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Determinations/Communications as made
This Determination amends the Do Not Call Register (Administration and Operation) Determination 2007 to make changes of a minor nature, to facilitate the efficient processing of applications relating to 21 or more numbers (bulk applications), and to remove detailed procedural requirements and restrictions that limit the flexibility of the ACMA to make available to applicants different methods by which they can apply for registration, checking and correction of registration, and removal of numbers from the Register.
Administered by: Broadband, Communications and the Digital Economy
Registered 27 Jan 2012
Tabling HistoryDate
Tabled HR07-Feb-2012
Tabled Senate07-Feb-2012
Date of repeal 09 Aug 2013
Repealed by Broadband, Communications and the Digital Economy (Spent and Redundant Instruments) Repeal Regulation 2013

Explanatory Statement

 

Issued by the authority of the Australian Communications and Media Authority

DO NOT CALL REGISTER (ADMINISTRATION AND OPERATION) AMENDMENT DETERMINATION 2012 (No. 1)

Do Not Call Register Act 2006

Background, purpose and legislative basis

This document provides an explanation of the Do Not Call Register (Administration and Operation) Amendment Determination 2012 (No.1) (the Amendment Determination) made under subsection 18(1) of the Do Not Call Register Act 2006 (the Act).

The Act requires the ACMA to keep, or to arrange for another person (the contracted service provider) to keep, the Do Not Call Register (the Register).  Subsection 18(1) of the Act allows the ACMA to make a determination dealing with a number of issues related to the administration and operation of the Register.

On 27 April 2007, the ACMA made the Do Not Call Register (Administration and Operation) Determination 2007 (the Determination).  The Determination, among other things, sets out the manner in which applications may be made for:

·        registration of a number on the Register;

·        corrections of entries on the Register; and

·        removal of entries from the Register.

The Amendment Determination makes changes of a minor nature, to facilitate the efficient processing of applications relating to 21 or more numbers (bulk applications), and to remove detailed procedural requirements and restrictions that limit the flexibility of the ACMA to make available to applicants different methods by which they can apply for registration, checking and correction of registration, and removal of numbers from the Register.  Detailed procedural requirements, including, for example, the address to which postal applications should be addressed, and the types of supporting evidence required in relation to a particular application (if applicable), will be set out in a procedure that will be made available on the ACMA website and that of the contracted service provider.  The Determination will provide that applicants will be required to comply with procedures specified in respect of application methods as in force from time to time.

In accordance with section 589 of the Telecommunications Act 1997, a legislative instrument made under the Act may incorporate a matter contained in any other instrument or writing as in force or existing from time to time. 

Consultation

The amendments made by the Amendment Determination are changes of a minor and machinery nature and do not substantially alter the existing arrangements under the Determination. Accordingly, the ACMA considers that consultation is unnecessary in the circumstances.

 

 

 

Regulatory impact

 

The Office of Best Practice Regulation (OBPR) has determined that the proposed regulatory change in this submission is minor or machinery in nature and has therefore verified that no further regulatory impact analysis is required

 

Notes on the instrument

 

Section 1 – Name of Determination

 

Section 1 provides that the Amendment Determination is the Do Not Call Register (Administration and Operation) Amendment Determination 2012 (No. 1).

 

Section 2 – Commencement

 

Section 2 sets out that the Amendment Determination commences on 1 March 2012.

 

Section 3 – Amendment of Do Not Call Register (Administration and Operation) Determination 2007

Section 3 provides that Schedule 1 amends the Determination.

 

Schedule 1 – Amendments

 

[1]            Section 3

Item [1] replaces the existing section 3 (but not the heading) to include two additional definitions.

The definition for bulk application is included as this is a new expression used in the Determination.

The definition of fax number is included as in May 2010 the Act was amended to allow fax numbers to be registered.

[2]            Section 4

Item [2] replaces section 4 (including the heading) with a section that deals with applications to register Australian numbers on the Register and applications to check whether Australian numbers are on the Register.  Section 4 previously dealt only with applications to register Australian numbers on the Register; section 9 dealt with applications to check whether Australian numbers are on the Register.

Subsection 4(1) provides that a relevant account-holder, or a nominee of a relevant account-holder, may apply in accordance with the Act to register an Australian number on the Register, and may apply to check whether a number of the relevant account-holder has been registered.

Subsection 4(2) sets out the basic methods that can be used to apply to register an Australian number on the Register, or to check whether an Australian number is on the Register.  Those methods are by telephone, via the internet, by post, by fax, by e-mail, or in any other way approved by the ACMA and specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the website of the contracted service provider. Some of these application methods are not currently technically feasible for all types of numbers or application types. Therefore, exceptions apply as set out in subsections 4(3), 4(4), 4(5) and 4(6). However, the Determination leaves open the possibility that, should these methods become technically feasible for such numbers or application types in future, the ACMA may approve such application methods without the need for further amendments to the Determination.

Subsection 4(3) sets out that a relevant account-holder cannot apply to register a fax number by telephone or check the registration of a fax number by telephone, unless the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. The effect of this is that, initially, until such time as the ACMA approves, such applications can only be made by internet, post, fax or e-mail.

Subsection 4(4) provides that a bulk application by a relevant account-holder to register Australian numbers, or to check an entry on the Register, may only be made by telephone, post, fax or e-mail if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. The effect of this is that, until such time as the ACMA approves other methods, such applications can only be made through the internet.

Subsection 4(5) provides that, unless the nominee is making a bulk application, a nominee of a relevant account-holder may only apply to register an Australian number, or to check an entry on the Do Not Call Register by telephone or via the internet if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. The effect of this is that nominees can only apply to register or check numbers by post, fax or e-mail, until such time as the ACMA approves other methods for such applications.

Subsection 4(6) provides that, if a nominee is making a bulk application to register Australian numbers, or to check entries on the Do Not Call Register, the nominee may only do so by telephone, post, fax or e-mail if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. The effect is that only internet applications will be initially accepted for bulk applications, until such time as the ACMA approves other methods.

Subsection 4(7) provides that an application made under section 4 must be made in accordance with any written procedure approved by the ACMA and include any information reasonably required by the ACMA and specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website.

Subsection 4(8) sets out that, if an application to register a number is made in accordance with the Determination, the ACMA or contracted service provider must enter the number on the Register.  This requirement is subject to the requirements of the Act.  In particular, it does not affect the operation of section 16, which requires applicants to satisfy the ACMA or contracted service provider that a number is eligible to be placed on the Register in order for the ACMA or contracted service provider to be required to enter the number on the Register.

Subsection 4(9) provides that, if an application is made in accordance with the Determination to check an entry on the Register, the ACMA must advise the applicant in writing, as soon as practicable, whether the number is on the Register.

[3]            Section 5

Item [3] replaces section 5 (including the heading) with a new section dealing with applications for the correction of entries on the Register.

 

Subsection 5(1) provides that a relevant account-holder, or a nominee of a relevant account-holder, may apply to correct an entry on the Register.

Subsection 5(2) sets out the basic methods that can be used to apply to correct an entry on the Register.  Those methods are by telephone, via the internet, by post, by fax, by e-mail, or in any other way approved by the ACMA and specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the website of the contracted service provider.  Some of these application methods are not currently technically feasible for all types of numbers or application types. Therefore, exceptions apply as set out in subsections 5(3) and 5(4). However, the Determination leaves open the possibility that, should these methods become technically feasible for such numbers or application types in future, the ACMA may approve such application methods without the need for further amendments to the Determination.

Subsection 5(3) sets out that, unless the application is a bulk application, a relevant account‑holder or nominee cannot apply to correct a number on the Register by telephone or via the internet unless the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. This means that non-bulk applications for correction can only be made by post, e-mail or fax, until such time as the ACMA approves other methods.

Subsection 5(4) sets out that, if the application is a bulk application, a relevant account‑holder or nominee cannot apply to correct a number on the Register by telephone, post, fax or e-mail unless the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. That is, such applications can only be made by the internet, until such time as the ACMA approves other methods for such applications types.

Subsection 5(5) provides that an application made under section 5 must be made in accordance with any written procedure approved by the ACMA and include any information reasonably required by the ACMA and specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website.

 [4]           Section 7

Item [4] replaces section 7 (including the heading) with a new section dealing with applications for removal of entries from the Register.

 

Subsection 7(1) provides that a relevant account-holder, or a nominee of a relevant account-holder, may apply to remove an entry from the Register.

Subsection 7(2) sets out the basic methods that can be used to apply to remove an entry from the Register.  Those methods are by telephone, via the internet, by post, by fax, by e-mail, or in any other way approved by the ACMA and specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the website of the contracted service provider.  Some of these application methods are not currently technically feasible for all types of numbers or application types. Therefore, exceptions apply as set out in subsections 7(3), 7(4), 7(5) and 7(6). However, the Determination leaves open the possibility that, should these methods become technically feasible for such numbers or application types in future, the ACMA may approve such application methods without the need for further amendments to the Determination.

Subsection 7(3) sets out that, where an application is not a bulk application, and does not relate to a fax number, a relevant account‑holder may only apply to remove an entry via the internet if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. This means that non-bulk applications for removal in respect of telephone numbers can only be made by post, fax, e-mail or telephone, until such time as the ACMA approves other methods.

Subsection 7(4) sets out that, where an application is not a bulk application, and relates to a fax number, a relevant account‑holder may only apply to remove an entry by telephone or via the internet if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. This means that non-bulk applications in respect of fax numbers can only be made by post, fax or e-mail until such time as the ACMA approves another method.

Subsection 7(5) provides that that, where an application is not a bulk application, a nominee may only apply to remove an entry by telephone or via the internet if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. This means such applications can only be initially received by post, fax or e-mail, until such time as the ACMA approves another method.

Subsection 7(6) provides that that, if the application is a bulk application, a relevant account-holder or nominee may only apply to remove entries by telephone, post, fax or e-mail if the ACMA so approves and that approval is specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website. This means that initially all such bulk applications must be received by the internet, until such time as the ACMA approves another method.

Subsection 7(7) provides that an application made under section 7 must be made in accordance with any written procedure approved by the ACMA and include any information reasonably required by the ACMA and specified on the ACMA’s website and, if the Register is kept by the contracted service provider, the contracted service provider’s website.

 

 

Subsection 7(8) sets out that, if an application to remove an entry from the Register is made in accordance with the Determination, the ACMA or contracted service provider must remove the number from the Register. 

 [5]           Section 9

Item [5] omits section 9 (including the heading) as the checking of entries on the Register is now dealt with  in section 4.


 

Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Do Not Call Register (Administration and Operation) Amendment Determination 2012 (No. 1).

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

 

On 27 April 2007, the ACMA made the Do Not Call Register (Administration and Operation) Determination 2007 (the Determination).  The Determination, among other things, sets out the manner in which applications may be made for:

         registration of a number on the Do Not Call Register (Register) kept under section 13 of the Do Not Call Register Act 2006;

         corrections of entries on the Register; and

         removal of entries from the Register.

 

The Do Not Call Register (Administration and Operation) Amendment Determination 2012 (No. 1) (the Amendment Determination) makes changes of a minor nature, to facilitate the efficient processing of applications relating to 21 or more numbers (bulk applications), and to remove detailed procedural requirements and restrictions that limit the flexibility of the ACMA to make available to applicants different methods by which they can apply for registration, checking and correction of registration, and removal of numbers from the Do Not Call Register. 

 

Human rights implications

 

Sections 4 to 7 of the Determination as amended by the Amendment Determination require that registered account holders or their nominees provide information in order to register numbers on the Do Not Call Register, check or correct existing registrations, or to remove numbers from the Do Not Call Register.  Some of this information is personal information.  Requiring the provision of personal information limits the right to privacy (Article 17 of The International Covenant on Civil and Political Rights).

 

However, any limitation on the right to privacy is legitimate as the Determination only requires the provision of such information (including personal information) which is reasonably necessary in connection with the maintenance of the Register.  Further, eligible persons are not required to enter their numbers on the Register – rather, it is an option available to them should they wish to opt out of receiving certain telemarketing calls and marketing faxes.

 

The Amendment Determination does not introduce any new requirement to provide personal information, but rather alters the existing requirements in a way which may result in different personal information being required in some circumstances (for example, an e-mail address instead of a physical address).  The objective of the Amendment Determination is to ensure that the ACMA has flexibility to take advantage of changing technologies to make available more convenient methods for applicants to register their numbers on the Do Not Call Register.  The improvements to application procedures enhance the ability for applicants to easily and conveniently opt-out of receiving telemarketing calls and marketing faxes, and to make applications to check, correct, or remove entries from the Register. 

 

Conclusion

 

The Legislative Instrument is compatible with human rights because, to the extent that it may limit the right to privacy, the limitations are reasonable, necessary and proportionate.

 

 

Australian Communications and Media Authority