An Act about spam, and for related purposes
Part 1—Introduction
1
Short title [see
Note 1]
This Act may be cited as the Spam Act
2003.
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.
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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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12 December 2003
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2. Sections 3 to 14
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The day on which this Act receives the Royal Assent.
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12 December 2003
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3. Parts 2 to 6
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On the day after the end of the period of 120 days
beginning on the day on which this Act receives the Royal Assent.
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10 April 2004
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4. Section 41
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On the day after the end of the period of 120 days beginning
on the day on which this Act receives the Royal Assent.
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10 April 2004
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5. Section 42
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The day on which this Act receives the Royal Assent.
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12 December 2003
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6. Sections 43 to 46
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On the day after the end of the period of 120 days
beginning on the day on which this Act receives the Royal Assent.
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10 April 2004
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7. Section 47
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The day on which this Act receives the Royal Assent.
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12 December 2003
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8. Schedule 1
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On the day after the end of the period of 120 days
beginning on the day on which this Act receives the Royal Assent.
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10 April 2004
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9. Schedule 2
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The day on which this Act receives the Royal Assent.
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12 December 2003
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10. Schedule 3
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On the day after the end of the period of 120 days
beginning on the day on which this Act receives the Royal Assent.
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10 April 2004
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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
Simplified outline
The following is a simplified outline of
this Act:
• This Act sets up a scheme
for regulating commercial e‑mail and other types of commercial electronic
messages.
• Unsolicited commercial
electronic messages must not be sent.
• Commercial electronic
messages must include information about the individual or organisation who
authorised the sending of the message.
• Commercial electronic
messages must contain a functional unsubscribe facility.
• Address‑harvesting software
must not be supplied, acquired or used.
• An electronic address list
produced using address‑harvesting software must not be supplied, acquired or
used.
• The main remedies for
breaches of this Act are civil penalties and injunctions.
Note: The Telecommunications Act 1997
contains additional provisions about commercial electronic messages. Those
provisions include Part 6 (industry codes and standards), Part 26
(investigations), Part 27 (information‑gathering powers) and Part 28
(enforcement).
4
Definitions
In this Act, unless the contrary
intention appears:
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 Competition and Consumer Act 2010.
address‑harvesting software means software
that is specifically designed or marketed for use for:
(a) searching the internet for
electronic addresses; and
(b) collecting, compiling, capturing
or otherwise harvesting those electronic addresses.
agency includes:
(a) an armed force; and
(b) a police force.
Australia, when used in a geographical sense,
includes the external Territories.
Australian link has the meaning given by
section 7.
authorise, when used in relation to the
sending of an electronic message, has a meaning affected by section 8.
business includes a venture or concern in
trade or commerce, whether or not conducted on a regular, repetitive or
continuous basis.
carriage service has the same meaning as in
the Telecommunications Act 1997.
civil penalty provision means any of the
following provisions:
(a) subsections 16(1), (6) and (9);
(b) subsections 17(1) and (5);
(c) subsections 18(1) and (6);
(d) subsections 20(1) and (5);
(e) subsections 21(1) and (3);
(f) subsections 22(1) and (3);
(g) a provision of the regulations
that is declared to be a civil penalty provision in accordance with paragraph
45(2)(c).
commercial electronic message has the meaning
given by section 6.
consent, when used in relation to the sending
of an electronic message, has the meaning given by Schedule 2.
data processing device has the same meaning
as in the Telecommunications Act 1997.
dealing with, when used in relation to a
commercial electronic message, includes:
(a) accessing the message; and
(b) responding to the message; and
(c) filtering the message.
designated commercial electronic message has
the meaning given by Schedule 1.
director includes a member of the governing
body of an organisation.
educational institution includes:
(a) a pre‑school; and
(b) a school; and
(c) a college; and
(d) a university.
electronic message has the meaning given by
section 5.
employee includes an individual who is in the
service of an armed force, a police force or a religious organisation.
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 Competition
and Consumer Act 2010.
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.
harvested‑address list means:
(a) a list of electronic addresses; or
(b) a collection of electronic
addresses; or
(c) a compilation of electronic
addresses;
where the production of the list, collection or
compilation is, to any extent, directly or indirectly attributable to the use
of address‑harvesting software.
international convention means:
(a) a convention to which Australia is a party; or
(b) an agreement between Australia and a foreign country.
internet carriage service means a listed
carriage service that enables end‑users to access the internet.
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).
listed carriage service has the same meaning
as in the Telecommunications Act 1997.
logo includes a trade mark.
message means information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech,
music or other sounds; or
(d) whether in the form of visual
images (animated or otherwise); or
(e) whether in any other form; or
(f) whether in any combination of
forms.
mistake means reasonable mistake of fact.
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: 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: 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 electronic account‑holder, in
relation to the sending of an electronic message to an electronic address,
means:
(a) if the electronic address is an e‑mail
address—the individual or organisation who is responsible for the relevant e‑mail
account; or
(b) if the message is sent to an
electronic address in connection with an instant messaging service—the
individual or organisation who is responsible for the relevant instant
messaging account; or
(c) if the electronic address is a
telephone number—the individual or organisation who is responsible for the
relevant telephone account; or
(d) in any other case—the individual
or organisation who is responsible for the relevant account.
send includes attempt to send.
Note: See also section 9.
services has the same meaning as in the Competition
and Consumer Act 2010.
software includes a combination of software
and associated data.
standard telephone service has the same
meaning as in the Telecommunications (Consumer Protection and Service
Standards) Act 1999.
supply:
(a) when used in relation to goods or
services—has the same meaning as in the Competition and Consumer Act 2010;
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.
use has a meaning affected by section 11.
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 customer with a disability (for
example, because the customer has a hearing impairment)—a call that is
equivalent to a call covered by either of those paragraphs;
whether or not the customer responds by way of pressing
buttons on a telephone handset or similar thing.
5
Electronic messages
Basic definition
(1) For the purposes of this Act, an electronic
message is a message sent:
(a) using:
(i) an internet carriage
service; or
(ii) any other listed
carriage service; and
(b) to an electronic address in
connection with:
(i) an e‑mail account; or
(ii) an instant messaging
account; or
(iii) a telephone account;
or
(iv) a similar account.
Note: E‑mail addresses and telephone numbers are
examples of electronic addresses.
(2) For the purposes of subsection (1),
it is immaterial whether the electronic address exists.
(3) For the purposes of subsection (1),
it is immaterial whether the message reaches its intended destination.
(4) Subsection (1) has effect subject to
subsection (5).
Excluded messages—voice calls
(5) If a message is sent by way of a voice
call made using a standard telephone service, the message is not an electronic
message for the purposes of this Act.
6
Commercial electronic messages
Basic definition
(1) For the purposes of this Act, a commercial
electronic message is an electronic message, where, having regard to:
(a) the content of the message; and
(b) the way in which the message is
presented; and
(c) the content that can be located
using the links, telephone numbers or contact information (if any) set out in
the message;
it would be concluded that the purpose, or one of the
purposes, of the message is:
(d) to offer to supply goods or
services; or
(e) to advertise or promote goods or
services; or
(f) to advertise or promote a
supplier, or prospective supplier, of goods or services; or
(g) to offer to supply land or an
interest in land; or
(h) to advertise or promote land or an
interest in land; or
(i) to advertise or promote a
supplier, or prospective supplier, of land or an interest in land; or
(j) to offer to provide a business
opportunity or investment opportunity; or
(k) to advertise or promote a business
opportunity or investment opportunity; or
(l) to advertise or promote a
provider, or prospective provider, of a business opportunity or investment
opportunity; or
(m) to assist or enable a person, by a
deception, to dishonestly obtain property belonging to another person; or
(n) to assist or enable a person, by a
deception, to dishonestly obtain a financial advantage from another person; or
(o) to assist or enable a person to
dishonestly obtain a gain from another person; or
(p) a purpose specified in the
regulations.
(2) For the purposes of paragraphs (1)(d)
to (l), it is immaterial whether the goods, services, land, interest or
opportunity exists.
(3) For the purposes of paragraphs (1)(d)
to (l), it is immaterial whether it is lawful to acquire the goods, services,
land or interest or take up the opportunity.
(4) Any of the following:
(a) the supplier or prospective
supplier mentioned in paragraph (1)(f) or (i);
(b) the provider or prospective
provider mentioned in paragraph (1)(l);
(c) the person first mentioned in paragraph (1)(m),
(n) or (o);
may be the individual or organisation who sent the message
or authorised the sending of the message.
(5) Paragraphs (1)(d) to (p) are to be
read independently of each other.
(6) Subsection (1) has effect subject to
subsection (7).
Excluded messages—regulations
(7) The regulations may provide that a
specified kind of electronic message is not a commercial electronic
message for the purposes of this Act.
Interpretation
(8) An expression used in paragraph (1)(m)
of this section and in section 134.1 of the Criminal Code has the
same meaning in that paragraph as it has in that section.
(9) An expression used in paragraph (1)(n)
of this section and in section 134.2 of the Criminal Code has the
same meaning in that paragraph as it has in that section.
(10) An expression used in paragraph (1)(o)
of this section and in section 135.1 of the Criminal Code has the
same meaning in that paragraph as it has in that section.
7
Australian link
For the purposes of this Act, a
commercial electronic message has an Australian link if, and only
if:
(a) the message originates in Australia; or
(b) the individual or organisation who
sent the message, or authorised the sending of the message, is:
(i) an individual who is
physically present in Australia when the message is sent; or
(ii) an organisation whose
central management and control is in Australia when the message is sent; or
(c) the computer, server or device
that is used to access the message is located in Australia; or
(d) the relevant electronic account‑holder
is:
(i) an individual who is
physically present in Australia when the message is accessed; or
(ii) an organisation that
carries on business or activities in Australia when the message is accessed; or
(e) if the message cannot be delivered
because the relevant electronic address does not exist—assuming that the
electronic address existed, it is reasonably likely that the message would have
been accessed using a computer, server or device located in Australia.
8
Authorising the sending of electronic messages
Attribution of authorisation to organisation
(1) For the purposes of this Act (including subsection (2)),
if:
(a) an individual authorises the
sending of an electronic message; and
(b) the individual does so on behalf
of an organisation;
then:
(c) the organisation is taken to
authorise the sending of the electronic message; and
(d) the individual is taken not to
authorise the sending of the electronic message.
Self‑authorisation
(2) For the purposes of this Act, if:
(a) an electronic message is sent by
an individual or organisation; and
(b) the sending of the message is not
authorised by any other individual or organisation;
the first‑mentioned individual or organisation is taken to
authorise the sending of the message.
9
Sending of electronic messages—carriage service providers
(1) For the purposes of this Act, a person
does not send an electronic message, or cause an electronic
message to be sent, merely because the person supplies a carriage service that
enables the message to be sent.
(2) Subsection (1) is enacted for the
avoidance of doubt.
10
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.
11
Extended meaning of use
Unless the contrary intention appears, a
reference in this Act to the use of a thing is a reference to the
use of the thing either:
(a) in isolation; or
(b) in conjunction with one or more
other things.
12
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.
13
Extension to external Territories
This Act extends to every external
Territory.
14
Extra‑territorial application
Unless the contrary intention appears,
this Act extends to acts, omissions, matters and things outside Australia.
Part 2—Rules about sending commercial electronic messages
15
Simplified outline
The following is a simplified outline of
this Part:
• Unsolicited commercial
electronic messages must not be sent.
• Commercial electronic
messages must include information about the individual or organisation who
authorised the sending of the message.
• Commercial electronic
messages must contain a functional unsubscribe facility.
16
Unsolicited commercial electronic messages must not be sent
(1) A person must not send, or cause to be
sent, a commercial electronic message that:
(a) has an Australian link; and
(b) is not a designated commercial
electronic message.
Note 1: For Australian link, see section 7.
Note 2: For designated commercial electronic
message, see Schedule 1.
(2) Subsection (1) does not apply if the
relevant electronic account‑holder consented to the sending of the message.
Note: For the meaning of consent, see
Schedule 2.
(3) Subsection (1) does not apply if the
person:
(a) did not know; and
(b) could not, with reasonable
diligence, have ascertained;
that the message had an Australian link.
(4) Subsection (1) does not apply if the
person sent the message, or caused the message to be sent, by mistake.
(5) A person who wishes to rely on subsection (2),
(3) or (4) bears an evidential burden in relation to that matter.
Message must not be sent to a non‑existent electronic
address
(6) A person must not send, or cause to be
sent, a commercial electronic message to a non‑existent electronic address if:
(a) the person did not have reason to
believe that the electronic address existed; and
(b) the electronic message:
(i) has an Australian
link; and
(ii) is not a designated
commercial electronic message.
(7) Subsection (6) does not apply if the
person:
(a) did not know; and
(b) could not, with reasonable
diligence, have ascertained;
that the message had an Australian link.
(8) A person who wishes to rely on subsection (7)
bears an evidential burden in relation to that matter.
Ancillary contraventions
(9) A person must not:
(a) aid, abet, counsel or procure a
contravention of subsection (1) or (6); or
(b) induce, whether by threats or
promises or otherwise, a contravention of subsection (1) or (6); or
(c) be in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention of subsection (1)
or (6); or
(d) conspire with others to effect a
contravention of subsection (1) or (6).
(10) A person does not contravene subsection (9)
merely because the person supplies a carriage service that enables an
electronic message to be sent.
Civil penalty provisions
(11) Subsections (1), (6) and (9) are civil
penalty provisions.
Note: Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
17
Commercial electronic messages must include accurate sender information
(1) A person must not send, or cause to be
sent, a commercial electronic message that has an Australian link unless:
(a) the message clearly and accurately
identifies the individual or organisation who authorised the sending of the
message; and
(b) the message includes accurate
information about how the recipient can readily contact that individual or
organisation; and
(c) that information complies with the
condition or conditions (if any) specified in the regulations; and
(d) that information is reasonably
likely to be valid for at least 30 days after the message is sent.
Note: For Australian link, see section 7.
(2) Subsection (1) does not apply if the
person:
(a) did not know; and
(b) could not, with reasonable
diligence, have ascertained;
that the message had an Australian link.
(3) Subsection (1) does not apply if the
person sent the message, or caused the message to be sent, by mistake.
(4) A person who wishes to rely on subsection (2)
or (3) bears an evidential burden in relation to that matter.
Ancillary contraventions
(5) 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).
(6) A person does not contravene subsection (5)
merely because the person supplies a carriage service that enables an
electronic message to be sent.
Civil penalty provisions
(7) Subsections (1) and (5) are civil
penalty provisions.
Note: Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
18
Commercial electronic messages must contain a functional unsubscribe facility
(1) A person must not send, or cause to be
sent, a commercial electronic message that:
(a) has an Australian link; and
(b) is not a designated commercial
electronic message;
unless:
(c) the message includes:
(i) a statement to the
effect that the recipient may use an electronic address set out in the message
to send an unsubscribe message to the individual or organisation who authorised
the sending of the first‑mentioned message; or
(ii) a statement to similar
effect; and
(d) the statement is presented in a
clear and conspicuous manner; and
(e) the electronic address is
reasonably likely to be capable of receiving:
(i) the recipient’s
unsubscribe message (if any); and
(ii) a reasonable number of
similar unsubscribe messages sent by other recipients (if any) of the same
message;
at all times during a period of
at least 30 days after the message is sent; and
(f) the electronic address is
legitimately obtained; and
(g) the electronic address complies
with the condition or conditions (if any) specified in the regulations.
Note 1: For unsubscribe message, see subsection (8).
Note 2: For Australian link, see section 7.
Note 3: For designated commercial electronic
message, see Schedule 1.
(2) Subsection (1) does not apply if the
person:
(a) did not know; and
(b) could not, with reasonable
diligence, have ascertained;
that the message had an Australian link.
(3) Subsection (1) does not apply to the
extent (if any) to which it is inconsistent with the terms of a contract or
other agreement between:
(a) the individual or organisation who
authorised the sending of the first‑mentioned message; and
(b) the relevant electronic account‑holder.
(4) Subsection (1) does not apply if the
person sent the message, or caused the message to be sent, by mistake.
(5) A person who wishes to rely on subsection (2),
(3) or (4) bears an evidential burden in relation to that matter.
Ancillary contraventions
(6) A person must not:
(a) aid, abet, counsel or procure a
contravention of subsection (1); or
(b) induce, whether by threats or
promises or otherwise, a contravention of subsection (1); or
(c) be in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention of subsection (1);
or
(d) conspire with others to effect a
contravention of subsection (1).
(7) A person does not contravene subsection (6)
merely because the person supplies a carriage service that enables an
electronic message to be sent.
Civil penalty provisions
(8) Subsections (1) and (6) are civil
penalty provisions.
Note: Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
Unsubscribe message
(9) For the purposes of the application of
this section to a commercial electronic message, where the sending of the
message is authorised by an individual or organisation, an unsubscribe
message is:
(a) an electronic message to the
effect that the relevant electronic account‑holder does not want to receive any
further commercial electronic messages from or authorised by that individual or
organisation; or
(b) an electronic message to similar
effect.
Part 3—Rules about address‑harvesting software and harvested‑address
lists
19
Simplified outline
The following is a simplified outline of
this Part:
• Address‑harvesting software
must not be supplied, acquired or used.
• An electronic address list
produced using address‑harvesting software must not be supplied, acquired or used.
20
Address‑harvesting software and harvested‑address lists must not be supplied
(1) A person (the supplier)
must not supply or offer to supply:
(a) address‑harvesting software; or
(b) a right to use address‑harvesting
software; or
(c) a harvested‑address list; or
(d) a right to use a harvested‑address
list;
to another person (the customer) if:
(e) the supplier is:
(i) an individual who is
physically present in Australia at the time of the supply or offer; or
(ii) a body corporate or
partnership that carries on business or activities in Australia at the time of the supply or offer; or
(f) the customer is:
(i) an individual who is
physically present in Australia at the time of the supply or offer; or
(ii) a body corporate or
partnership that carries on business or activities in Australia at the time of the supply or offer.
Note: For treatment of partnerships, see section 585
of the Telecommunications Act 1997.
(2) Subsection (1) does not apply if the
supplier had no reason to suspect that the customer, or another person,
intended to use the address‑harvesting software or the harvested‑address list,
as the case may be, in connection with sending commercial electronic messages
in contravention of section 16.
(3) Subsection (1) does not apply if the
supplier:
(a) did not know; and
(b) could not, with reasonable
diligence, have ascertained;
that the customer was:
(c) an individual who was physically
present in Australia at the time of the supply or offer; or
(d) a body corporate or partnership that
carried on business or activities in Australia at the time of the supply or
offer.
(4) A person who wishes to rely on subsection (3)
bears an evidential burden in relation to that matter.
Ancillary contraventions
(5) 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
(6) Subsections (1) and (5) are civil
penalty provisions.
Note: Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
21
Address‑harvesting software and harvested‑address lists must not be acquired
(1) A person must not acquire:
(a) address‑harvesting software; or
(b) a right to use address‑harvesting
software; or
(c) a harvested‑address list; or
(d) a right to use a harvested‑address
list;
if the person is:
(e) an individual who is physically
present in Australia at the time of the acquisition; or
(f) a body corporate or partnership
that carries on business or activities in Australia at the time of the acquisition.
Note: For treatment of partnerships, see section 585
of the Telecommunications Act 1997.
(2) Subsection (1) does not apply if the
person did not intend to use the address‑harvesting software or the harvested‑address
list, as the case may be, in connection with sending commercial electronic
messages in contravention of section 16.
Ancillary contraventions
(3) 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
(4) Subsections (1) and (3) are civil
penalty provisions.
Note: Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
22
Address‑harvesting software and harvested‑address lists must not be used
(1) A person must not use:
(a) address‑harvesting software; or
(b) a harvested‑address list;
if the person is:
(c) an individual who is physically
present in Australia at the time of the use; or
(d) a body corporate or partnership
that carries on business or activities in Australia at the time of the use.
Note: For treatment of partnerships, see section 585
of the Telecommunications Act 1997.
(2) Subsection (1) does not apply in
relation to the use of address‑harvesting software or a harvested‑address list,
if the use was not in connection with sending commercial electronic messages in
contravention of section 16.
Ancillary contraventions
(3) 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
(4) Subsections (1) and (3) are civil
penalty provisions.
Note: Part 4 provides for pecuniary penalties
for breaches of civil penalty provisions.
Part 4—Civil penalties
23
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.
• The Federal Court may make
ancillary orders:
(a) directing
the payment of compensation to a victim of a contravention of a civil penalty
provision; and
(b) directing the
payment to the Commonwealth of an amount up to the amount of any financial
benefit that is attributable to a contravention of a civil penalty provision.
Note: Schedule 3 sets up a system of
infringement notices relating to contraventions of civil penalty provisions.
24
Pecuniary penalties for contravention of civil penalty provisions
(1) If the Federal Court is satisfied that a
person has contravened a civil penalty provision, the Court may order the
person to pay to the Commonwealth such pecuniary penalty, in respect of each
contravention, as the Court determines to be appropriate.
(2) 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 the 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.
25
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 16(1), (6) or (9).
Prior record
(2) If:
(a) on a particular day (the first
day), the Federal Court makes an order under subsection 24(1) against a
person in respect of a contravention of a particular civil penalty provision;
and
(b) that is the first occasion on
which the Federal Court makes an order under subsection 24(1) 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 16(1), (6) or (9)—100 penalty units; or
(ii) in any other case—50
penalty units; and
(b) if the Federal 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 16(1), (6) or (9)—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 16(1), (6) or (9)—20 penalty units; or
(ii) in any other case—10
penalty units; and
(b) if the Federal 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 16(1), (6) or (9)—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 16(1), (6) or (9)—500 penalty units; or
(ii) in any other case—250
penalty units; and
(b) if the Federal 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 16(1), (6) or (9)—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 16(1), (6) or (9)—100 penalty units; or
(ii) in any other case—50
penalty units; and
(b) if the Federal 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 16(1), (6) or (9)—2,000 penalty units; or
(ii) in any other
case—1,000 penalty units.
26
Civil action for recovery of pecuniary penalties
(1) The ACMA may institute a proceeding in
the Federal Court for the recovery on behalf of the Commonwealth of a pecuniary
penalty referred to in section 24.
(2) A proceeding under subsection (1)
may be commenced within 6 years after the contravention.
(3) The Federal Court may direct that 2 or
more proceedings under subsection (1) are to be heard together.
27
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.
28
Ancillary orders—compensation
(1) If:
(a) in one or more proceedings under
section 26, the Federal 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 16 in relation to the sending of one or more
commercial electronic messages, 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 messages;
(b) the effect of dealing with the
messages 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 messages;
(d) any loss of business opportunities
suffered by the victim as a result of dealing with the messages;
(e) any other matters that the Court
considers relevant.
(3) The Federal Court may make an order under
subsection (1), whether or not it makes an order under section 24.
(4) An application under subsection (1)
may be made at any time within 6 years after the contravention concerned.
29
Ancillary orders—recovery of financial benefit
(1) If:
(a) in one or more proceedings under
section 26, the Federal 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 may make an order under
subsection (1), whether or not it makes an order under section 24.
(3) An application under subsection (1)
may be made at any time within 6 years after the contravention concerned.
30
Schedule 3 (infringement notices)
Schedule 3 has effect.
Part 5—Injunctions
31
Simplified outline
The following is a simplified outline of
this Part:
• The Federal Court may grant
injunctions in relation to contraventions of civil penalty provisions.
32
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 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 may, on the application of the ACMA,
grant an injunction requiring the person to do that act or thing.
33
Interim injunctions
Grant of interim injunction
(1) If an application is made to the Federal Court
for an injunction under section 32, 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 is not to require an
applicant for an injunction under section 32, as a condition of granting
an interim injunction, to give any undertakings as to damages.
34
Discharge etc. of injunctions
The Federal Court may discharge or vary
an injunction granted under this Part.
35
Certain limits on granting injunctions not to apply
Restraining injunctions
(1) The power of the Federal 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 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.
36
Other powers of the Federal Court unaffected
The powers conferred on the Federal
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—Enforceable undertakings
37
Simplified outline
The following is a simplified outline of
this Part:
• A person may give the ACMA
an enforceable undertaking in connection with a matter relating to:
(a) commercial
electronic messages; or
(b) address‑harvesting
software.
38
Acceptance of undertakings
(1) The ACMA may accept a written undertaking
given by a person for the purposes of this section in connection with a matter
relating to:
(a) commercial electronic messages; or
(b) address‑harvesting software.
(2) The person may withdraw or vary the
undertaking at any time, but only with the consent of the ACMA.
39
Enforcement of undertakings
(1) If the ACMA considers that a person who
gave an undertaking under section 38 has breached any of its terms, the ACMA
may apply to the Federal Court for an order under subsection (2).
(2) If the Federal Court is satisfied that
the person has breached a term of the undertaking, the Court may make any or
all of the following orders:
(a) an order directing the person to
comply with that term of the undertaking;
(b) an order directing the person to
pay to the Commonwealth an amount up to the amount of any financial benefit
that the person has obtained directly or indirectly and that is reasonably
attributable to the breach;
(c) any order that the Court considers
appropriate directing the person to compensate any other person who has
suffered loss or damage as a result of the breach;
(d) any other order that the Court
considers appropriate.
40
Assessment of compensation for breach of undertaking
(1) This section applies if, in a proceeding
under section 39, the Federal Court finds that a person has breached a
term of an undertaking relating to the sending of commercial electronic
messages.
(2) In determining whether another person
(the victim) has suffered loss or damage as a result of the
breach, 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 messages;
(b) the effect of dealing with the
messages 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 messages;
(d) any loss of business opportunities
suffered by the victim as a result of dealing with the messages;
(e) any other matters that the Court
considers relevant.
Part 7—Miscellaneous
41
Formal warnings—breach of civil penalty provision
The ACMA may issue a formal warning if a
person contravenes a civil penalty provision.
42
Additional ACMA functions
The ACMA has the following functions:
(a) to conduct and/or co‑ordinate
community education programs about either or both of the following:
(i) unsolicited commercial
electronic messages;
(ii) address‑harvesting
software;
in consultation with relevant
industry and consumer groups and government agencies;
(b) to conduct and/or commission
research into issues relating to either or both of the following:
(i) unsolicited commercial
electronic messages;
(ii) address‑harvesting
software;
(c) to liaise with regulatory and
other relevant bodies overseas about co‑operative arrangements for the
prohibition or regulation of either or both of the following:
(i) unsolicited commercial
electronic messages;
(ii) address‑harvesting
software.
43
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.
44
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.
45 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
either or both of the following:
(a) commercial electronic messages;
(b) address‑harvesting software.
(2) Regulations made for the purposes of subsection (1)
may:
(a) vest the Federal 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.
46
Review of operation of Act
(1) Before the end of the period of 2 years
after the commencement of this section, 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:
(i) relates to e‑marketing
activities (within the meaning of that Part); and
(ii) relates to activities
that consist of carrying on business as an electronic messaging service
provider (within the meaning of that Part); and
(iii) deals with industry
codes, and industry standards, relating to matters covered by paragraphs
113(3)(q) to (v) of that Act.
(2) The Minister must cause to be prepared a
report of a review under subsection (1).
(3) 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.
47
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 commercial electronic messages
Note: See section 4.
1
Object
The object of this Schedule is to define
the expression designated commercial electronic message.
Note 1: Designated commercial electronic messages must
comply with section 17 (commercial electronic messages must include
information about the individual or organisation who authorised the sending of
the message).
Note 2: Designated commercial electronic messages are
exempt from section 16 (unsolicited commercial electronic messages must
not be sent) and section 18 (commercial electronic messages must contain a
functional unsubscribe facility).
2
Factual information
(1) For the purposes of this Act, an
electronic message is a designated commercial electronic
message if:
(a) the message consists of no more
than factual information (with or without directly‑related comment) and
any or all of the following additional information:
(i) the name, logo and
contact details of the individual or organisation who authorised the sending of
the message;
(ii) the name and contact
details of the author;
(iii) if the author is an
employee—the name, logo and contact details of the author’s employer;
(iv) if the author is a
partner in a partnership—the name, logo and contact details of the partnership;
(v) if the author is a
director or officer of an organisation—the name, logo and contact details of
the organisation;
(vi) if the message is
sponsored—the name, logo and contact details of the sponsor;
(vii) information required to
be included by section 17;
(viii) information that would
have been required to be included by section 18 if that section had
applied to the message; and
(b) assuming that none of that
additional information had been included in the message, the message would not
have been a commercial electronic message; and
(c) the message complies with such
other condition or conditions (if any) as are specified in the regulations.
3
Government bodies, political parties, religious organisations and charities
For the purposes of this Act, an
electronic message is a designated commercial electronic message
if:
(a) the sending of the message is
authorised by any of the following bodies:
(i) a government body;
(ii) a registered political
party;
(iii) a religious
organisation;
(iv) a charity or charitable
institution; and
(b) the message relates to goods or
services; and
(c) the body is the supplier, or
prospective supplier, of the goods or services concerned.
4
Educational institutions
For the purposes of this Act, an
electronic message is a designated commercial electronic message
if:
(a) the sending of the message is
authorised by an educational institution; and
(b) either or both of the following
subparagraphs applies:
(i) the relevant
electronic account‑holder is, or has been, enrolled as a student in that
institution;
(ii) a member or former
member of the household of the relevant electronic account‑holder is, or has
been, enrolled as a student in that institution; and
(c) the message relates to goods or
services; and
(d) the institution is the supplier,
or prospective supplier, of the goods or services concerned.
5
Regulations
The regulations may provide that a
specified kind of electronic message is a designated commercial
electronic message for the purposes of this Act.
Schedule 2—Consent
Note: See section 4.
1
Object
The object of this Schedule is to define
the expression consent, when used in relation to the sending of
an electronic message.
Note: The concept of consent is relevant to section 16
(unsolicited commercial electronic messages must not be sent). Subsection 16(2)
provides that a contravention of subsection 16(1) does not happen if the
relevant electronic account‑holder consented to the sending of the message.
2
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.
3
Users of account authorised to consent on behalf of relevant electronic account‑holder
(1) For the purposes of this Act, if a person
other than the relevant electronic account‑holder uses the relevant account to
send an electronic message about:
(a) consent; or
(b) withdrawal of consent; or
(c) refusal of consent;
that person is taken to have been authorised to send that
message on behalf of the relevant electronic account‑holder.
(2) Subclause (1) does not, by
implication, limit the circumstances in which a person other than the relevant
electronic account‑holder may:
(a) consent; or
(b) withdraw consent; or
(c) refuse consent;
on behalf of the relevant electronic account‑holder.
4 When
consent may be inferred from publication of an electronic address
(1) For the purposes of this Act, the consent
of the relevant electronic account‑holder may not be inferred from the mere
fact that the relevant electronic address has been published.
Exception—conspicuous publication
(2) However, if:
(a) a particular electronic address
enables the public, or a section of the public, to send electronic messages to:
(i) a particular employee;
or
(ii) a particular director
or officer of an organisation; or
(iii) a particular partner
in a partnership; or
(iv) a particular holder of
a statutory or other office; or
(v) a particular self‑employed
individual; or
(vi) an individual from time
to time holding, occupying or performing the duties of, a particular office or
position within the operations of an organisation; or
(vii) an individual, or a
group of individuals, from time to time performing a particular function, or
fulfilling a particular role, within the operations of an organisation; and
(b) the electronic address has been
conspicuously published; and
(c) it would be reasonable to assume
that the publication occurred with the agreement of:
(i) if subparagraph (a)(i),
(ii), (iii), (iv) or (v) applies—the employee, director, officer, partner,
office‑holder or self‑employed individual concerned; or
(ii) if subparagraph (a)(vi)
or (vii) applies—the organisation concerned; and
(d) the publication is not accompanied
by:
(i) a statement to the
effect that the relevant electronic account‑holder does not want to receive
unsolicited commercial electronic messages at that electronic address; or
(ii) a statement to similar
effect;
the relevant electronic account‑holder is taken, for the
purposes of this Act, to have consented to the sending of commercial electronic
messages to that address, so long as the messages are relevant to:
(e) if subparagraph (a)(i), (ii),
(iii), (iv) or (v) applies—the work‑related business, functions or duties of
the employee, director, officer, partner, office‑holder or self‑employed
individual concerned; or
(f) if subparagraph (a)(vi)
applies—the office or position concerned; or
(g) if subparagraph (a)(vii)
applies—the function or role concerned.
5
Regulations about consent
(1) The regulations may provide that, for the
purposes of this Act, the consent of a relevant electronic account‑holder may
not be inferred in the circumstances specified in the regulations.
(2) The regulations may provide that, for the
purposes of this Act, the consent of a relevant electronic account‑holder may
be inferred in the circumstances specified in the regulations.
6 When
withdrawal of consent takes effect
(1) For the purposes of this Act, if:
(a) one or more electronic messages
have been sent to the relevant electronic account‑holder’s electronic address;
and
(b) the relevant electronic account‑holder
has consented to the sending of those commercial electronic messages to that
electronic address; and
(c) an individual or organisation
authorised the sending of those commercial electronic messages to that
electronic address; and
(d) the relevant electronic account‑holder,
or a user of the relevant account, sends the individual or organisation:
(i) a message to the
effect that the account‑holder does not want to receive any further commercial
electronic messages at that electronic address from or authorised by that
individual or organisation; or
(ii) a message to similar
effect;
the withdrawal of consent takes effect at the end of the
period of 5 business days beginning on:
(e) if the message referred to in paragraph (d)
is an electronic message—the day on which the message was sent; or
(f) if the message referred to in paragraph (d)
was sent by post—the day on which service of the message was effected (see
section 29 of the Acts Interpretation Act 1901); or
(g) in any other case—the day on which
the message was delivered.
(2) For the purposes of subclause (1), a
business day is a day that is not a Saturday, a Sunday or a
public holiday in:
(a) if the message referred to in paragraph (1)(d)
is an electronic message—the place to which the message was sent; or
(b) if the message referred to in paragraph (1)(d)
was sent by post—the place to which the message was sent; or
(c) in any other case—the place where
the message was delivered.
Schedule 3—Infringement notices
Note: See section 30.
1
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.
2
Definitions
In this Schedule:
authorised person means:
(a) the Chair of the ACMA; or
(b) a member of the staff of the ACMA
appointed under clause 9.
civil contravention means a contravention of
a civil penalty provision.
infringement notice means an infringement
notice under clause 3.
3 When
an infringement notice can be given
(1) If an authorised person 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
person 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.
4
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
person 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 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: For the amount of penalty, see clause 5.
(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.
5
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 16(1), (6) or (9)
|
20
|
|
2
|
the notice relates to more than 1, but fewer than 50,
alleged contraventions of subsection 16(1), (6) or (9)
|
the number obtained by multiplying 20 by the number of
alleged contraventions
|
|
3
|
the notice relates to 50 or more alleged contraventions of
subsection 16(1), (6) or (9)
|
1,000
|
|
4
|
the notice relates to a single alleged contravention of a
civil penalty provision other than subsection 16(1), (6) or (9)
|
10
|
|
5
|
the notice relates to more than 1, but fewer than 50,
alleged contraventions of a civil penalty provision other than subsection
16(1), (6) or (9)
|
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 16(1), (6) or (9)
|
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 16(1), (6) or (9)
|
4
|
|
2
|
the notice relates to more than 1, but fewer than 50,
alleged contraventions of subsection 16(1), (6) or (9)
|
the number obtained by multiplying 4 by the number of
alleged contraventions
|
|
3
|
the notice relates to 50 or more alleged contraventions of
subsection 16(1), (6) or (9)
|
200
|
|
4
|
the notice relates to a single alleged contravention of a
civil penalty provision other than subsection 16(1), (6) or (9)
|
2
|
|
5
|
the notice relates to more than 1, but fewer than 50,
alleged contraventions of a civil penalty provision other than subsection
16(1), (6) or (9)
|
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 16(1), (6) or (9)
|
100
|
6
Withdrawal of an infringement notice
(1) This clause applies if an infringement
notice is given to a person.
(2) An authorised person 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.
7 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.
8
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
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.
9
Appointment of authorised person
The ACMA may, by writing, appoint a
member of the staff of the ACMA as an authorised person for the purposes of
this Schedule.
10
Regulations
The regulations may make further
provision in relation to infringement notices.