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 Spam Amendment (Unsolicited Political Communications) Act 2021.
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Note: This table relates only to the provisions of this Act as originally enacted.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Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1—Amendments
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.
Spam Act 2003
3 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.
4 Section 4 (after paragraph (c) of the definition of civil penalty provision)
Insert:
(ca) subsections 18A(1) and (6);
5 Section 4
Insert:
unsubscribe message: see subsection 18(9).
6 After Part 2
Insert:
Part 2A—Rules 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.
Note: A defendant bears an evidential burden in relation to the matter in subsections (2), (3) and (4): see subsection 13.3(3) of the Criminal Code.
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.
7 After clause 2 of Schedule 1
Insert:
2A Government bodies and charities
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:
(i) a government body; or
(ii) a registered charity; 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.
8 Clause 3 of Schedule 1 (heading)
Repeal the heading, substitute:
3 Political parties
9 Paragraph 3(a) of Schedule 1
Repeal the paragraph, substitute:
(a) the sending of the message is authorised by a registered political party; and
10 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).
11 Application provision
The Spam Act 2003, as amended by this Schedule, applies to an electronic message sent after the commencement of this item.