Do Not Call Register Act 2006
No. 88, 2006
An Act to establish a Do Not Call Register, and for other
purposes
[Assented to 30 June 2006]
The Parliament of Australia enacts:
Part 1—Introduction
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Short title
                  This Act may be cited as the Do Not
Call Register Act 2006.
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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.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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30 June 2006
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2. Sections 3 to 9
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The day on which this Act receives the Royal Assent.
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30 June 2006
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3. Part 2
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A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within
the period of 12 months beginning on the day on which this Act receives the
Royal Assent, they commence on the first day after the end of that period.
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31 May 2007 (see F2007L01114)
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4. Part 3
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The day on which this Act receives the Royal Assent.
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30 June 2006
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5. Parts 4 and 5
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At the same time as the provision(s) covered by table
item 3.
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31 May 2007
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6. Sections 39 and 40
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At the same time as the provision(s) covered by table
item 3.
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31 May 2007
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7. Section 41
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The day on which this Act receives the Royal Assent.
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30 June 2006
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8. Sections 42 to 45
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At the same time as the provision(s) covered by table
item 3.
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31 May 2007
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9. Section 46
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The day on which this Act receives the Royal Assent.
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30 June 2006
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10. Schedules 1, 2 and 3
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At the same time as the provision(s) covered by table
item 3.
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31 May 2007
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Note:Â Â Â Â Â Â Â Â Â This table
relates only to the provisions of this Act as originally passed by the
Parliament and assented to. It will not be expanded to deal with provisions
inserted in this Act after assent.
            (2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
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Simplified outline
                  The following is a simplified outline of
this Act:
•     Unsolicited telemarketing
calls must not be made to a number registered on the Do Not Call Register.
•     The main remedies for
breaches of this Act are civil penalties and injunctions.
Note:Â Â Â Â Â Â Â Â Â The Telecommunications Act 1997
contains additional provisions about telemarketing calls. Those provisions
include Part 6 (industry codes and standards), Part 26
(investigations), Part 27 (information‑gathering powers) and
Part 31A (enforceable undertakings).
4Â
Definitions
                  In this Act:
account includes:
                    (a) a free account; and
                    (b) a pre‑paid account; and
                    (c) anything that may reasonably be
regarded as the equivalent of an account.
ACMA means the Australian Communications and
Media Authority.
acquire, when used in relation to goods or
services, has the same meaning as in the Trade Practices Act 1974.
agency includes:
                    (a) an armed force; and
                    (b) a police force.
Australia, when used in a geographical sense,
includes the eligible Territories.
Australian number means a number that is:
                    (a) specified in the numbering plan
referred to in section 455 of the Telecommunications Act 1997; and
                    (b) for use in connection with the
supply of carriage services to the public in Australia (within the meaning of
that section).
authorise, when used in relation to the making
of a telemarketing call, has a meaning affected by clause 6 of
Schedule 1.
authorised officer means:
                    (a) the Chair of the ACMA; or
                    (b) a member of the staff of the ACMA
appointed under clause 8 of Schedule 3.
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.
carriage service has the same meaning as in
the Telecommunications Act 1997.
cause has a meaning affected by subsection
11(9).
civil contravention means a contravention of
a civil penalty provision.
civil penalty order means an order under
subsection 24(1).
civil penalty provision means any of the
following provisions:
                    (a) subsection 11(1);
                    (b) subsection 11(7);
                    (c) subsection 12(1);
                    (d) subsection 12(2);
                    (e) a provision of the regulations
that is declared to be a civil penalty provision in accordance with paragraph
44(2)(c).
consent, when used in relation to the making
of a telemarketing call, has the meaning given by Schedule 2.
contracted service provider means the person
(if any) who keeps the Do Not Call Register as mentioned in paragraph 13(1)(b).
data processing device has the same meaning
as in the Telecommunications Act 1997.
dealing with, in relation to a telemarketing
call, includes retrieving the call from a voicemail system or similar system.
designated telemarketing call has the meaning
given by Schedule 1.
director includes a member of the governing
body of an organisation.
Do Not Call Register means the register kept
under section 13.
educational institution includes:
                    (a) a pre‑school; and
                    (b) a school; and
                    (c) a college; and
                    (d) a university.
eligible Territory
means:
                    (a) the Territory of Christmas Island;
or
                    (b) the Territory of Cocos (Keeling)
Islands; or
                    (c) an external Territory prescribed
for the purposes of section 8.
employee has a meaning affected by clause 7
of Schedule 1.
employer has a meaning affected by
clause 7 of Schedule 1.
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 Trade
Practices Act 1974.
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 under clause 2 of Schedule 3.
international convention means:
                    (a) a convention to which Australia is
a party; or
                    (b) an agreement between Australia and
a foreign country.
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.
mistake means reasonable mistake of fact.
nominee has the meaning given by
section 39.
organisation includes:
                    (a) a body corporate; and
                    (b) a partnership; and
                    (c) a government body; and
                    (d) a court or tribunal; and
                    (e) an unincorporated body or
association.
Express references in this Act to organisations do not
imply that references in this Act to persons do not include bodies politic or
corporate.
Note:Â Â Â Â Â Â Â Â Â Paragraph 22(1)(a) of the Acts
Interpretation Act 1901 provides that person includes a body
politic or corporate as well as an individual.
penalty unit has the meaning given by
section 4AA of the Crimes Act 1914.
person includes a partnership.
Note:Â Â Â Â Â Â Â Â Â For treatment of partnerships, see
section 585 of the Telecommunications Act 1997.
publish includes:
                    (a) publish on the Internet; and
                    (b) publish to the public or a section
of the public.
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.
relevant telephone account‑holder, in
relation to a telephone number, means:
                    (a) if an individual or organisation
is solely responsible for the relevant telephone account—the individual or
organisation; or
                    (b) if 2 or more individuals and/or
organisations are jointly responsible for the relevant telephone account—any of
those individuals or organisations.
services has the same meaning as in the Trade
Practices Act 1974.
supply:
                    (a) when used in relation to goods or
services—has the same meaning as in the Trade Practices Act 1974; 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.
telemarketing call has the meaning given by
section 5.
voice call means:
                    (a) a voice call within the ordinary
meaning of that expression; or
                    (b) a call that involves a recorded or
synthetic voice; or
                    (c) if a call covered by
paragraph (a) or (b) is not practical for a particular recipient with a
disability (for example, because the recipient has a hearing impairment)—a call
that is equivalent to a call covered by either of those paragraphs;
whether or not the recipient responds by way of pressing
buttons on a telephone handset or similar thing.
5Â
Telemarketing calls
Basic definition
            (1) For the purposes of this Act, a telemarketing
call is a voice call to a telephone number, where, having regard to:
                    (a) the content of the call; and
                    (b) the presentational aspects of the
call; and
                    (c) the content that can be obtained
using the telephone numbers, URLs or contact information (if any) mentioned in
the call; and
                    (d) if the telephone number from which
the call is made is disclosed to the recipient (whether by calling line
identification or otherwise)—the content (if any) that can be obtained by
calling that telephone number;
it would be concluded that the purpose, or one of the
purposes, of the call is:
                    (e) to offer to supply goods or
services; or
                     (f) to advertise or promote goods or
services; or
                    (g) to advertise or promote a
supplier, or prospective supplier, of goods or services; or
                    (h) to offer to supply land or an
interest in land; or
                     (i) to advertise or promote land or
an interest in land; or
                     (j) to advertise or promote a
supplier, or prospective supplier, of land or an interest in land; or
                    (k) to offer to provide a business
opportunity or investment opportunity; or
                     (l) to advertise or promote a
business opportunity or investment opportunity; or
                   (m) to advertise or promote a provider,
or prospective provider, of a business opportunity or investment opportunity;
or
                    (n) to solicit donations; or
                    (o) a purpose specified in the
regulations.
            (2) For the purposes of paragraphs (1)(e)
to (m), it is immaterial whether the goods, services, land, interest or
opportunity exists.
            (3) For the purposes of paragraphs (1)(e)
to (m), it is immaterial whether it is lawful to acquire the goods, services,
land or interest or take up the opportunity.
            (4) Either of the following:
                    (a) the supplier or prospective
supplier mentioned in paragraph (1)(g) or (j);
                    (b) the provider or prospective
provider mentioned in paragraph (1)(m);
may be the individual or organisation who made the call or
authorised the making of the call.
            (5) Paragraphs (1)(e) to (o) are to be
read independently of each other.
            (6) Subsection (1) has effect subject to
subsection (7).
Excluded calls—regulations
            (7) The regulations may provide that a
specified kind of voice call is not a telemarketing call for the
purposes of this Act.
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Continuity of partnerships
                  For the purposes of this Act, a change
in the composition of a partnership does not affect the continuity of the
partnership.
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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.
8Â
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.
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Extra‑territorial application
                  Unless the contrary intention appears,
this Act extends to acts, omissions, matters and things outside Australia.
Part 2—Rules about making telemarketing calls
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Simplified outline
                  The following is a simplified outline of
this Part:
•     Unsolicited telemarketing
calls must not be made to a number registered on the Do Not Call Register.
•     Agreements for the making
of telemarketing calls must require compliance with this Act.
11Â
Unsolicited telemarketing calls must not be made to a number registered on the
Do Not Call Register
            (1) A person must not make, or cause to be
made, a telemarketing call to an Australian number if:
                    (a) the number is registered on the Do
Not Call Register; and
                    (b) the call is not a designated
telemarketing call.
Note:Â Â Â Â Â Â Â Â Â For designated telemarketing call,
see Schedule 1.
            (2) Subsection (1) does not apply if:
                    (a) the relevant telephone account‑holder;
or
                    (b) a nominee of the relevant
telephone account‑holder;
consented to the making of the call.
Note 1:Â Â Â Â Â Â For the meaning of consent, see
Schedule 2.
Note 2:Â Â Â Â Â Â For the meaning of nominee, see
section 39.
            (3) Subsection (1) does not apply if:
                    (a) the number was included on a list
that was submitted by the person under subsection 19(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 subparagraph 19(2)(d)(i) in response to the submission of the
list, but that information did not state that the number was registered on the
Do Not Call Register; or
                            (ii) the person was
informed under subparagraph 19(2)(d)(ii), in response to the submission of the
list, that the number was not registered on the Do Not Call Register; or
                           (iii) under subsection
19(3), in response to the submission of the list, the person was given a list
that included the number.
For the purposes of this subsection, a list may consist of
a single telephone number.
Note:Â Â Â Â Â Â Â Â Â Section 19 deals with access to the Do
Not Call 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).
Civil penalty provisions
            (8) Subsections (1) and (7) are civil
penalty provisions.
Note:Â Â Â Â Â Â Â Â Â Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
Extended meaning of cause
            (9) 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, telemarketing 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 telemarketing call;
the first person is taken to have caused the
telemarketing call to be made.
          (10) Paragraph (9)(a) applies to contracts
or arrangements entered into, or understandings arrived at, before, at or after
the commencement of this section.
12Â
Agreements for the making of telemarketing 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 telemarketing
calls; or
                            (ii) cause any or all of
the employees or agents of the other person to make telemarketing calls; and
                    (b) there is a reasonable likelihood
that some or all of those calls will be made to telephone numbers that, under
section 14, are eligible to be entered on the Do Not Call Register; and
                    (c) the contract, arrangement or
understanding does not contain an express provision to the effect that the
other person will:
                             (i) in any case—comply
with this Act; and
                            (ii) if
subparagraph (a)(ii) applies—take all reasonable steps to ensure that the
employees and agents of the other person comply with this Act;
                           in relation to the making of
telemarketing calls covered by the contract, arrangement or understanding.
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).
Civil penalty provisions
            (3) Subsections (1) and (2) are civil
penalty provisions.
Note:Â Â Â Â Â Â Â Â Â Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
Validity of contracts, arrangements or understandings
            (4) A failure to comply with
subsection (1) does not affect the validity of any contract, arrangement
or understanding.
Part 3—Do Not Call Register
13Â Do
Not Call Register
            (1) The ACMA must:
                    (a) keep; or
                    (b) arrange for another person (the contracted
service provider) to keep, on behalf of the ACMA;
a register of telephone numbers for the purposes of this
Act.
            (2) The register is to be known as the Do Not
Call Register.
            (3) The register is to be kept in electronic
form.
            (4) The register is not a legislative
instrument.
            (5) The ACMA 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 Call Register is to facilitate the
prohibition, under section 11, of unsolicited telemarketing calls (other
than designated telemarketing calls).
14Â
Eligibility for registration
                  A telephone number is eligible to be
entered on the Do Not Call Register if:
                    (a) it is an Australian number; and
                    (b) it is used or maintained
exclusively or primarily for private or domestic purposes; and
                    (c) it is not used or maintained
exclusively for transmitting and/or receiving faxes.
15Â
Applications for registration
                  An application for a telephone number to
be entered on the Do Not Call Register:
                    (a) may be made by:
                             (i) the relevant telephone
account‑holder; or
                            (ii) a nominee of the
relevant telephone account‑holder; and
                    (b) 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
                    (c) is to be in the applicable form
(if any) specified in a determination under subsection 18(1); and
                    (d) is to be made in the applicable
manner (if any) specified in a determination under subsection 18(1).
Note:Â Â Â Â Â Â Â Â Â For the meaning of nominee, see
section 39.
16Â
Registration
                  If:
                    (a) an application is made for a
telephone number to be entered on the Do Not Call Register; and
                    (b) the applicant satisfies:
                             (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;
                           that the number is eligible to
be entered on the Do Not Call Register;
then:
                    (c) if the Do Not Call Register is
kept by the ACMA—the ACMA; or
                    (d) if the Do Not Call Register is
kept by the contracted service provider—the contracted service provider on
behalf of the ACMA;
must enter the number on the Do Not Call Register.
17Â
Duration of registration
            (1) The registration of a telephone number on
the Do Not Call Register:
                    (a) takes effect when it is entered on
the Do Not Call Register; and
                    (b) remains in force for 3 years,
unless sooner removed from the Do Not Call Register in accordance with a
determination under subsection 18(1).
            (2) If the registration of a telephone number
on the Do Not Call Register ceases to be in force, this Act does not prevent
the number from being re‑registered on the Do Not Call Register.
            (3) If a telephone number is removed from the
Do Not Call Register, this Act does not prevent the number from being re‑registered
on the Do Not Call Register.
18Â
Administration of the Do Not Call Register—determinations
            (1) The ACMA may make a determination that
makes provision for and in relation to any or all of the following:
                    (a) the form of applications for
telephone numbers to be entered on the Do Not Call Register;
                    (b) the manner in which such
applications are to be made;
                    (c) the manner in which entries are to
be made on the Do Not Call Register;
                    (d) the correction of entries in the
Do Not Call Register;
                    (e) the removal of entries from the Do
Not Call Register;
                     (f) any other matter relating to the
administration or operation of the Do Not Call Register.
            (2) A determination under subsection (1)
is a legislative instrument.
            (3) A determination under subsection (1)
is to be an instrument of a legislative character.
19Â
Access to the Do Not Call Register
            (1) A person (the access‑seeker)
who wishes to access the Do Not Call Register may submit a list of telephone
numbers 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.
For this purpose, a list may consist of a single telephone
number.
            (2) If the access‑seeker has paid the
applicable fee (if any) determined under subsection 21(1), then:
                    (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;
must:
                    (c) check the telephone numbers on the
access‑seeker’s list against the telephone numbers registered on the Do
Not Call Register; and
                    (d) either:
                             (i) inform the access‑seeker
which numbers (if any) on the access‑seeker’s list are registered on the
Do Not Call Register; or
                            (ii) inform the access‑seeker
which numbers (if any) on the access‑seeker’s list are not registered on
the Do Not Call Register.
            (3) The ACMA, or the contracted service
provider, as the case requires, may comply with subparagraph (2)(d)(ii) by
returning the access‑seeker’s list, modified by the deletion of the
numbers (if any) registered on the Do Not Call Register.
            (4) A submission under subsection (1) is
to be made in the applicable manner (if any) specified in a determination under
subsection 20(1).
20Â
Access—determinations
            (1) The ACMA may make a determination that
makes provision for and in relation to any or all of the following:
                    (a) the manner in which a submission
under subsection 19(1) is to be made;
                    (b) the manner in which information
under paragraph 19(2)(d) is to be given;
                    (c) the manner in which a list is to
be returned under subsection 19(3);
                    (d) any other matter relating to
access to the Do Not Call Register.
Determinations
            (2) A determination under subsection (1)
is a legislative instrument.
            (3) A determination under subsection (1)
is to be an instrument of a legislative character.
21Â
Access—fees
            (1) The ACMA may make a determination that
makes provision for and in relation to either or both of the following:
                    (a) fees payable for services provided
under subsection 19(2) or (3);
                    (b) refunds of fees for those
services.
Exemptions
            (2) The ACMA may make a determination that
makes provision for and in relation to exemptions from fees for services
provided under subsection 19(2) or (3).
            (3) The Minister may make a determination
that makes provision for and in relation to exemptions from fees for services
provided under subsection 19(2) or (3).
            (4) If one or more determinations are in
force under subsection (3), a determination under subsection (2) has
no effect except to the extent to which it makes provision for and in relation
to exemptions that are in addition to exemptions dealt with by the
determinations under subsection (3).
Other matters
            (5) A fee must not be such as to amount to
taxation.
            (6) A fee is payable to the ACMA on behalf of
the Commonwealth.
            (7) Section 60 of the Australian
Communications and Media Authority Act 2005 does not apply in relation to
services provided under subsection 19(2) or (3).
Note:Â Â Â Â Â Â Â Â Â Section 60 of the Australian
Communications and Media Authority Act 2005 deals with charges relating to
the ACMA’s expenses.
Determinations
            (8) A determination under
subsection (1), (2) or (3) is a legislative instrument.
            (9) A determination under
subsection (1), (2), or (3) is to be an instrument of a legislative
character.
22Â
Application of the Privacy Act 1988 to the contracted service provider
            (1) For the purposes of the Privacy Act
1988, if the Do Not Call Register is kept by the contracted service
provider under a contract:
                    (a) the keeping of the Do Not Call
Register by the contracted service provider; and
                    (b) the operation of the Do Not Call
Register by the contracted service provider; and
                    (c) the performance of a function, or
the exercise of a power, by the contracted service provider under:
                             (i) this Part; or
                            (ii) a determination under
this Part;
is taken to be the provision of a service to the ACMA
under the contract.
            (2) Subsection (1) is enacted for the
avoidance of doubt.
Part 4—Civil penalties
23Â
Simplified outline
                  The following is a simplified outline of
this Part:
•     Pecuniary penalties are
payable for contraventions of civil penalty provisions.
•     Proceedings for the
recovery of penalties are to be instituted in the Federal Court or the Federal
Magistrates Court.
Note:Â Â Â Â Â Â Â Â Â Schedule 3 sets up a system of infringement
notices relating to contraventions of civil penalty provisions.
24Â
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 ACMA, order the person to
pay to the Commonwealth a pecuniary penalty.
            (2) An order under subsection (1) is to
be known as 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; and
                    (e) if the court considers that it is
appropriate to do so—whether the person has previously been found by a court in
a foreign country to have engaged in any similar conduct.
Civil enforcement of penalty
            (4) The pecuniary penalty is a civil debt
payable to the Commonwealth. 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.
25Â
Maximum penalties for contravention of civil penalty provisions
            (1) The maximum penalty payable under
subsection 24(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 11(1) or (7).
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 24(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 24(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 11(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 24(1) by the body corporate in
respect of those contraventions must not exceed:
                             (i) if the civil penalty
provision is subsection 11(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 24(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 11(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 24(1) by the person in respect of those
contraventions must not exceed:
                             (i) if the civil penalty
provision is subsection 11(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 24(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 11(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 24(1) by the body corporate in
respect of those contraventions must not exceed:
                             (i) if the civil penalty
provision is subsection 11(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 24(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 11(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 24(1) by the person in respect of those contraventions
must not exceed:
                             (i) if the civil penalty
provision is subsection 11(1) or (7)—2,000 penalty units; or
                            (ii) in any other
case—1,000 penalty units.
26Â 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.
27Â
Time limit for application for an order
                  Proceedings for a civil penalty order
may be started no later than 6 years after the contravention.
28Â
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.
29Â
Criminal proceedings not to be brought for contravention of civil penalty
provisions
                  Criminal proceedings do not lie against
a person only because the person has contravened a civil penalty provision.
30Â
Ancillary orders—compensation
            (1) If:
                    (a) in one or more proceedings under
section 24, 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 ACMA 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 11 in relation to the making of one or more
telemarketing 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.
31Â
Ancillary orders—recovery of financial benefit
            (1) If:
                    (a) in one or more proceedings under
section 24, 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 ACMA, 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.
32Â
Schedule 3 (infringement notices)
                  Schedule 3 has effect.
Part 5—Injunctions
33Â
Simplified outline
                  The following is a simplified outline of
this Part:
•     The Federal Court or the
Federal Magistrates Court may grant injunctions in relation to contraventions
of civil penalty provisions.
34Â
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 ACMA, 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 ACMA, grant an injunction requiring the person to do
that act or thing.
35Â
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 34,
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 34, as a condition of granting an interim injunction, to give any
undertakings as to damages.
36Â
Discharge etc. of injunctions
                  The Federal Court or the Federal
Magistrates Court may discharge or vary an injunction granted by it under this
Part.
37Â
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.
38Â
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 6—Miscellaneous
39Â
Nominees
Nomination by relevant telephone account‑holder
            (1) For the purposes of the application of
this Act to a telephone number, if:
                    (a) the relevant telephone account‑holder
has nominated an individual in relation to the number; and
                    (b) the nomination has not been
withdrawn;
the individual is a nominee of the relevant
telephone account‑holder.
            (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 telephone number.
Deemed nominee
            (4) The regulations may provide that, for the
purposes of the application of this Act to a telephone number, an individual is
taken to be a nominee of the relevant telephone account‑holder
in the circumstances specified in the regulations.
40Â
Formal warnings—breach of civil penalty provision
                  The ACMA may issue a formal warning if a
person contravenes a civil penalty provision.
41Â
Additional ACMA functions
                  The ACMA has the following functions:
                    (a) to conduct and/or co‑ordinate
community education programs about unsolicited telemarketing calls, in
consultation with relevant industry and consumer groups and government
agencies;
                    (b) to conduct and/or commission
research into issues relating to unsolicited telemarketing calls;
                    (c) to liaise with regulatory and
other relevant bodies overseas about co‑operative arrangements for the
prohibition or regulation of unsolicited telemarketing calls.
42Â
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.
43Â
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.
44Â
Giving effect to international conventions
            (1) The regulations may make provision for
and in relation to giving effect to an international convention that deals with
telemarketing calls.
            (2) Regulations made for the purposes of
subsection (1) may:
                    (a) vest the Federal Court or the
Federal Magistrates Court with jurisdiction in a matter or matters arising
under the regulations; and
                    (b) prescribe penalties, not exceeding
a fine of 50 penalty units, for offences against the regulations; and
                    (c) declare that a specified provision
of the regulations is a civil penalty provision for the purposes of this Act.
45Â
Review of operation of Act
            (1) The Minister must cause to be conducted a
review of the operation of:
                    (a) this Act; and
                    (b) the Telecommunications Act 1997
to the extent to which that Act relates to this Act; and
                    (c) Part 6 of the Telecommunications
Act 1997 to the extent to which that Part relates to telemarketing
activities (within the meaning of that Part).
            (2) A review under subsection (1) must
be conducted:
                    (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.
            (3) The Minister must cause to be prepared a
report of a review under subsection (1).
            (4) The Minister must cause copies of a
report 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.
46Â
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 1—Designated telemarketing calls
Note:Â Â Â Â Â Â See section 4.
1Â
Object
                  The object of this Schedule is to define
the expression designated telemarketing call.
Note:Â Â Â Â Â Â Â Â Â Designated telemarketing calls are exempt from
section 11 (unsolicited telemarketing calls must not be made to a number
registered on the Do Not Call Register).
2Â
Government bodies, religious organisations and charities
                  For the purposes of this Act, a
telemarketing call is a designated telemarketing 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
specified in the regulations.
3Â
Political parties, independent members of parliament, candidates etc.
Political parties
            (1) For the purposes of this Act, a
telemarketing call is a designated telemarketing 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
specified in the regulations.
Independent members of parliament etc.
            (2) For the purposes of this Act, a
telemarketing call is a designated telemarketing 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
specified in the regulations.
Candidates
            (3) For the purposes of this Act, a telemarketing
call is a designated telemarketing 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
specified in the regulations.
4Â
Educational institutions
Relevant telephone account‑holder is a
householder
            (1) For the purposes of this Act, a
telemarketing call is a designated telemarketing call if:
                    (a) the making of the call is
authorised by an educational institution; and
                    (b) the call is made to a number that
is used or maintained primarily for the private or domestic purposes of the
relevant telephone account‑holder and/or members of the relevant account‑holder’s
household; and
                    (c) either or both of the following
subparagraphs apply:
                             (i) the relevant telephone
account‑holder is, or has been, enrolled as a student in that
institution;
                            (ii) a member or former
member of the relevant account‑holder’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
specified in the regulations.
Relevant telephone account‑holder is an employer
            (2) For the purposes of this Act, a
telemarketing call is a designated telemarketing call if:
                    (a) the making of the call is
authorised by an educational institution; and
                    (b) the relevant telephone account‑holder
is the employer of an employee; and
                    (c) the call is made to a number that
is used or maintained primarily for the private or domestic purposes of the
employee and/or members of the employee’s household; and
                    (d) either or both of the following
subparagraphs apply:
                             (i) the employee is, or
has been, enrolled as a student in that institution;
                            (ii) a member or former
member of the employee’s household is, or has been, enrolled as a student in
that institution; and
                    (e) if the call relates to goods or
services—the institution is the supplier, or prospective supplier, of the goods
or services; and
                     (f) the call is not of a kind
specified in the regulations.
Note:Â Â Â Â Â Â Â Â Â Clause 7 provides for an extended meaning
of employee and employer.
5Â
Regulations
                  The regulations may provide that a
specified kind of telemarketing call is a designated telemarketing call
for the purposes of this Act.
6Â
Authorising the making of telemarketing calls
Attribution of authorisation to organisation
            (1) For the purposes of this Schedule
(including subclause (2)), if:
                    (a) an individual authorises the making
of a telemarketing 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.
Self‑authorisation
            (2) For the purposes of this Schedule, if:
                    (a) a telemarketing call is made by an
individual or organisation; and
                    (b) the making of the call is not
authorised by any other individual or organisation;
the first‑mentioned individual or organisation is
taken to authorise the making of the call.
7Â
Extended meaning of employee and employer
Member of the executive body of a body corporate
            (1) For the purposes of clause 4, if an
individual is a member of the executive body (whether described as the board of
directors or otherwise) of a body corporate, the individual is taken to be an
employee of the body corporate.
Contractor
            (2) For the purposes of clause 4, if an
individual works under a contract that is wholly or principally for the labour
of the individual, the individual is taken to be an employee of the other party
to the contract.
Member of parliament
            (3) For the purposes of clause 4, if an
individual is a member of the Parliament of the Commonwealth, the individual is
taken to be an employee of the Commonwealth.
            (4) For the purposes of clause 4, if an
individual is a member of the parliament of a State, the individual is taken to
be an employee of the State.
            (5) For the purposes of clause 4, if an
individual is a member of the Legislative Assembly for the Australian Capital
Territory, the individual is taken to be an employee of the Australian Capital
Territory.
            (6) For the purposes of clause 4, if an
individual is a member of the Legislative Assembly of the Northern Territory,
the individual is taken to be an employee of the Northern Territory.
            (7) For the purposes of clause 4, if an
individual is a member of the Legislative Assembly of Norfolk Island, the
individual is taken to be an employee of Norfolk Island.
Member of local governing body
            (8) For the purposes of clause 4, if an
individual is a member of a local governing body established by or under a law
of a State or Territory, the individual is taken to be an employee of that
body.
Officeholder etc.
            (9) For the purposes of clause 4, if an
individual:
                    (a) holds, or performs the duties of,
an appointment, office or position under the Constitution or under a law of the
Commonwealth, of a State or of a Territory; or
                    (b) is
otherwise in the service of the Commonwealth, of a State or of a Territory
(including service as a member of the Defence Force or as a member of a police
force);
the individual is taken to be an employee of the
Commonwealth, the State or the Territory, as the case requires.
Schedule 2—Consent
Note:Â Â Â Â Â Â See section 4.
1Â
Object
                  The object of this Schedule is to define
the expression consent when used in relation to the making of a
telemarketing call.
Note:Â Â Â Â Â Â Â Â Â The concept of consent is relevant to
section 11 (unsolicited telemarketing calls must not be made to a number
registered on the Do Not Call Register).
2Â
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.
3Â
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.
4Â
Consent may not be inferred from the publication of a telephone number
                  For the purposes of the application of
this Act to a telephone number, consent of:
                    (a) the relevant telephone account‑holder;
or
                    (b) a nominee of the relevant
telephone account‑holder;
may not be inferred from the mere fact that the telephone
number has been published.
5Â
Regulations about consent
            (1) The regulations may provide that, for the
purposes of the application of this Act to a telephone number, the consent of:
                    (a) the relevant telephone account‑holder;
or
                    (b) a nominee of the relevant
telephone account‑holder;
may not be inferred in the circumstances specified in the
regulations.
            (2) The regulations may provide that, for the
purposes of the application of this Act to a telephone number, the consent of:
                    (a) the relevant telephone account‑holder;
or
                    (b) a nominee of the relevant
telephone account‑holder;
may be inferred in the circumstances specified in the
regulations.
Schedule 3—Infringement notices
Note:Â Â Â Â Â Â See section 32.
1Â
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.
2Â When
an infringement notice can be given
            (1) If an authorised officer has reasonable
grounds to believe that a person has, on a particular day, committed one or
more contraventions of a particular civil penalty provision, the authorised
officer may give to the person an infringement notice relating to those
contraventions.
            (2) An infringement notice must be given
within 12 months after the day on which the civil contraventions are alleged to
have taken place.
            (3) This clause does not authorise the giving
of 2 or more infringement notices to a person in relation to contraventions of
a particular civil penalty provision that allegedly occurred on the same day.
3Â
Matters to be included in an infringement notice
            (1) An infringement notice must:
                    (a) set out the name of the person to
whom the notice is given; and
                    (b) set out the name of the authorised
officer who gave the notice; and
                    (c) either:
                             (i) set out brief details
of each of the alleged civil contraventions; or
                            (ii) be accompanied by one
or more data processing devices that contain, in electronic form, brief details
of each of the alleged civil 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
ACMA, on behalf of the Commonwealth, within:
                             (i) 28 days after the
notice is given; or
                            (ii) if the ACMA 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 specified by the regulations.
Note:Â Â Â Â Â Â Â Â Â 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 civil contravention:
                    (a) the date of the alleged
contravention;
                    (b) the civil penalty provision that
was allegedly contravened.
            (3) Subparagraph (1)(c)(ii) does not
authorise the inclusion of information in a data processing device unless, at
the time the infringement notice was given, it was reasonable to expect that
the information would be readily accessible so as to be useable for subsequent
reference.
            (4) This clause does not limit the operation
of the Electronic Transactions Act 1999.
4Â
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 11(1) or (7)
|
20
|
|
2
|
the notice relates to more than 1, but fewer than 50,
alleged contraventions of subsection 11(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 11(1) or (7)
|
1,000
|
|
4
|
the notice relates to a single alleged contravention of a
civil penalty provision other than subsection 11(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
11(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 11(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 11(1) or (7)
|
4
|
|
2
|
the notice relates to more than 1, but fewer than 50,
alleged contraventions of subsection 11(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 11(1) or (7)
|
200
|
|
4
|
the notice relates to a single alleged contravention of a
civil penalty provision other than subsection 11(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
11(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 11(1) or (7)
|
100
|
5Â
Withdrawal of an infringement notice
            (1) This clause applies if an infringement
notice is given to a person.
            (2) An authorised officer 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.
6Â What
happens if the penalty is paid
            (1) This clause applies if:
                    (a) an infringement notice relating to
one or more alleged civil contraventions is given to a person; and
                    (b) the penalty is paid in accordance
with the infringement notice; and
                    (c) the infringement notice is not
withdrawn.
            (2) Any liability of the person for the
alleged civil contraventions is discharged.
            (3) Proceedings under Part 4 may not be
brought against the person for the alleged civil contraventions.
7Â
Effect of this Schedule on civil proceedings
                  This Schedule does not:
                    (a) require an infringement notice to
be given in relation to an alleged civil contravention; or
                    (b) affect the liability of a person
to have proceedings under Part 4 brought against the person for an alleged
civil contravention if:
                             (i) the person does not
comply with an infringement notice relating to the contravention; or
                            (ii) an infringement notice
relating to the contravention is not given to the person; or
                           (iii) an infringement notice
relating to the contravention is given to the person and subsequently
withdrawn; or
                    (c) limit the Federal Court’s 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
committed a civil contravention.
8Â
Appointment of authorised officer
                  The ACMA may, by writing, appoint a
member of the staff of the ACMA as an authorised officer for the purposes of
this Schedule.
9Â
Regulations
                  The regulations may make further
provision in relation to infringement notices.