), in response to the submission of the list, that the address was not entered on the Do Not Knock Register; or

                            (iii)  under paragraph 14(2)(c), in response to the submission of the list, the person was given a list that included the address.

Note:          Section 14 deals with access to the Do Not Knock 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

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

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

Note:          This subsection is a civil penalty provision. Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Extended meaning of cause

             (8)  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

                     (b)  under the contract, arrangement or understanding, the other person undertakes to make, or to cause any or all of the employees or agents of the other person to make, marketing calls; 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 marketing call;

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

             (9)  Paragraph (8)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.

9  Agreements for the making of marketing 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)  under the contract, arrangement or understanding, the other person undertakes to:

                              (i)  make marketing calls; or

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

                     (b)  there is a reasonable likelihood that some or all of those calls will be made to addresses that, under section 12, are eligible to be entered on the Do Not Knock Register; and

                     (c)  the contract, arrangement or understanding does not contain an express provision to the effect that the other person will comply with this Act in relation to the making of marketing calls covered by the contract, arrangement or understanding.

Note:          This subsection is a civil penalty provision. Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

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

                     (c)  be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or

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

Note:          This subsection is a civil penalty provision. Part 4 provides for pecuniary penalties for breaches of civil penalty provisions.

Validity of contracts, arrangements or understandings

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


 

Part 3Do Not Knock Register

  

10  Do Not Knock Register

             (1)  The Registrar must keep a register of addresses for the purposes of this Act.

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

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

             (4)  The register is not a legislative instrument.

             (5)  The Registrar 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 Knock Register is to facilitate the prohibition, under section 8, of unsolicited marketing calls (other than designated marketing calls).

11  Applications

             (1)  An occupier or nominee of an occupier may apply for an address to be entered on the Do Not Knock Register.

Note:          For the meaning of nominee, see section 28.

             (2)  The application must be made in the manner and form (if any) prescribed by the regulations.

12  Inclusion on Register

                   The Registrar must enter the address on the Do Not Knock Register if the Registrar is satisfied that the premises at the address:

                     (a)  are used or maintained primarily for:

                              (i)  private or domestic purposes; or

                             (ii)  use by a government body; or

                     (b)  are premises of a kind prescribed by the regulations.

13  Period of inclusion

             (1)  The address is to remain on the Do Not Knock Register for:

                     (a)  3 years; or

                     (b)  such longer period as is prescribed by the regulations.

             (2)  The address may be removed from the Do Not Knock Register, before the end of that period:

                     (a)  at the request of the occupier or nominee; or

                     (b)  in accordance with the regulations.

             (3)  This section does not prevent an address from being re‑entered on the Do Not Knock Register.

14  Access to Register

             (1)  A person may submit a list of addresses to the Registrar. The list may consist of a single address.

             (2)  If the person has paid the fee (if any) prescribed by the regulations, the Registrar must check the addresses on the list against the Do Not Knock Register, and do whichever of the following has been requested by the person:

                     (a)  inform the person of which addresses (if any) on the person’s list are entered on the Do Not Knock Register;

                     (b)  inform the person of which addresses (if any) on the person’s list are not entered on the Do Not Knock Register; and

                     (c)  return the list, modified by the deletion of the addresses (if any) entered on the Do Not Knock Register.

             (3)  The list is to be submitted in the manner and form (if any) prescribed by the regulations.


 

Part 4Civil penalties

  

15  Civil penalty orders

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

             (2)  An order under subsection (1) is 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

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

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

Civil enforcement of penalty

             (4)  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.

16  Maximum penalties for contravention of civil penalty provisions

             (1)  The maximum penalty payable under subsection 15(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

                     (c)  whether the civil penalty provision is subsection 8(1) or (7), or another civil penalty provision.

Prior record

             (2)  If:

                     (a)  on a particular day (the first day), the Federal Court or the Federal Magistrates 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 15(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 15(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 8(1) or (7)—100 penalty units; or

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

                     (b)  if the Federal Court or the Federal Magistrates 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 15(1) by the body corporate in respect of those contraventions must not exceed:

                              (i)  if the civil penalty provision is subsection 8(1) or (7)—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 15(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 8(1) or (7)—20 penalty units; or

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

                     (b)  if the Federal Court or the Federal Magistrates 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 15(1) by the person in respect of those contraventions must not exceed:

                              (i)  if the civil penalty provision is subsection 8(1) or (7)—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 15(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 8(1) or (7)—500 penalty units; or

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

                     (b)  if the Federal Court or the Federal Magistrates 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 15(1) by the body corporate in respect of those contraventions must not exceed:

                              (i)  if the civil penalty provision is subsection 8(1) or (7)—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 15(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 8(1) or (7)—100 penalty units; or

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

                     (b)  if the Federal Court or the Federal Magistrates 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 15(1) by the person in respect of those contraventions must not exceed:

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

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

17  2 or more proceedings may be heard together

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

18  Time limit for application for an order

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

19  Civil evidence and procedure rules for civil penalty orders

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

20  Ancillary orders—compensation

             (1)  If:

                     (a)  in one or more proceedings under section 15, the Federal Court or the Federal Magistrates 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 Registrar 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 8 in relation to the making of one or more marketing 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;

                     (c)  any damage to the reputation of the victim’s business that is attributable to dealing with the calls;

                     (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.

             (3)  The Federal Court or the Federal Magistrates 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.

21  Ancillary orders—recovery of financial benefit

             (1)  If:

                     (a)  in one or more proceedings under section 15, the Federal Court or the Federal Magistrates 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 Registrar, 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 Magistrates 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.

22  Infringement notices

                   Schedule 3 has effect.


 

Part 5Injunctions

  

23  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 Magistrates Court may, on the application of the Registrar, 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 Magistrates Court may, on the application of the Registrar, grant an injunction requiring the person to do that act or thing.

24  Interim injunctions

Grant of interim injunction

             (1)  If an application is made to the Federal Court or the Federal Magistrates Court for an injunction under section 23, 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 Magistrates Court is not to require an applicant for an injunction under section 23, as a condition of granting an interim injunction, to give any undertakings as to damages.

25  Discharge etc. of injunctions

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

26  Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the Federal Court or the Federal Magistrates 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 Magistrates 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.

27  Other powers of the Federal Court or the Federal Magistrates Court unaffected

                   The powers conferred on the Federal Court or the Federal Magistrates 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 6Miscellaneous

  

28  Nominees

Nomination by occupier

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

                     (a)  the occupier has nominated an individual in relation to the address; and

                     (b)  the nomination has not been withdrawn;

the individual is a nominee of the occupier.

             (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 address.

Deemed nominee

             (4)  The regulations may provide that, for the purposes of the application of this Act to an address, an individual is taken to be a nominee of the occupier in the circumstances prescribed by 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.

29  Formal warnings—breach of civil penalty provision

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

30  Additional Registrar functions

                   The Registrar has the following functions:

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

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

31  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.

32  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.

33  Review of operation of Act

             (1)  The Minister must cause to be conducted a review of the operation of this Act:

                     (a)  before the end of the period of 3 years after the commencement of this section; or

                     (b)  as soon as practicable after the end of that 3‑year period.

             (2)  The Minister must cause a report of the review to be tabled in each House of the Parliament within 15 sittings days of that House after the completion of the preparation of the report.

34  Making complaints and investigating contraventions

                   Schedule 4 has effect.

35  Delegation

                   The Registrar may, by writing, delegate all or any of his or her functions and powers under this Act to:

                     (a)  another APS employee in the Department; or

                     (b)  a person prescribed by the regulations.

36  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 1Designated marketing calls

Note:       See section 4.

  

  

1  Object

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

Note:          Designated marketing calls are exempt from section 8 (unsolicited marketing calls must not be made to an address entered on the Do Not Knock Register).

2  Government bodies, religious organisations and charities

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

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

                              (i)  a government body;

                             (ii)  a religious organisation;

                            (iii)  a charity or charitable institution; and

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

                     (c)  the call is not of a kind prescribed by the regulations.

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

Political parties

             (1)  For the purposes of this Act, a marketing call is a designated marketing 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 prescribed in the regulations.

Independent members of parliament etc.

             (2)  For the purposes of this Act, a marketing call is a designated marketing 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

                             (v)  the Legislative Assembly of Norfolk Island; 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 prescribed in the regulations.

Candidates

             (3)  For the purposes of this Act, a marketing call is a designated marketing 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

                            (vi)  the Legislative Assembly of Norfolk Island; 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 prescribed in the regulations.

4  Educational institutions

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

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

                     (b)  the call is made to an address that is used or maintained primarily for the private or domestic purposes of the occupier and/or members of the occupier’s household; and

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

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

                             (ii)  a member or former member of the occupier’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 prescribed in the regulations.

5  Regulations

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

6  Authorising the making of marketing calls

                   For the purposes of this Schedule, if:

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

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

then:

                     (c)  the organisation is taken to authorise the making of the call; and

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


 

Schedule 2Consent

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 marketing call.

Note:          The concept of consent is relevant to section 8 (unsolicited marketing calls must not be made to an address entered on the Do Not Knock 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 address

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

                     (a)  the occupier; or

                     (b)  a nominee of the occupier;

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

5  Regulations about consent

                   The regulations may provide that, for the purposes of the application of this Act to an address, the consent of:

                     (a)  the occupier; or

                     (b)  a nominee of the occupier;

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


 

Schedule 3Infringement notices

Note:       See section 22.

  

  

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 Magistrates Court.

2  When an infringement notice can be given

             (1)  If the Registrar 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 Registrar 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 contraventions are alleged to have taken place.

             (3)  Subclause (2) does not apply to a contravention of subsection 9(1) or (2).

Note 1:       Section 9 deals with agreements for the making of marketing calls.

             (4)  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 contact details for the Registrar (or delegate); and

                     (c)  set out brief details of each of the alleged 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 Magistrates Court if the penalty specified in the notice is paid to the Registrar, on behalf of the Commonwealth, within:

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

                             (ii)  if the Registrar 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 prescribed 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 contravention:

                     (a)  the date of the alleged contravention;

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

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 8(1) or (7)

20

2

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

the number obtained by multiplying 20 by the number of alleged contraventions

3

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

1,000

4

the notice relates to a single alleged contravention of a civil penalty provision other than subsection 8(1) or (7)

10

5

the notice relates to more than 1, but fewer than 50, alleged contraventions of a civil penalty provision other than subsection 8(1) or (7)

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 8(1) or (7)

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 8(1) or (7)

4

2

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

the number obtained by multiplying 4 by the number of alleged contraventions

3

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

200

4

the notice relates to a single alleged contravention of a civil penalty provision other than subsection 8(1) or (7)

2

5

the notice relates to more than 1, but fewer than 50, alleged contraventions of a civil penalty provision other than subsection 8(1) or (7)

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 8(1) or (7)

100

5  Withdrawal of an infringement notice

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

             (2)  The Registrar 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 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 contraventions is discharged.

             (3)  Proceedings under Part 4 may not be brought against the person for the alleged 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 contravention; or

                     (b)  affect the liability of a person to have proceedings under Part 4 brought against the person for an alleged 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 Magistrates 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 contravened a civil penalty provision.

8  Regulations

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


 

Schedule 4Making complaints and investigating contraventions

Note:       See section 34.

  

  

1  Object

                   The object of this Schedule is to provide a complaints process and investigation powers for use in relation to contraventions of this Act.

2  Complaints to the Registrar

             (1)  A person may complain to the Registrar about a contravention of this Act.

             (2)  The complaint must be in writing.

             (3)  The complaint must specify, as the respondent in respect of the complaint, the person against whom the complaint is made.

             (4)  The Registrar must take reasonable steps to provide appropriate assistance to the person making the complaint if it appears to the Registrar that the person making the compliant requires assistance to formulate the complaint or to reduce it to writing.

             (5)  Before beginning to investigate the complaint, the Registrar must inform the respondent that the complaint is to be investigated.

3  Obtaining information and documents

             (1)  This section applies if the Registrar has reason to believe that a person has information or a document that is relevant to the investigation of a contravention of this Act.

             (2)  The Registrar may, by written notice given to the person, require the person to give the Registrar the information or document (or a copy of the document).

             (3)  The person must comply with the requirement within the period and in the way specified in the notice.

             (4)  The notice must set out the effect of subclause (5).

             (5)  The person commits an offence if:

                     (a)  the Registrar has given the person a notice under subclause (2); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a requirement in the notice.

Penalty:  20 penalty units.

             (5)  In this clause:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

4  Use of documents

             (1)  The Registrar may inspect a document or copy produced by the person.

             (2)  If the document is not a copy:

                     (a)  the Registrar may:

                              (i)  take, and retain the document for as long as is necessary; and

                             (ii)  make and retain copies of, or take and retain extracts from, the document; and

                     (b)  the person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Registrar to be a true copy; and

                     (c)  the certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (3)  Until a certified copy is supplied, the Registrar must, at such times and places as the Registrar thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

             (4)  If the document is a copy, the Registrar may retain possession of the copy.

5  Reasonable compensation for copying documents

                   The person is entitled to be paid reasonable compensation by the Registrar for making copies required by the Registrar.

6  Self‑incrimination

             (1)  An individual is not excused from giving information or evidence or producing a document or a copy of a document under clause 3 on the ground that the information or evidence or the production of the document or copy might tend to incriminate the individual or expose the individual to a penalty.

             (2)  However:

                     (a)  giving the information or evidence or producing the document or copy; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or evidence or producing the document or copy;

is not admissible in evidence against the individual in criminal proceedings other than proceedings under, or relating to, this Act.

7  Decision not to investigate complaint—persons to be informed

             (1)  If the Registrar decides not to investigate, or further investigate, a complaint, the Registrar must, as soon as practicable and in such manner as the Registrar thinks fit, inform the complainant and the respondent of the decision and of the reasons for the decision.

             (2)  After completing an investigation, the Registrar must, as soon as practicable and in such manner as the Registrar thinks fit, inform the complainant and the respondent of the outcome of the investigation.

8  Protection from civil actions

                   Civil proceedings do not lie against a person in respect of loss, damage or injury of any kind suffered by another person because of any of the following acts done in good faith:

                     (a)  the making of a complaint to the Registrar;

                     (b)  the giving of information or a document to the Registrar in connection with the investigation of a contravention of this Act.