Do Not Call Register (Consequential Amendments) Act 2006
No. 89, 2006
An Act to deal with consequential matters relating to the
enactment of the Do Not Call Register Act 2006, and for other purposes
[Assented to 30 June 2006]
The Parliament of Australia enacts:
1
Short title
This Act may be cited as the Do Not
Call Register (Consequential Amendments) Act 2006.
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
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Column 1
|
Column 2
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Column 3
|
|
Provision(s)
|
Commencement
|
Date/Details
|
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1. Sections 1 to 3 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. Schedule 1, Part 1
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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. Schedule 1, Part 2
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At the same time as Part 2 of the Do Not Call
Register Act 2006 commences.
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31 May 2007
(see F2007L01114)
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Note: 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.
3
Schedule(s)
Each Act 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to this Act is amended or repealed as set out in the applicable items in the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
Part 1—Amendments commencing on Royal Assent
Telecommunications Act 1997
1 At the end of subsection 3(2)
Add:
; (k) to promote responsible practices
in relation to the making of telemarketing calls.
2 Section 5
Omit “or the e‑marketing industry” (wherever occurring),
substitute “, the e‑marketing industry or the telemarketing industry”.
3 Section 7
Insert:
Australian number has the same meaning as in
the Do Not Call Register Act 2006.
4 Section 7
Insert:
standard questionnaire‑based research
means research that involves people being asked to answer one or more standard
questions, but does not include:
(a) opinion polling; or
(b) research of a kind specified in
the regulations.
5 Section 7
Insert:
telemarketing call means:
(a) a telemarketing call (within the
meaning of the Do Not Call Register Act 2006) that is made to an
Australian number; or
(b) a voice call (within the meaning
of the Do Not Call Register Act 2006) that is made to an Australian
number, where, 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 opinion
polling; or
(iv) to carry out standard
questionnaire‑based research.
6 Section 7
Insert:
telemarketing industry means an industry that
involves carrying on a telemarketing activity (as defined by
section 109B).
7 Section 106
Omit “or the e‑marketing industry” (wherever occurring),
substitute “, the e‑marketing industry or the telemarketing industry”.
8 After section 109A
Insert:
109B
Telemarketing activity
(1) For the purposes of this Part, a telemarketing
activity is an activity to which subsection (2), (3) or (4)
applies.
(2) This subsection applies to an activity
that:
(a) is carried on by a person (the first
person) under a contract or arrangement (other than a contract of
employment); and
(b) consists of:
(i) using telemarketing
calls to market, advertise or promote goods or services, where the first person
is not the supplier or prospective supplier of the goods or services; or
(ii) using telemarketing
calls to advertise or promote a supplier or prospective supplier of goods or
services, where the first person is not the supplier or prospective supplier of
the goods or services; or
(iii) using telemarketing
calls to market, advertise or promote land or interests in land, where the
first person is not the supplier or prospective supplier of the land or
interests in land; or
(iv) using telemarketing
calls to advertise or promote a supplier or prospective supplier of land or
interests in land, where the first person is not the supplier or prospective
supplier of the land or interests in land; or
(v) using telemarketing
calls to market, advertise or promote business opportunities or investment
opportunities, where the first person is not the provider or prospective
provider of the business opportunities or investment opportunities; or
(vi) using telemarketing
calls to advertise or promote a provider, or prospective provider, of business
opportunities or investment opportunities, where the first person is not the
provider or prospective provider of the business opportunities or investment
opportunities.
(3) This subsection applies to an activity
carried on by a person if the activity consists of:
(a) using telemarketing calls to
market, advertise or promote goods or services, where the person is the
supplier or prospective supplier of the goods or services; or
(b) using telemarketing calls to
advertise or promote a supplier or prospective supplier of goods or services,
where the person is the supplier or prospective supplier of the goods or
services; or
(c) using telemarketing calls to
market, advertise or promote land or interests in land, where the person is the
supplier or prospective supplier of the land or interests in land; or
(d) using telemarketing calls to
advertise or promote a supplier or prospective supplier of land or interests in
land, where the person is the supplier or prospective supplier of the land or
interests in land; or
(e) using telemarketing calls to
market, advertise or promote business opportunities or investment
opportunities, where the person is the provider or prospective provider of the
business opportunities or investment opportunities; or
(f) using telemarketing calls to
advertise or promote a provider, or prospective provider, of business
opportunities or investment opportunities, where the person is the provider or
prospective provider of the business opportunities or investment opportunities.
(4) This subsection applies to an activity
carried on by a person if the activity consists of:
(a) using telemarketing calls to
solicit donations; or
(b) using telemarketing calls to
conduct opinion polling; or
(c) using telemarketing calls to carry
out standard questionnaire‑based research.
(5) An expression (other than telemarketing
call) used in this section and in section 5 of the Do Not Call
Register Act 2006 has the same meaning in this section as it has in that
section.
9 After section 110A
Insert:
110B
Sections of the telemarketing industry
(1) For the purposes of this Part, sections
of the telemarketing industry are to be ascertained in accordance with
this section.
(2) If no determination is in force under
subsection (3), all of the persons carrying on, or proposing to carry on,
telemarketing activities constitute a single section of the telemarketing
industry for the purposes of this Part.
(3) The ACMA may, by legislative instrument,
determine that persons carrying on, or proposing to carry on, one or more
specified kinds of telemarketing activity constitute a section of the
telemarketing industry for the purposes of this Part.
(4) The section must be identified in the
determination by a unique name and/or number.
(5) A determination under subsection (3)
has effect accordingly.
(6) Sections of the telemarketing industry
determined under subsection (3):
(a) need not be mutually exclusive;
and
(b) may consist of the aggregate of
any 2 or more sections of the telemarketing industry mentioned in
subsection (2) or determined under subsection (3); and
(c) may be subsets of a section of the
telemarketing industry mentioned in subsection (2) or determined under
subsection (3).
(7) Subsection (6) does not, by
implication, limit subsection (3).
10 After section 111A
Insert:
111AA
Participants in a section of the telemarketing industry
For the
purposes of this Part, if a person is a member of a group that constitutes a
section of the telemarketing industry, the person is a participant in
that section of the telemarketing industry.
11 After subsection 112(1A)
Insert:
(1B) The Parliament intends that bodies or
associations that the ACMA is satisfied represent sections of the telemarketing
industry should develop codes (industry codes) that are to apply
to participants in the respective sections of the industry in relation to the
telemarketing activities of the participants.
12 Subsection 112(2)
Omit “and 125”, substitute “, 125 and 125A”.
13 Subsection 112(2)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
14 After subsection 112(3B)
Insert:
(3C) In determining whether public interest
considerations are being addressed in a way that does not impose undue
financial and administrative burdens on participants in sections of the
telemarketing industry, the ACMA must have regard to:
(a) the number of persons who would be
likely to benefit from the code or standard concerned; and
(b) the extent to which those persons
are householders or small business operators; and
(c) the legitimate business interests
of participants in sections of the telemarketing industry.
15 Subsection 112(4)
Omit “and (3B)”, substitute “, (3B) and (3C)”.
16 Subsection 113(2)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
17 At the end of subsection 113(3)
Add:
; (w) record‑keeping practices to
be followed in relation to telemarketing calls made or attempted to be made;
(x) action to be taken to limit the
total number of telemarketing calls attempted to be made, by a particular
participant in a section of the telemarketing industry, during a particular
period, where the recipient answers the attempted call, but the attempted call
does not have any content;
(y) action to be taken to limit the
total number of telemarketing calls made, or attempted to be made, by a
particular participant in a section of the telemarketing industry, during a
particular period to a particular telephone number.
18 Paragraph 117(1)(a)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
19 Paragraph 117(1)(b)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
20 Paragraph 117(1)(h)
Before “the ACMA”, insert “except in a case where the code applies
to participants in a section of the telemarketing industry and deals with one
or more matters relating to the telemarketing activities of those
participants—”.
21 Subparagraph 117(1)(k)(iii)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
22 Subsection 118(1)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
23 Paragraph 118(1)(a)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
24 Subsection 118(3)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
25 Paragraph 118(4A)(c)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
26 Subsection 119(1)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
Note: The heading to section 119 is altered by
omitting “or the e‑marketing industry” and substituting “, the
e‑marketing industry or the telemarketing industry”.
27 Paragraph 119(1)(b)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
28 Subparagraph 123(1)(a)(i)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
29 Subparagraph 123(1)(a)(ii)
Omit “e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
30 Paragraph 124(1)(a)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
31 Subparagraph 124(1)(c)(ii)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
32 Subparagraph 125(1)(a)(i)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
33 Subparagraph 125(1)(a)(ii)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
34 Subsection 125(7)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
35 Subsection 125(7)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
36 After section 125
Insert:
125A
ACMA must determine certain industry standards relating to the telemarketing
industry
(1) Before the commencement of Part 2 of
the Do Not Call Register Act 2006, the ACMA must, by legislative
instrument, determine a standard that:
(a) applies to participants in each
section of the telemarketing industry; and
(b) deals with the following matters
relating to the telemarketing activities of those participants:
(i) restricting the hours
and/or days during which telemarketing calls may be made or attempted to be
made;
(ii) requiring that a
telemarketing call must contain specified information about the relevant
participant;
(iii) requiring that, if a
person other than the relevant participant caused a telemarketing call to be
made, the call must contain specified information about the person who caused
the call to be made;
(iv) requiring the relevant
participant to terminate a telemarketing call if a specified event happens;
(v) requiring the relevant
participant to ensure that calling line identification is enabled in respect of
the making of a telemarketing call; and
(c) is expressed to commence at the
same time as the commencement of Part 2 of the Do Not Call Register Act
2006.
(2) A standard under subsection (1) is
to be known as an industry standard.
(3) If the ACMA is satisfied that a body or
association represents a section of the telemarketing industry, the ACMA must
consult the body or association before determining a standard under
subsection (1).
(4) The ACMA must ensure that a standard is
in force under subsection (1) at all times after the commencement of
Part 2 of the Do Not Call Register Act 2006.
37 Subsection 130(1)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
38 Paragraphs 130(1)(a) and (b)
Omit “or e‑marketing activities”, substitute “, e‑marketing
activities or telemarketing activities”.
39 Subsection 133(1)
Omit “and the Telecommunications Industry Ombudsman”.
40 After subsection 133(1)
Insert:
(1A) Before determining or varying an industry
standard (other than an industry standard under section 125A), the ACMA
must consult the Telecommunications Industry Ombudsman.
41 At the end of Division 5 of Part 6
Add:
135A
Consultation with the States and Territories
Before determining or varying an
industry standard under section 125A, the ACMA must consult:
(a) each State; and
(b) the Australian Capital Territory;
and
(c) the Northern Territory.
Part 2—Amendments commencing at the same time as Part 2 of the
Do Not Call Register Act 2006 commences
Australian Communications and Media
Authority Act 2005
42 After subparagraph 8(1)(j)(i)
Insert:
(ia) the Do Not Call
Register Act 2006; or
Telecommunications Act 1997
43 Section 7 (after paragraph (h) of the definition
of civil penalty provision)
Insert:
(i) subsection 139(1); or
(j) subsection 139(2); or
44 Section 7 (after paragraph (c) of the
definition of ACMA’s telecommunications powers)
Insert:
(ca) the Do Not Call Register Act
2006; or
45 Paragraph 121(1)(a)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
46 Subsection 122(1)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
47 Subsection 128(1)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
48 Subsection 129(1)
Omit “or the e‑marketing industry”, substitute “, the e‑marketing
industry or the telemarketing industry”.
49 At the end of Division 7 of Part 6
Add:
139
Agreements for the carrying on of telemarketing activities must require
compliance with this Part
(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 carry on one or more
telemarketing activities; and
(b) the contract, arrangement or
understanding does not contain an express provision to the effect that the
other person will comply with this Part in relation to the telemarketing
activities 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: Part 31 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.
50 Subsection 492(5) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
51 Subsection 502(5) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
52 After paragraph 508(ab)
Insert:
(ac) a contravention of the Do Not
Call Register Act 2006 or regulations under that Act;
53 At the end of section 509
Add:
(5) If it appears to the ACMA that:
(a) a person (the first person)
wishes to make a complaint about:
(i) a contravention of a
code registered under Part 6, where the code applies to participants in a
section of the telemarketing industry (within the meaning of Part 6) and
deals with one or more matters relating to the telemarketing activities (within
the meaning of Part 6) of those participants; or
(ii) a contravention of section 128
in relation to an industry standard, where the standard applies to participants
in a section of the telemarketing industry (within the meaning of Part 6)
and deals with one or more matters relating to the telemarketing activities
(within the meaning of Part 6) of those participants; or
(iii) a contravention of the
Do Not Call Register Act 2006 or regulations under that Act; and
(b) the complaint relates to a voice
call (within the meaning of the Do Not Call Register Act 2006) made, or
attempted to be made, to an Australian number; and
(c) the first person does not have
sufficient information to identify:
(i) the person who made,
or attempted to make, the call; or
(ii) the person who caused
the call to be made or attempted; and
(d) the first person gives the ACMA
such information about the call as the ACMA requires;
it is the duty of the ACMA to take reasonable steps to
assist the first person to identify whichever of the following is applicable:
(e) the person who made, or attempted
to make, the call;
(f) the person who caused the call to
be made or attempted.
(6) Subsection (5) does not limit
subsection (4).
54 After paragraph 510(1)(ab)
Insert:
(ac) in the case of a matter covered by
paragraph 508(ac)—the ACMA has reason to suspect that a person may have
contravened the Do Not Call Register Act 2006 or regulations under that
Act; or
55 Paragraph 512(1A)(a)
Repeal the paragraph, substitute:
(a) the matter relates to a possible
breach of:
(i) the Spam Act 2003 or
regulations under that Act; or
(ii) the Do Not Call
Register Act 2006 or regulations under that Act; and
56 Paragraph 512(6)(a)
Repeal the paragraph, substitute:
(a) the matter relates to a possible
breach of:
(i) the Spam Act 2003 or
regulations under that Act; or
(ii) the Do Not Call
Register Act 2006 or regulations under that Act; and
57 Paragraph 513(2)(a)
Repeal the paragraph, substitute:
(a) the matter relates to a possible
breach of:
(i) the Spam Act 2003 or
regulations under that Act; or
(ii) the Do Not Call
Register Act 2006 or regulations under that Act; and
58 After section 515
Insert:
515A
Reference of matters to Privacy Commissioner
(1) This section applies to a complaint about
any of the following matters:
(a) a contravention of a code
registered under Part 6, where the code applies to participants in a
section of the telemarketing industry (within the meaning of Part 6) and
deals with one or more matters relating to the telemarketing activities (within
the meaning of Part 6) of those participants;
(b) a contravention of
section 128 in relation to an industry standard, where the standard
applies to participants in a section of the telemarketing industry (within the
meaning of Part 6) and deals with one or more matters relating to the
telemarketing activities (within the meaning of Part 6) of those
participants;
(c) a contravention of the Do Not
Call Register Act 2006 or regulations under that Act.
(2) If, before the ACMA starts, or after it
has started, an investigation of a matter to which a complaint relates, the
ACMA forms the opinion that:
(a) a complaint relating to that
matter has been, or could have been, made by the complainant to the Privacy
Commissioner under section 36 of the Privacy Act 1988; and
(b) the matter could be more
conveniently or effectively dealt with by the Privacy Commissioner;
the ACMA may decide not to investigate the matter, or not
to investigate the matter further, as the case may be.
(3) If the ACMA decides as mentioned in
subsection (2), it must:
(a) transfer the complaint to the
Privacy Commissioner; and
(b) give written notice to the
complainant stating that the complaint has been so transferred; and
(c) give the Privacy Commissioner any
information or documents that relate to the complaint and that are in the ACMA’s
possession or under its control.
(4) A complaint transferred under
subsection (3) to the Privacy Commissioner is taken to be a complaint made
to the Privacy Commissioner under section 36 of the Privacy Act 1988.
59 Paragraph 518(3)(a)
Repeal the paragraph, substitute:
(a) the matter relates to a possible
breach of:
(i) the Spam Act 2003 or
regulations under that Act; or
(ii) the Do Not Call
Register Act 2006 or regulations under that Act; and
60 After subsection 570(4)
Insert:
(4A) Subsections (3) and (4) do not apply
to a contravention of subsection 139(1) or (2).
(4B) Section 25 of the Do Not Call
Register Act 2006 applies to a contravention of subsection 139(1) or (2) of
this Act in a corresponding way to the way in which it applies to a contravention
of subsection 12(1) or (2) of the Do Not Call Register Act 2006, subject
to the following modifications:
(a) each reference in section 25
of the Do Not Call Register Act 2006 to subsection 24(1) of that Act
includes a reference to subsection (1) of this section;
(b) each reference in section 25
of the Do Not Call Register Act 2006 to a civil penalty provision
includes a reference to subsection 139(1) or (2) of this Act;
(c) each reference in section 25
of the Do Not Call Register Act 2006 to a civil penalty order includes a
reference to an order under subsection (1) of this section.
61 Subsection 572B(6) (definition of this Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications
(Consumer Protection and Service Standards) Act 1999; and
(b) the Do Not Call Register Act
2006.
62 Section 574A (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
63 Section 582
After “regulations under the Spam Act 2003,” (wherever
occurring), insert “the Do Not Call Register Act 2006, regulations under
the Do Not Call Register Act 2006,”.
64 Section 582
After “Instruments under this Act, the Spam Act 2003”,
insert “, the Do Not Call Register Act 2006”.
65 Subsection 585(2) (definition of civil penalty
provision)
Repeal the definition, substitute:
civil penalty provision includes:
(a) a civil penalty provision within
the meaning of the Spam Act 2003; and
(b) a civil penalty provision within
the meaning of the Do Not Call Register Act 2006.
66 Subsection 585(2) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
67 Subsection 586(2) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
68 Subsection 587(4) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
69 Subsection 589(6) (at the end of the definition of this
Act)
Add:
; and (d) the Do Not Call Register Act
2006.
70 Subsection 591(3) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
71 Subsection 592(2) (at the end of the definition of this
Act)
Add:
; and (c) the Do Not Call Register Act 2006
and regulations under that Act.
Telecommunications (Carrier Licence
Charges) Act 1997
72 Subsection 15(4) (definition of ACMA’s
telecommunications functions)
Omit “Telecommunications Act 1997.”, substitute:
Telecommunications Act 1997, but does not include
functions conferred on the ACMA by or under:
(a) the Do Not Call Register Act
2006; or
(b) the Telecommunications Act 1997
to the extent to which that Act relates to the Do Not Call Register Act 2006;
or
(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).
73 Subsection 15(4) (definition of ACMA’s
telecommunications powers)
Omit “Telecommunications Act 1997.”, substitute:
Telecommunications Act 1997, but does not include
powers conferred on the ACMA by or under:
(a) the Do Not Call Register Act
2006; or
(b) the Telecommunications Act 1997
to the extent to which that Act relates to the Do Not Call Register Act 2006;
or
(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).