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A Bill for an Act to amend the law relating to unsolicited communications, and for related 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 14 Feb 2019
Introduced Senate 13 Feb 2019
Table of contents.

2016‑2017‑2018‑2019

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019

 

No.      , 2019

 

(Senator Griff)

 

 

 

A Bill for an Act to amend the law relating to unsolicited communications, and for related purposes

  

  


Contents

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

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Commonwealth Electoral Act 1918                                                                         3

Do Not Call Register Act 2006                                                                                 3

Spam Act 2003                                                                                                             9

Telecommunications Act 1997                                                                                13

 

 


A Bill for an Act to amend the law relating to unsolicited communications, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Telecommunications Legislation Amendment (Unsolicited Communications) Act 2019.

2  Commencement

             (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

Provisions

Commencement

Date/Details

1.  The whole of the Act

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Commonwealth Electoral Act 1918

1  Subsection 321D(5) (at the end of the table)

Add:

9

the communication is by voice call (within the meaning of the Do Not Call Register Act 2006)

if the call involves an actor who is performing as a person in a particular occupation or in certain circumstances—the call includes such an actor

 

2  Application provision

            The Commonwealth Electoral Act 1918, as amended by this Schedule, applies to communication that occurs after the commencement of this item.

Do Not Call Register Act 2006

3  Section 4

Insert:

charity‑contactable number: subsection 22A(1).

4  After subsection 11(3)

Insert:

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

                     (a)  the making of the call was authorised by a registered charity; and

                     (b)  the number was included on a list that was submitted by the charity under subsection 22B(1); and

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

                              (i)  the charity was informed under paragraph 22B(2)(b), in response to the submission of the list, that the number was a charity‑contactable number; or

                             (ii)  under paragraph 22B(2)(d), in response to the submission of the list, the charity was given a list that included the number.

Note 1:       A telemarketing call to a number registered on the Do Not Call Register is a designated telemarketing call if the call is authorised by a registered charity and is made to a charity‑contactable number: see clause 2A of Schedule 1.

Note 2:       A registered charity may submit a list of Australian numbers under section 22B to identify if those numbers are charity‑contactable numbers.

5  Subsection 11(6)

After “(3),”, insert “(3A),”.

6  After subsection 12B(3)

Insert:

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

                     (a)  the sending of the fax was authorised by a registered charity; and

                     (b)  the number was included on a list that was submitted by the charity under subsection 22B(1); and

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

                              (i)  the charity was informed under paragraph 22B(2)(b), in response to the submission of the list, that the number was a charity‑contactable number; or

                             (ii)  under paragraph 22B(2)(d), in response to the submission of the list, the charity was given a list that included the number.

Note 1:       A marketing fax to a number registered on the Do Not Call Register is a designated marketing fax if the fax is authorised by a registered charity and is made to a charity‑contactable number: see clause 2A of Schedule 1A.

Note 2:       A registered charity may submit a list of Australian numbers under section 22B to identify if those numbers are charity‑contactable numbers.

7  Subsection 12B(7)

After “(3),”, insert “(4),”.

8  At the end of Part 3

Add:

22A  Numbers registered on the Do Not Call Register are charity‑contactable numbers unless requested not to be

             (1)  An Australian number registered on the Do Not Call Register is a charity‑contactable number unless the entry (the number’s entry) of the number in the Do Not Call Register specifies the number is not a charity‑contactable number.

             (2)  Either:

                     (a)  the relevant account‑holder of an Australian number registered, or to be registered, on the Do Not Call Register; or

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

may request that the number’s entry specify the number is not a charity‑contactable number.

             (3)  The request:

                     (a)  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

                     (b)  must be in the applicable form, and made in the applicable manner, specified by the ACMA; and

                     (c)  if the Australian number is not registered on the Do Not Call Register—must be made with or after an application for the number to be entered on the Do Not Call Register in accordance with section 15 has been made.

             (4)  As soon as reasonably practicable after receiving the request, the ACMA or the contracted service provider (as the case may be) must specify in the number’s entry that the number is not a charity‑contactable number.

22B  Identifying charity‑contactable numbers on the Do Not Call Register

             (1)  A registered charity (the access‑seeker) that wishes to identify charity‑contactable numbers on the Do Not Call Register may submit a list of Australian numbers (which may consist of a single Australian number) 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.

Note:          A person may submit a list of Australian numbers under section 19 to identify numbers registered on the Do Not Call Register.

             (2)  If the access‑seeker submits a list, the ACMA or the contracted service provider (as the case may be) must:

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

                     (b)  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 charity‑contactable numbers; and

                     (c)  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 charity‑contactable numbers; and

                     (d)  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 that are not charity‑contactable numbers (if any).

             (3)  A submission under subsection (1) is to be made in the applicable manner (if any) specified by the ACMA.

22C  Request for a number registered on the Do Not Call Register to become a charity‑contactable number

             (1)  This section applies if:

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

                     (b)  the entry in the Do Not Call Register for the Australian number specifies (the charity‑contactable specification) that the number is not a charity‑contactable number.

             (2)  The relevant account‑holder of the Australian number, or a nominee of the relevant account‑holder, may request that the charity‑contactable specification be removed from the entry.

Note:          The effect of this request is that the Australian number will be a charity‑contactable number: see subsection 22A(1).

             (3)  The request:

                     (a)  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

                     (b)  must be in the applicable form, and made in the applicable manner, specified by the ACMA.

             (4)  As soon as reasonably practicable after receiving the request, the ACMA or the contracted service provider (as the case may be) must remove the charity‑contactable specification from the entry.

9  Clause 2 of Schedule 1 (heading)

Omit “and charities”.

10  Paragraph 2(a) of Schedule 1

Repeal the paragraph, substitute:

                     (a)  the making of the call is authorised by a government body; and

11  After clause 2 of Schedule 1

Insert:

2A  Charities

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

                     (a)  the call is made to a charity‑contactable number; and

                     (b)  the making of the call is authorised by a registered charity; and

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

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

12  Clause 2 of Schedule 1A (heading)

Omit “and charities”.

13  Paragraph 2(a) of Schedule 1A

Repeal the paragraph, substitute:

                     (a)  the making of the call is authorised by a government body; and

14  After clause 2 of Schedule 1A

Insert:

2A  Charities

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

                     (a)  the fax is sent to a charity‑contactable number; and

                     (b)  the sending of the fax is authorised by a registered charity; and

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

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

15  Application provision

(1)       The Do Not Call Register Act 2006, as amended by this Schedule, applies to a telemarketing call made, or a marketing fax sent, after the commencement of this item.

(2)       Subsection 22A(1) of the Do Not Call Register Act 2006, as inserted by this Schedule, applies in relation to an Australian number registered on the Do Not Call Register before, on or after the commencement of this item.

Spam Act 2003

16  Section 3

Omit:

•      This Act sets up a scheme for regulating commercial email and other types of commercial electronic messages.

substitute:

•      This Act sets up a scheme for regulating commercial email, other types of commercial electronic messages and electronic messages containing electoral matter.

17  Section 4

Insert:

unsubscribe message: see subsection 18(9).

18  After Part 2

Insert:

Part 2ARules about sending electronic messages containing electoral matter

  

18A  Electronic messages about electoral matter must contain a functional unsubscribe facility

             (1)  A person must not send, or cause to be sent, an electronic message that:

                     (a)  has an Australian link; and

                     (b)  contains electoral matter (within the meaning of the Commonwealth Electoral Act 1918);

unless:

                     (c)  the message includes:

                              (i)  a statement to the effect that the recipient may use an electronic address set out in the message to send an unsubscribe message to the individual or organisation who authorised the sending of the first‑mentioned message; or

                             (ii)  a statement to similar effect; and

                     (d)  the statement is presented in a clear and conspicuous manner; and

                     (e)  the electronic address is reasonably likely to be capable of receiving:

                              (i)  the recipient’s unsubscribe message (if any); and

                             (ii)  a reasonable number of similar unsubscribe messages sent by other recipients (if any) of the same message;

                            at all times during a period of at least 30 days after the message is sent; and

                      (f)  the electronic address is legitimately obtained; and

                     (g)  the electronic address complies with the condition or conditions (if any) specified in the regulations made for the purposes of paragraph 18(1)(g).

Note:          For Australian link, see section 7.

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

                     (a)  did not know; and

                     (b)  could not, with reasonable diligence, have ascertained;

that the message had an Australian link.

             (3)  Subsection (1) does not apply to the extent (if any) to which it is inconsistent with the terms of a contract or other agreement between:

                     (a)  the individual or organisation who authorised the sending of the first‑mentioned message; and

                     (b)  the relevant electronic account‑holder.

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

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

Ancillary contraventions

             (6)  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).

             (7)  A person does not contravene subsection (6) merely because the person supplies a carriage service that enables an electronic message to be sent.

Civil penalty provisions

             (8)  Subsections (1) and (6) are civil penalty provisions.

19  After clause 2 of Schedule 1

Insert:

2A  Government bodies

                   For the purposes of this Act, an electronic message is a designated commercial electronic message if:

                     (a)  the sending of the message is authorised by a government body; and

                     (b)  the message relates to goods or services; and

                     (c)  the body is the supplier, or prospective supplier, of the goods or services concerned.

20  Clause 3 of Schedule 1 (heading)

Repeal the heading, substitute:

3  Political parties and charities

21  Paragraph 3(a) of Schedule 1

Repeal the paragraph, substitute:

                     (a)  the sending of the message is authorised by a registered political party or a registered charity; and

22  At the end of clause 3 of Schedule 1

Add:

            ; and (d)  the message includes:

                              (i)  a statement to the effect that the recipient may use an electronic address set out in the message to send an unsubscribe message to the individual or organisation who authorised the sending of the first‑mentioned message; or

                             (ii)  a statement to similar effect; and

                     (e)  the statement is presented in a clear and conspicuous manner; and

                      (f)  the electronic address is reasonably likely to be capable of receiving:

                              (i)  the recipient’s unsubscribe message (if any); and

                             (ii)  a reasonable number of similar unsubscribe messages sent by other recipients (if any) of the same message;

                            at all times during a period of at least 30 days after the message is sent; and

                     (g)  the electronic address is legitimately obtained; and

                     (h)  the electronic address complies with the condition or conditions (if any) specified in the regulations made for the purposes of paragraph 18(1)(g).

23  Application provision

            The Spam Act 2003, as amended by this Schedule, applies to an electronic message sent after the commencement of this item.

Telecommunications Act 1997

24  At the end of section 125A

Add:

             (5)  If:

                     (a)  Part 2 of the Do Not Call Register Act 2006, or any provision of that Act necessary to give effect to a provision of that Part, is amended; and

                     (b)  the amendments of that Act have the effect that the standard in force at the time the amendments commence is no longer consistent with that Act;

the ACMA must, within 30 days of the commencement of the amendments to that Act, ensure that the standard is amended, or a new standard is determined, that takes into account the amendments of that Act.

25  At the end of section 125B

Add:

             (6)  If:

                     (a)  Part 2A of the Do Not Call Register Act 2006, or any provision of that Act necessary to give effect to a provision of that Part, is amended; and

                     (b) the amendments of that Act have the effect that the standard in force at the time the amendments commence is no longer consistent with that Act;

the ACMA must, within 30 days of the commencement of the amendments to that Act, ensure that the standard is amended, or a new standard is determined, that takes into account the amendments of that Act.