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This is a Bill, not an Act. For current law, see the Acts databases.

DO NOT CALL REGISTER LEGISLATION AMENDMENT BILL 2010

2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Do Not Call Register Legislation
Amendment Bill 2009
No. , 2009
(Broadband, Communications and the Digital Economy)
A Bill for an Act to amend the Do Not Call Register
Act 2006, and for other purposes
i Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Part 1--Amendment of the Do Not Call Register Act 2006
3
Division 1--Amendments
3
Do Not Call Register Act 2006
3
Division 2--Application
29
Part 2--Other amendments
32
Telecommunications Act 1997
32
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 1
A Bill for an Act to amend the Do Not Call Register
1
Act 2006, and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Do Not Call Register Legislation
5
Amendment Act 2009.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 3
Schedule 1--Amendments
1
Part 1--Amendment of the Do Not Call Register Act
2
2006
3
Division 1--Amendments
4
Do Not Call Register Act 2006
5
1 Section 3
6
After:
7
·
Unsolicited telemarketing calls must not be made to a number
8
registered on the Do Not Call Register.
9
insert:
10
·
Unsolicited marketing faxes must not be sent to a number
11
registered on the Do Not Call Register.
12
2 Section 3 (note)
13
After "calls", insert "and marketing faxes".
14
3 Section 4 (definition of authorise)
15
Repeal the definition, substitute:
16
authorise:
17
(a) when used in relation to the making of a telemarketing call--
18
has a meaning affected by clause 6 of Schedule 1; or
19
(b) when used in relation to the sending of a marketing fax--has
20
a meaning affected by clause 6 of Schedule 1A.
21
4 Section 4
22
Insert:
23
business number means an Australian number other than a number
24
that is used, or maintained, exclusively or primarily for private or
25
domestic purposes.
26
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
4 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
5 Section 4 (definition of cause)
1
Repeal the definition, substitute:
2
cause:
3
(a) when used in relation to the making of a telemarketing call--
4
has a meaning affected by subsection 11(9); or
5
(b) when used in relation to the sending of a marketing fax--has
6
a meaning affected by subsection 12B(10).
7
6 Section 4 (after paragraph (d) of the definition of civil
8
penalty provision)
9
Insert:
10
(da)
subsection
12B(1);
11
(db)
subsection
12B(8);
12
(dc)
subsection
12C(1);
13
(dd)
subsection
12C(2);
14
7 Section 4 (definition of consent)
15
After "call", insert "or the sending of a marketing fax".
16
8 Section 4 (definition of dealing with)
17
Repeal the definition, substitute:
18
dealing with:
19
(a) when used in relation to a telemarketing call--includes
20
retrieving the call from a voicemail system or similar system;
21
or
22
(b) when used in relation to a marketing fax--includes:
23
(i) printing the fax; and
24
(ii) retrieving the fax from a device or a computer system.
25
9 Section 4
26
Insert:
27
designated marketing fax has the meaning given by Schedule 1A.
28
10 Section 4 (definition of employee)
29
Repeal the definition, substitute:
30
employee:
31
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 5
(a) when used in clause 4 of Schedule 1--has a meaning affected
1
by clause 7 of Schedule 1; or
2
(b) when used in clause 4 of Schedule 1A--has a meaning
3
affected by clause 7 of Schedule 1A.
4
11 Section 4 (definition of employer)
5
Repeal the definition, substitute:
6
employer:
7
(a) when used in clause 4 of Schedule 1--has a meaning affected
8
by clause 7 of Schedule 1; or
9
(b) when used in clause 4 of Schedule 1A--has a meaning
10
affected by clause 7 of Schedule 1A.
11
12 Section 4
12
Insert:
13
express consent does not include registered consent.
14
13 Section 4
15
Insert:
16
fax has a meaning affected by section 5A.
17
14 Section 4
18
Insert:
19
industry classification has the meaning given by section 5C.
20
15 Section 4
21
Insert:
22
marketing fax has the meaning given by section 5B.
23
16 Section 4
24
Insert:
25
registered consent means consent entered on the Do Not Call
26
Register.
27
17 Section 4
28
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
6 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Insert:
1
relevant account-holder, in relation to an Australian number,
2
means:
3
(a) if an individual or organisation is solely responsible for the
4
relevant account--the individual or organisation; or
5
(b) if 2 or more individuals and/or organisations are jointly
6
responsible for the relevant account--any of those
7
individuals or organisations.
8
18 Section 4 (definition of relevant telephone account-holder)
9
Repeal the definition.
10
19 Section 4
11
Insert:
12
send includes attempt to send.
13
20 Subsection 5(1)
14
Omit "a telephone", substitute "an Australian".
15
21 Paragraphs 5(1)(c) and (d)
16
Omit "telephone" (wherever occurring).
17
22 After section 5
18
Insert:
19
5A Faxes
20
A reference in this Act to a fax is a reference to a fax, whether or
21
not:
22
(a) the fax is a facsimile of a physical document; or
23
(b) the fax was created by computer software; or
24
(c) the sending of the fax involves the use of:
25
(i) a fax machine; or
26
(ii) a fax server; or
27
(iii) a fax gateway; or
28
(iv) a mail-to-fax system; or
29
(v) equipment specified in the regulations; or
30
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 7
(vi) a system specified in the regulations.
1
5B Marketing faxes
2
Basic definition
3
(1) For the purposes of this Act, a marketing fax is a fax sent to an
4
Australian number, where, having regard to:
5
(a) the content of the fax; and
6
(b) the presentational aspects of the fax; and
7
(c) the content that can be obtained using the numbers, URLs or
8
contact information (if any) mentioned in the fax;
9
it would be concluded that the purpose, or one of the purposes, of
10
the fax is:
11
(d) to offer to supply goods or services; or
12
(e) to advertise or promote goods or services; or
13
(f) to advertise or promote a supplier, or prospective supplier, of
14
goods or services; or
15
(g) to offer to supply land or an interest in land; or
16
(h) to advertise or promote land or an interest in land; or
17
(i) to advertise or promote a supplier, or prospective supplier, of
18
land or an interest in land; or
19
(j) to offer to provide a business opportunity or investment
20
opportunity; or
21
(k) to advertise or promote a business opportunity or investment
22
opportunity; or
23
(l) to advertise or promote a provider, or prospective provider,
24
of a business opportunity or investment opportunity; or
25
(m) to solicit donations; or
26
(n) a purpose specified in the regulations.
27
(2) For the purposes of paragraphs (1)(d) to (l), it is immaterial
28
whether the goods, services, land, interest or opportunity exists.
29
(3) For the purposes of paragraphs (1)(d) to (l), it is immaterial
30
whether it is lawful to acquire the goods, services, land or interest
31
or take up the opportunity.
32
(4) Either of the following:
33
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
8 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(a) the supplier or prospective supplier mentioned in
1
paragraph (1)(f) or (i);
2
(b) the provider or prospective provider mentioned in
3
paragraph (1)(l);
4
may be the individual or organisation who sent the fax or
5
authorised the sending of the fax.
6
(5) Paragraphs (1)(d) to (n) are to be read independently of each other.
7
(6) Subsection (1) has effect subject to subsection (7).
8
Excluded faxes--regulations
9
(7) The regulations may provide that a specified kind of fax is not a
10
marketing fax for the purposes of this Act.
11
5C Industry classification
12
(1) The ACMA may, by legislative instrument, determine that an
13
activity ascertained in accordance with the determination is an
14
industry classification for the purposes of this Act.
15
Note:
See also section 589 of the Telecommunications Act 1997 (instruments
16
may provide for matters by reference to other instruments).
17
(2) The ACMA must ensure that a determination is in force under
18
subsection (1) at all times after the commencement of this section.
19
23 Paragraphs 11(2)(a) and (b)
20
Omit "telephone".
21
24 Paragraph 11(3)(b)
22
Repeal the paragraph, substitute:
23
(b) during the 30-day period ending at the end of the day on
24
which the call was made:
25
(i) the person received information under paragraph
26
19(2)(d) in response to the submission of the list, but
27
that information did not state that the number was
28
registered on the Do Not Call Register; or
29
(ii) the person received information under paragraph
30
19(2)(e) in response to the submission of the list, but
31
that information did not state that the number was
32
registered on the Do Not Call Register; or
33
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 9
(iii) the person was informed under paragraph 19(2)(f), in
1
response to the submission of the list, that the number
2
was not registered on the Do Not Call Register; or
3
(iv) under paragraph 19(2)(g), in response to the submission
4
of the list, the person was given a list that included the
5
number.
6
25 Subsection 11(3)
7
Omit "telephone", substitute "Australian".
8
26 After subsection 11(3)
9
Insert:
10
(3A) Subsection (1) does not apply if:
11
(a) the number was included on a list that was submitted by the
12
person under subsection 19(1); and
13
(b) during the 30-day period ending at the end of the day on
14
which the call was made, the person received information
15
under paragraph 19(2)(d) in response to the submission of the
16
list, and that information stated:
17
(i) that the number was registered on the Do Not Call
18
Register; and
19
(ii) that a consent for that number was registered on the Do
20
Not Call Register in relation to telemarketing calls about
21
an activity covered by a particular industry
22
classification; and
23
(c) the call was about an activity covered by the industry
24
classification.
25
For the purposes of this subsection, a list may consist of a single
26
Australian number.
27
Note:
Section 19 deals with access to the Do Not Call Register.
28
27 Subsection 11(6)
29
After "(3),", insert "(3A),".
30
28 Paragraph 12(1)(b)
31
Omit "telephone numbers that, under section 14, are eligible to be
32
entered on the Do Not Call Register", substitute "Australian numbers".
33
29 After Part 2
34
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
10 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Insert:
1
Part 2A--Rules about sending marketing faxes
2
3
12A Simplified outline
4
The following is a simplified outline of this Part:
5
·
Unsolicited marketing faxes must not be sent to a number
6
registered on the Do Not Call Register.
7
·
Agreements for the sending of marketing faxes must require
8
compliance with this Act.
9
12B Unsolicited marketing faxes must not be sent to a number
10
registered on the Do Not Call Register
11
(1) A person must not send, or cause to be sent, a marketing fax to an
12
Australian number if:
13
(a) the number is registered on the Do Not Call Register; and
14
(b) the fax is not a designated marketing fax.
15
Note: For
designated marketing fax, see Schedule 1A.
16
(2) Subsection (1) does not apply if:
17
(a) the relevant account-holder; or
18
(b) a nominee of the relevant account-holder;
19
consented to the sending of the fax.
20
Note 1:
For the meaning of consent, see Schedule 2.
21
Note 2:
For the meaning of nominee, see section 39.
22
(3) Subsection (1) does not apply if:
23
(a) the number was included on a list that was submitted by the
24
person under subsection 19(1); and
25
(b) during the 30-day period ending at the end of the day on
26
which the fax was sent:
27
(i) the person received information under paragraph
28
19(2)(d) in response to the submission of the list, but
29
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 11
that information did not state that the number was
1
registered on the Do Not Call Register; or
2
(ii) the person received information under paragraph
3
19(2)(e) in response to the submission of the list, but
4
that information did not state that the number was
5
registered on the Do Not Call Register; or
6
(iii) the person was informed under paragraph 19(2)(f), in
7
response to the submission of the list, that the number
8
was not registered on the Do Not Call Register; or
9
(iv) under paragraph 19(2)(g), in response to the submission
10
of the list, the person was given a list that included the
11
number.
12
For the purposes of this subsection, a list may consist of a single
13
Australian number.
14
Note:
Section 19 deals with access to the Do Not Call Register.
15
(4) Subsection (1) does not apply if:
16
(a) the number was included on a list that was submitted by the
17
person under subsection 19(1); and
18
(b) during the 30-day period ending at the end of the day on
19
which the fax was sent, the person received information
20
under paragraph 19(2)(d) in response to the submission of the
21
list, and that information stated:
22
(i) that the number was registered on the Do Not Call
23
Register; and
24
(ii) that a consent for that number was registered on the Do
25
Not Call Register in relation to marketing faxes about
26
an activity covered by a particular industry
27
classification; and
28
(c) the fax was about an activity covered by the industry
29
classification.
30
For the purposes of this subsection, a list may consist of a single
31
Australian number.
32
Note:
Section 19 deals with access to the Do Not Call Register.
33
(5) Subsection (1) does not apply if the person sent the fax, or caused
34
the fax to be sent, by mistake.
35
(6) Subsection (1) does not apply if the person took reasonable
36
precautions, and exercised due diligence, to avoid the
37
contravention.
38
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
12 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(7) A person who wishes to rely on subsection (2), (3), (4), (5) or (6)
1
bears an evidential burden in relation to that matter.
2
Ancillary contraventions
3
(8) A person must not:
4
(a) aid, abet, counsel or procure a contravention of
5
subsection (1); or
6
(b) induce, whether by threats or promises or otherwise, a
7
contravention of subsection (1); or
8
(c) be in any way, directly or indirectly, knowingly concerned in,
9
or party to, a contravention of subsection (1); or
10
(d) conspire with others to effect a contravention of
11
subsection (1).
12
Civil penalty provisions
13
(9) Subsections (1) and (8) are civil penalty provisions.
14
Note:
Part 4 provides for pecuniary penalties for breaches of civil penalty
15
provisions.
16
Extended meaning of cause
17
(10) For the purposes of this section, if:
18
(a) a person (the first person) enters into a contract or
19
arrangement, or arrives at an understanding, with another
20
person; and
21
(b) under the contract, arrangement or understanding, the other
22
person undertakes to send, or to cause any or all of the
23
employees or agents of the other person to send, marketing
24
faxes; and
25
(c) the other person, or an employee or agent of the other person,
26
gives effect to the contract, arrangement or understanding by
27
sending a marketing fax;
28
the first person is taken to have caused the marketing fax to be
29
sent.
30
(11) Paragraph (10)(a) applies to contracts or arrangements entered into,
31
or understandings arrived at, before, at or after the commencement
32
of this section.
33
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 13
12C Agreements for the sending of marketing faxes must require
1
compliance with this Act
2
(1) A person (the first person) must not enter into a contract or
3
arrangement, or arrive at an understanding, with another person, if:
4
(a) under the contract, arrangement or understanding, the other
5
person undertakes to:
6
(i) send marketing faxes; or
7
(ii) cause any or all of the employees or agents of the other
8
person to send marketing faxes; and
9
(b) there is a reasonable likelihood that some or all of those faxes
10
will be sent to Australian numbers; and
11
(c) the contract, arrangement or understanding does not contain
12
an express provision to the effect that the other person will:
13
(i) in any case--comply with this Act; and
14
(ii) if subparagraph (a)(ii) applies--take all reasonable steps
15
to ensure that the employees and agents of the other
16
person comply with this Act;
17
in relation to the sending of marketing faxes covered by the
18
contract, arrangement or understanding.
19
Ancillary contraventions
20
(2) A person must not:
21
(a) aid, abet, counsel or procure a contravention of
22
subsection (1); or
23
(b) induce, whether by threats or promises or otherwise, a
24
contravention of subsection (1); or
25
(c) be in any way, directly or indirectly, knowingly concerned in,
26
or party to, a contravention of subsection (1); or
27
(d) conspire with others to effect a contravention of
28
subsection (1).
29
Civil penalty provisions
30
(3) Subsections (1) and (2) are civil penalty provisions.
31
Note:
Part 4 provides for pecuniary penalties for breaches of civil penalty
32
provisions.
33
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
14 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Validity of contracts, arrangements or understandings
1
(4) A failure to comply with subsection (1) does not affect the validity
2
of any contract, arrangement or understanding.
3
30 Subsection 13(1)
4
Omit "telephone", substitute "Australian".
5
31 Subsection 13(1)
6
After "numbers", insert ", and related consents,".
7
32 Subsection 13(6)
8
Repeal the subsection, substitute:
9
(6) For the purposes of the Privacy Act 1988, the primary purpose of
10
the Do Not Call Register is to facilitate:
11
(a) the prohibition, under section 11, of unsolicited telemarketing
12
calls (other than designated telemarketing calls); and
13
(b) the prohibition, under section 12B, of unsolicited marketing
14
faxes (other than designated marketing faxes).
15
33 Section 14
16
Repeal the section.
17
34 Section 15
18
Before "An application for", insert "(1)".
19
35 Section 15
20
Omit "a telephone", substitute "an Australian".
21
36 Subparagraphs 15(a)(i) and (ii)
22
Omit "telephone".
23
37 After paragraph 15(b)
24
Insert:
25
(ba) may state that the applicant:
26
(i) consents to the making of telemarketing calls to the
27
number if such a call is about an activity covered by a
28
specified industry classification; and
29
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 15
(ii) wishes to have that consent entered on the Do Not Call
1
Register; and
2
(bb) may state that the applicant:
3
(i) consents to the sending of marketing faxes to the
4
number if such a fax is about an activity covered by a
5
specified industry classification; and
6
(ii) wishes to have that consent entered on the Do Not Call
7
Register; and
8
38 At the end of section 15
9
Add:
10
(2) An application may be made even if the number is already entered
11
on the Do Not Call Register.
12
Note 1:
If there are no registered consents for a number, subsection (2) enables
13
an application for the re-registration of the number:
14
(a) with one or more consents; or
15
(b) without any consents.
16
Note 2:
If there are registered consents for a number, subsection (2) enables an
17
application for the re-registration of the number:
18
(a) with a replacement set of consents; or
19
(b) without any consents.
20
Note 3:
See also paragraph 16(f).
21
(3) An application may set out 2 or more consents under
22
paragraph (1)(ba).
23
(4) An application may set out 2 or more consents under
24
paragraph (1)(bb).
25
39 Section 16
26
Repeal the section, substitute:
27
16 Registration
28
If an application is made under section 15 for an Australian
29
number to be entered on the Do Not Call Register, then:
30
(a) if the Do Not Call Register is kept by the ACMA--the
31
ACMA; or
32
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
16 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(b) if the Do Not Call Register is kept by the contracted service
1
provider--the contracted service provider on behalf of the
2
ACMA;
3
must:
4
(c) enter the number on the Do Not Call Register; and
5
(d) if the application stated that the applicant:
6
(i) consents to the making of telemarketing calls to the
7
number if such a call is about an activity covered by a
8
specified industry classification; and
9
(ii) wishes to have that consent entered on the Do Not Call
10
Register;
11
enter that consent on the Do Not Call Register; and
12
(e) if the application stated that the applicant:
13
(i) consents to the sending of marketing faxes to the
14
number if such a fax is about an activity covered by a
15
specified industry classification; and
16
(ii) wishes to have that consent entered on the Do Not Call
17
Register;
18
enter that consent on the Do Not Call Register; and
19
(f) if the application was made when the number was already
20
entered on the Do Not Call Register--immediately before
21
taking action under paragraph (c), (d) or (e), remove from the
22
Do Not Call Register:
23
(i) the previous entry of the number; and
24
(ii) any previous entries of consents for the number.
25
40 Subsection 17(1)
26
Omit "a telephone", substitute "an Australian".
27
41 Subsection 17(1)
28
After "number", insert "or a consent".
29
42 Paragraph 17(1)(b)
30
Repeal the paragraph, substitute:
31
(b) remains in force for 3 years, unless sooner removed from the
32
Do Not Call Register:
33
(i) under paragraph 16(f); or
34
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 17
(ii) in accordance with a determination under subsection
1
18(1).
2
43 Subsection 17(2)
3
Omit "a telephone", substitute "an Australian".
4
44 Subsection 17(2)
5
After "number" (first occurring), insert "or a consent".
6
45 Subsection 17(2)
7
After "the number", insert "or consent".
8
46 Subsection 17(3)
9
Omit "a telephone", substitute "an Australian".
10
47 Subsection 17(3)
11
After "number" (first occurring), insert "or a consent".
12
48 Subsection 17(3)
13
After "the number", insert "or consent".
14
49 Paragraph 18(1)(a)
15
Omit "telephone", substitute "Australian".
16
50 Subsection 19(1)
17
Omit "telephone" (wherever occurring), substitute "Australian".
18
51 Paragraph 19(2)(c)
19
Omit "telephone" (wherever occurring), substitute "Australian".
20
52 Paragraph 19(2)(d)
21
Repeal the paragraph, substitute:
22
(d) if the access-seeker requests the ACMA or the contracted
23
service provider, as the case may be, to do so--inform the
24
access-seeker:
25
(i) which numbers (if any) on the access-seeker's list are
26
registered on the Do Not Call Register; and
27
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
18 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(ii) if any consents for numbers on the access-seeker's list
1
are registered on the Do Not Call Register--of those
2
consents; and
3
(e) if the access-seeker requests the ACMA or the contracted
4
service provider, as the case may be, to do so--inform the
5
access-seeker which numbers (if any) on the access-seeker's
6
list are registered on the Do Not Call Register; and
7
(f) if the access-seeker requests the ACMA or the contracted
8
service provider, as the case may be, to do so--inform the
9
access-seeker which numbers (if any) on the access-seeker's
10
list are not registered on the Do Not Call Register; and
11
(g) if the access-seeker requests the ACMA or the contracted
12
service provider, as the case may be, to do so--return the
13
access-seeker's list, modified by the deletion of the numbers
14
(if any) registered on the Do Not Call Register.
15
53 Subsection 19(3)
16
Repeal the subsection.
17
54 Paragraph 20(1)(b)
18
Omit "19(2)(d)", substitute "19(2)(d), (e) or (f)".
19
55 Paragraph 20(1)(c)
20
Omit "subsection 19(3)", substitute "paragraph 19(2)(g)".
21
56 Paragraph 21(1)(a)
22
Omit "or (3)".
23
57 Subsections 21(2), (3) and (7)
24
Omit "or (3)".
25
58 Subsections 25(1), (3), (4), (5) and (6)
26
After "11(1) or (7)" (wherever occurring), insert "or 12B(1) or (8)".
27
59 After subsection 30(2)
28
Insert:
29
(2A) In determining whether a person (the victim) has suffered loss or
30
damage as a result of one or more contraventions by another
31
person of section 12B in relation to the sending of one or more
32
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 19
marketing faxes, and in assessing the amount of compensation
1
payable, the court may have regard to the following:
2
(a) the extent to which any expenses incurred by the victim are
3
attributable to dealing with the faxes;
4
(b) the effect of dealing with the faxes on the victim's ability to
5
carry on business or other activities;
6
(c) any damage to the reputation of the victim's business that is
7
attributable to dealing with the faxes;
8
(d) any loss of business opportunities suffered by the victim as a
9
result of dealing with the faxes;
10
(e) any other matters that the court considers relevant.
11
60 Subsection 39(1)
12
Omit "a telephone", substitute "an Australian".
13
Note:
The heading to subsection 39(1) is altered by omitting "telephone".
14
61 Subsection 39(1)
15
Omit "relevant telephone" (wherever occurring), substitute "relevant".
16
62 Subsection 39(3)
17
Omit "telephone", substitute "Australian".
18
63 Subsection 39(4)
19
Omit "a telephone", substitute "an Australian".
20
64 Subsection 39(4)
21
Omit "relevant telephone", substitute "relevant".
22
65 At the end of section 39
23
Add:
24
Principles of agency not limited
25
(5) References in this Act to a nominee do not, by implication, limit
26
the application of the principles of agency to a matter arising under
27
this Act.
28
66 Paragraphs 41(a), (b) and (c)
29
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
20 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
After "unsolicited telemarketing calls", insert "and unsolicited
1
marketing faxes".
2
67 At the end of subsection 44(1)
3
Add "or marketing faxes".
4
68 Paragraph 4(1)(b) of Schedule 1
5
Omit "telephone".
6
Note:
The heading to subclause 4(1) of Schedule 1 is altered by omitting "telephone".
7
69 Subparagraph 4(1)(c)(i) of Schedule 1
8
Omit "telephone".
9
70 Paragraph 4(2)(b) of Schedule 1
10
Omit "telephone".
11
Note:
The heading to subclause 4(2) of Schedule 1 is altered by omitting "telephone".
12
71 After Schedule 1
13
Insert:
14
Schedule 1A--Designated marketing faxes
15
Note: See
section
4.
16
17
18
1 Object
19
The object of this Schedule is to define the expression designated
20
marketing fax.
21
Note:
Designated marketing faxes are exempt from section 12B (unsolicited
22
marketing faxes must not be sent to a number registered on the Do Not
23
Call Register).
24
2 Government bodies, religious organisations and charities
25
For the purposes of this Act, a marketing fax is a designated
26
marketing fax if:
27
(a) the sending of the fax is authorised by any of the following
28
bodies:
29
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 21
(i) a government body;
1
(ii) a religious organisation;
2
(iii) a charity or charitable institution; and
3
(b) if the fax relates to goods or services--the body is the
4
supplier, or prospective supplier, of the goods or services;
5
and
6
(c) the fax is not of a kind specified in the regulations.
7
3 Political parties, independent members of parliament, candidates
8
etc.
9
Political parties
10
(1) For the purposes of this Act, a marketing fax is a designated
11
marketing fax if:
12
(a) the sending of the fax is authorised by a registered political
13
party; and
14
(b) having regard to:
15
(i) the content of the fax; and
16
(ii) the presentational aspects of the fax;
17
it would be concluded that the purpose, or one of the
18
purposes, of the fax is:
19
(iii) to conduct fund-raising for electoral purposes; or
20
(iv) to conduct fund-raising for political purposes; and
21
(c) if the fax relates to goods or services--the registered political
22
party is the supplier, or prospective supplier, of the goods or
23
services; and
24
(d) the fax is not of a kind specified in the regulations.
25
Independent members of parliament etc.
26
(2) For the purposes of this Act, a marketing fax is a designated
27
marketing fax if:
28
(a) the sending of the fax is authorised by a person who is a
29
member of:
30
(i) the Parliament of the Commonwealth; or
31
(ii) the parliament of a State; or
32
(iii) the Legislative Assembly for the Australian Capital
33
Territory; or
34
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
22 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(iv) the Legislative Assembly of the Northern Territory; or
1
(v) the Legislative Assembly of Norfolk Island; or
2
(vi) a local governing body established by or under a law of
3
a State or a Territory;
4
and who is not affiliated with any registered political party;
5
and
6
(b) having regard to:
7
(i) the content of the fax; and
8
(ii) the presentational aspects of the fax;
9
it would be concluded that the purpose, or one of the
10
purposes, of the fax is:
11
(iii) to conduct fund-raising for electoral purposes; or
12
(iv) to conduct fund-raising for political purposes; and
13
(c) if the fax relates to goods or services--the person is the
14
supplier, or prospective supplier, of the goods or services;
15
and
16
(d) the fax is not of a kind specified in the regulations.
17
Candidates
18
(3) For the purposes of this Act, a marketing fax is a designated
19
marketing fax if:
20
(a) the sending of the fax is authorised by a person who is a
21
candidate in an election for:
22
(i) the House of Representatives; or
23
(ii) the Senate; or
24
(iii) a house of the parliament of a State; or
25
(iv) the Legislative Assembly for the Australian Capital
26
Territory; or
27
(v) the Legislative Assembly of the Northern Territory; or
28
(vi) the Legislative Assembly of Norfolk Island; or
29
(vii) a local governing body established by or under a law of
30
a State or a Territory; and
31
(b) having regard to:
32
(i) the content of the fax; and
33
(ii) the presentational aspects of the fax;
34
it would be concluded that the purpose, or one of the
35
purposes, of the fax is:
36
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 23
(iii) to conduct fund-raising for electoral purposes; or
1
(iv) to conduct fund-raising for political purposes; and
2
(c) if the fax relates to goods or services--the person is the
3
supplier, or prospective supplier, of the goods or services;
4
and
5
(d) the fax is not of a kind specified in the regulations.
6
4 Educational institutions
7
Relevant account-holder is a householder
8
(1) For the purposes of this Act, a marketing fax is a designated
9
marketing fax if:
10
(a) the sending of the fax is authorised by an educational
11
institution; and
12
(b) the fax is sent to a number that is used or maintained
13
primarily for the private or domestic purposes of the relevant
14
account-holder and/or members of the relevant
15
account-holder's household; and
16
(c) either or both of the following subparagraphs apply:
17
(i) the relevant account-holder is, or has been, enrolled as a
18
student in that institution;
19
(ii) a member or former member of the relevant
20
account-holder's household is, or has been, enrolled as a
21
student in that institution; and
22
(d) if the fax relates to goods or services--the institution is the
23
supplier, or prospective supplier, of the goods or services;
24
and
25
(e) the fax is not of a kind specified in the regulations.
26
Relevant account-holder is an employer
27
(2) For the purposes of this Act, a marketing fax is a designated
28
marketing fax if:
29
(a) the sending of the fax is authorised by an educational
30
institution; and
31
(b) the relevant account-holder is the employer of an employee;
32
and
33
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
24 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(c) the fax is sent to a number that is used or maintained
1
primarily for the private or domestic purposes of the
2
employee and/or members of the employee's household; and
3
(d) either or both of the following subparagraphs apply:
4
(i) the employee is, or has been, enrolled as a student in
5
that institution;
6
(ii) a member or former member of the employee's
7
household is, or has been, enrolled as a student in that
8
institution; and
9
(e) if the fax relates to goods or services--the institution is the
10
supplier, or prospective supplier, of the goods or services;
11
and
12
(f) the fax is not of a kind specified in the regulations.
13
Note:
Clause 7 provides for an extended meaning of employee and
14
employer.
15
5 Regulations
16
The regulations may provide that a specified kind of marketing fax
17
is a designated marketing fax for the purposes of this Act.
18
6 Authorising the sending of marketing faxes
19
Attribution of authorisation to organisation
20
(1) For the purposes of this Schedule (including subclause (2)), if:
21
(a) an individual authorises the sending of a marketing fax; and
22
(b) the individual does so on behalf of an organisation;
23
then:
24
(c) the organisation is taken to authorise the sending of the fax;
25
and
26
(d) the individual is taken not to authorise the sending of the fax.
27
Self-authorisation
28
(2) For the purposes of this Schedule, if:
29
(a) a marketing fax is sent by an individual or organisation; and
30
(b) the sending of the fax is not authorised by any other
31
individual or organisation;
32
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 25
the first-mentioned individual or organisation is taken to authorise
1
the sending of the fax.
2
7 Extended meaning of employee and employer
3
Member of the executive body of a body corporate
4
(1) For the purposes of clause 4, if an individual is a member of the
5
executive body (whether described as the board of directors or
6
otherwise) of a body corporate, the individual is taken to be an
7
employee of the body corporate.
8
Contractor
9
(2) For the purposes of clause 4, if an individual works under a
10
contract that is wholly or principally for the labour of the
11
individual, the individual is taken to be an employee of the other
12
party to the contract.
13
Member of parliament
14
(3) For the purposes of clause 4, if an individual is a member of the
15
Parliament of the Commonwealth, the individual is taken to be an
16
employee of the Commonwealth.
17
(4) For the purposes of clause 4, if an individual is a member of the
18
parliament of a State, the individual is taken to be an employee of
19
the State.
20
(5) For the purposes of clause 4, if an individual is a member of the
21
Legislative Assembly for the Australian Capital Territory, the
22
individual is taken to be an employee of the Australian Capital
23
Territory.
24
(6) For the purposes of clause 4, if an individual is a member of the
25
Legislative Assembly of the Northern Territory, the individual is
26
taken to be an employee of the Northern Territory.
27
(7) For the purposes of clause 4, if an individual is a member of the
28
Legislative Assembly of Norfolk Island, the individual is taken to
29
be an employee of Norfolk Island.
30
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
26 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Member of local governing body
1
(8) For the purposes of clause 4, if an individual is a member of a local
2
governing body established by or under a law of a State or
3
Territory, the individual is taken to be an employee of that body.
4
Officeholder etc.
5
(9) For the purposes of clause 4, if an individual:
6
(a) holds, or performs the duties of, an appointment, office or
7
position under the Constitution or under a law of the
8
Commonwealth, of a State or of a Territory; or
9
(b) is otherwise in the service of the Commonwealth, of a State
10
or of a Territory (including service as a member of the
11
Defence Force or as a member of a police force);
12
the individual is taken to be an employee of the Commonwealth,
13
the State or the Territory, as the case requires.
14
72 At the end of clause 1 of Schedule 2 (before the note)
15
Add "or the sending of a marketing fax".
16
73 Clause 1 of Schedule 2 (at the end of the note)
17
Add "and section 12B (unsolicited marketing faxes must not be sent to a
18
number registered on the Do Not Call Register)".
19
74 After paragraph 2(a) of Schedule 2
20
Insert:
21
(aa) registered consent; or
22
75 At the end of clause 2 of Schedule 2
23
Add:
24
Note:
Express consent does not include registered consent--see the
25
definition of express consent in section 4.
26
76 After clause 3 of Schedule 2
27
Insert:
28
3A Duration of registered consent
29
(1) A registered consent cannot be withdrawn.
30
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 27
(2) Subclause (1) does not prevent the entry of the consent from being
1
removed from the Do Not Call Register:
2
(a) under paragraph 16(f); or
3
(b) in accordance with a determination under subsection 18(1).
4
77 Clause 4 of Schedule 2
5
Omit "a telephone", substitute "an Australian".
6
Note:
The heading to clause 4 of Schedule 2 is altered by omitting "a telephone" and
7
substituting "an Australian".
8
78 Paragraphs 4(a) and (b) of Schedule 2
9
Omit "telephone".
10
79 Clause 4 of Schedule 2
11
Omit "the telephone number", substitute "the number".
12
80 Subclause 5(1) of Schedule 2
13
Omit "a telephone", substitute "an Australian".
14
81 Paragraphs 5(1)(a) and (b) of Schedule 2
15
Omit "telephone".
16
82 Subclause 5(2) of Schedule 2
17
Omit "a telephone", substitute "an Australian".
18
83 Paragraphs 5(2)(a) and (b) of Schedule 2
19
Omit "telephone".
20
84 At the end of Schedule 2
21
Add:
22
6 Determinations about consent--telemarketing calls made to
23
business numbers
24
(1) The ACMA may, by legislative instrument, determine that, for the
25
purposes of the application of this Act to a telemarketing call made
26
to a business number, the consent of the relevant account-holder
27
may not be inferred in the circumstances specified in the
28
determination.
29
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
28 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(2) The ACMA may, by legislative instrument, determine that, for the
1
purposes of the application of this Act to a telemarketing call made
2
to a business number, the consent of the relevant account-holder
3
may be inferred in the circumstances specified in the
4
determination.
5
(3) Before making a determination under subclause (1) or (2), the
6
ACMA must consult the Minister.
7
(4) Before making a determination under subclause (1) or (2), the
8
ACMA must:
9
(a) publish on its website a notice:
10
(i) setting out a draft of the determination; and
11
(ii) inviting persons to make submissions to the ACMA
12
about the draft determination within 14 days after the
13
notice is published; and
14
(b) consider any submissions received within the 14-day period.
15
(5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
16
power conferred on the ACMA by subclause (1) or (2). However,
17
if a variation of a determination under subclause (1) or (2) is a
18
variation of a minor nature, the ACMA is not required to comply
19
with subclause (3) or (4) in relation to the variation.
20
(6) If a determination under subclause (1) or (2) of this clause is
21
inconsistent with regulations made for the purposes of clause 5, the
22
determination has no effect to the extent of the inconsistency.
23
7 Determinations about consent--marketing faxes sent to business
24
numbers
25
(1) The ACMA may, by legislative instrument, determine that, for the
26
purposes of the application of this Act to a marketing fax sent to a
27
business number, the consent of the relevant account-holder may
28
not be inferred in the circumstances specified in the determination.
29
(2) The ACMA may, by legislative instrument, determine that, for the
30
purposes of the application of this Act to a marketing fax sent to a
31
business number, the consent of the relevant account-holder may
32
be inferred in the circumstances specified in the determination.
33
(3) Before making a determination under subclause (1) or (2), the
34
ACMA must consult the Minister.
35
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 29
(4) Before making a determination under subclause (1) or (2), the
1
ACMA must:
2
(a) publish on its website a notice:
3
(i) setting out a draft of the determination; and
4
(ii) inviting persons to make submissions to the ACMA
5
about the draft determination within 14 days after the
6
notice is published; and
7
(b) consider any submissions received within the 14-day period.
8
(5) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a
9
power conferred on the ACMA by subclause (1) or (2). However,
10
if a variation of a determination under subclause (1) or (2) is a
11
variation of a minor nature, the ACMA is not required to comply
12
with subclause (3) or (4) in relation to the variation.
13
(6) If a determination under subclause (1) or (2) of this clause is
14
inconsistent with regulations made for the purposes of clause 5, the
15
determination has no effect to the extent of the inconsistency.
16
85 After subclause 2(2) of Schedule 3
17
Insert:
18
(2A) Subclause (2) does not apply to a contravention of subsection 12(1)
19
or (2) or 12C(1) or (2).
20
Note 1:
Section 12 deals with agreements for the making of telemarketing
21
calls.
22
Note 2:
Section 12C deals with agreements for the sending of marketing faxes.
23
86 Subclause 4(1) of Schedule 3 (table items 1, 2, 3, 4, 5 and
24
6)
25
After "11(1) or (7)", insert "or 12B(1) or (8)".
26
87 Subclause 4(2) of Schedule 3 (table items 1, 2, 3, 4, 5 and
27
6)
28
After "11(1) or (7)", insert "or 12B(1) or (8)".
29
Division 2--Application
30
88 Application--agreements for the making of telemarketing
31
calls
32
Schedule 1 Amendments
Part 1 Amendment of the Do Not Call Register Act 2006
30 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
The amendment of paragraph 12(1)(b) of the Do Not Call Register Act
1
2006 made by this Part applies in relation to:
2
(a) a contract or arrangement entered into; or
3
(b) an understanding arrived at;
4
after the commencement of this item.
5
89 Application--continuity of the Do Not Call Register
6
The amendments of section 13 of the Do Not Call Register Act 2006
7
made by this Part do not affect the continuity of the Do Not Call
8
Register.
9
90 Application--registration of an Australian number
10
If:
11
(a) an application for an Australian number to be entered on the
12
Do Not Call Register was made before the commencement of
13
this item under section 15 of the Do Not Call Register Act
14
2006; and
15
(b) the application was pending immediately before that
16
commencement;
17
the application has effect as if it were an application made after that
18
commencement under section 15 of the Do Not Call Register Act 2006
19
as amended by this Part.
20
91 Application--access to the Do Not Call Register
21
Despite the following amendments made, and repeals effected, by this
22
Part:
23
(a) the repeal of paragraph 11(3)(b) of the Do Not Call Register
24
Act 2006;
25
(b) the repeal of paragraph 19(2)(d) of the Do Not Call Register
26
Act 2006;
27
(c) the repeal of subsection 19(3) of the Do Not Call Register Act
28
2006;
29
(d) the amendment of paragraph 20(1)(c) of the Do Not Call
30
Register Act 2006;
31
(e) the amendment of paragraph 20(1)(d) of the Do Not Call
32
Register Act 2006;
33
(f) the amendments of section 21 of the Do Not Call Register
34
Act 2006;
35
Amendments Schedule 1
Amendment of the Do Not Call Register Act 2006 Part 1
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 31
those paragraphs, that subsection and that section continue to apply, in
1
relation to a list submitted under subsection 19(1) of the Do Not Call
2
Register Act 2006 before the commencement of this item, as if those
3
amendments had not been made and those repeals had not been
4
effected.
5
92 Application--continuity of a nomination
6
The amendments of subsections 39(1) and (3) of the Do Not Call
7
Register Act 2006 made by this Part do not affect the continuity of a
8
nomination in force under that section immediately before the
9
commencement of this item.
10
93 Application--principles of agency
11
Subsection 39(5) of the Do Not Call Register Act 2006 as amended by
12
this Part applies to a matter arising under that Act before, at or after the
13
commencement of this item.
14
94 Application--infringement notices
15
Subclause 2(2A) of Schedule 3 of the Do Not Call Register Act 2006 as
16
amended by this Part applies in relation to an alleged contravention that
17
occurs after the commencement of this item.
18
19
Schedule 1 Amendments
Part 2 Other amendments
32 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Part 2--Other amendments
1
Telecommunications Act 1997
2
95 At the end of subsection 3(2)
3
Add:
4
; (l) to promote responsible practices in relation to the sending of
5
marketing faxes.
6
96 Section 5
7
Omit "or the telemarketing industry" (wherever occurring), substitute ",
8
the telemarketing industry or the fax marketing industry".
9
97 Section 7
10
Insert:
11
fax marketing industry means an industry that involves carrying
12
on a fax marketing activity (as defined by section 109C).
13
98 Section 7
14
Insert:
15
marketing fax means:
16
(a) a marketing fax (within the meaning of the Do Not Call
17
Register Act 2006) that is sent to an Australian number; or
18
(b) a fax (within the meaning of the Do Not Call Register Act
19
2006) that is sent to an Australian number, where, having
20
regard to:
21
(i) the content of the fax; and
22
(ii) the presentational aspects of the fax;
23
it would be concluded that the purpose, or one of the
24
purposes, of the fax is:
25
(iii) to conduct opinion polling; or
26
(iv) to carry out standard questionnaire-based research.
27
99 Section 106
28
Omit "or the telemarketing industry" (wherever occurring), substitute ",
29
the telemarketing industry or the fax marketing industry".
30
Amendments Schedule 1
Other amendments Part 2
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 33
100 After section 109B
1
Insert:
2
109C Fax marketing activity
3
(1) For the purposes of this Part, a fax marketing activity is an activity
4
to which subsection (2), (3) or (4) applies.
5
(2) This subsection applies to an activity that:
6
(a) is carried on by a person (the first person) under a contract or
7
arrangement (other than a contract of employment); and
8
(b)
consists
of:
9
(i) using marketing faxes to market, advertise or promote
10
goods or services, where the first person is not the
11
supplier or prospective supplier of the goods or services;
12
or
13
(ii) using marketing faxes to advertise or promote a supplier
14
or prospective supplier of goods or services, where the
15
first person is not the supplier or prospective supplier of
16
the goods or services; or
17
(iii) using marketing faxes to market, advertise or promote
18
land or interests in land, where the first person is not the
19
supplier or prospective supplier of the land or interests
20
in land; or
21
(iv) using marketing faxes to advertise or promote a supplier
22
or prospective supplier of land or interests in land,
23
where the first person is not the supplier or prospective
24
supplier of the land or interests in land; or
25
(v) using marketing faxes to market, advertise or promote
26
business opportunities or investment opportunities,
27
where the first person is not the provider or prospective
28
provider of the business opportunities or investment
29
opportunities; or
30
(vi) using marketing faxes to advertise or promote a
31
provider, or prospective provider, of business
32
opportunities or investment opportunities, where the
33
first person is not the provider or prospective provider
34
of the business opportunities or investment
35
opportunities.
36
Schedule 1 Amendments
Part 2 Other amendments
34 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(3) This subsection applies to an activity carried on by a person if the
1
activity consists of:
2
(a) using marketing faxes to market, advertise or promote goods
3
or services, where the person is the supplier or prospective
4
supplier of the goods or services; or
5
(b) using marketing faxes to advertise or promote a supplier or
6
prospective supplier of goods or services, where the person is
7
the supplier or prospective supplier of the goods or services;
8
or
9
(c) using marketing faxes to market, advertise or promote land or
10
interests in land, where the person is the supplier or
11
prospective supplier of the land or interests in land; or
12
(d) using marketing faxes to advertise or promote a supplier or
13
prospective supplier of land or interests in land, where the
14
person is the supplier or prospective supplier of the land or
15
interests in land; or
16
(e) using marketing faxes to market, advertise or promote
17
business opportunities or investment opportunities, where the
18
person is the provider or prospective provider of the business
19
opportunities or investment opportunities; or
20
(f) using marketing faxes to advertise or promote a provider, or
21
prospective provider, of business opportunities or investment
22
opportunities, where the person is the provider or prospective
23
provider of the business opportunities or investment
24
opportunities.
25
(4) This subsection applies to an activity carried on by a person if the
26
activity consists of:
27
(a) using marketing faxes to solicit donations; or
28
(b) using marketing faxes to conduct opinion polling; or
29
(c) using marketing faxes to carry out standard
30
questionnaire-based research.
31
(5) An expression (other than marketing fax) used in this section and
32
in section 5B of the Do Not Call Register Act 2006 has the same
33
meaning in this section as it has in that section.
34
101 After section 110B
35
Insert:
36
Amendments Schedule 1
Other amendments Part 2
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 35
110C Sections of the fax marketing industry
1
(1) For the purposes of this Part, sections of the fax marketing
2
industry are to be ascertained in accordance with this section.
3
(2) If no determination is in force under subsection (3), all of the
4
persons carrying on, or proposing to carry on, fax marketing
5
activities constitute a single section of the fax marketing industry
6
for the purposes of this Part.
7
(3) The ACMA may, by legislative instrument, determine that persons
8
carrying on, or proposing to carry on, one or more specified kinds
9
of fax marketing activity constitute a section of the fax marketing
10
industry for the purposes of this Part.
11
(4) The section must be identified in the determination by a unique
12
name and/or number.
13
(5) A determination under subsection (3) has effect accordingly.
14
(6) Sections of the fax marketing industry determined under
15
subsection (3):
16
(a) need not be mutually exclusive; and
17
(b) may consist of the aggregate of any 2 or more sections of the
18
fax marketing industry mentioned in subsection (2) or
19
determined under subsection (3); and
20
(c) may be subsets of a section of the fax marketing industry
21
mentioned in subsection (2) or determined under
22
subsection (3).
23
(7) Subsection (6) does not, by implication, limit subsection (3).
24
102 After section 111AA
25
Insert:
26
111AB Participants in a section of the fax marketing industry
27
For the purposes of this Part, if a person is a member of a group
28
that constitutes a section of the fax marketing industry, the person
29
is a participant in that section of the fax marketing industry.
30
103 After subsection 112(1B)
31
Insert:
32
Schedule 1 Amendments
Part 2 Other amendments
36 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(1C) The Parliament intends that bodies or associations that the ACMA
1
is satisfied represent sections of the fax marketing industry should
2
develop codes (industry codes) that are to apply to participants in
3
the respective sections of the industry in relation to the fax
4
marketing activities of the participants.
5
104 Subsection 112(2)
6
Omit "and 125A", substitute ", 125A and 125B".
7
105 Subsection 112(2)
8
Omit "or the telemarketing industry", substitute ", the telemarketing
9
industry or the fax marketing industry".
10
106 After subsection 112(3C)
11
Insert:
12
(3D) In determining whether public interest considerations are being
13
addressed in a way that does not impose undue financial and
14
administrative burdens on participants in sections of the fax
15
marketing industry, the ACMA must have regard to:
16
(a) the number of persons who would be likely to benefit from
17
the code or standard concerned; and
18
(b) the extent to which those persons are householders or small
19
business operators; and
20
(c) the legitimate business interests of participants in sections of
21
the fax marketing industry.
22
107 Subsection 112(4)
23
Omit "and (3C)", substitute ", (3C) and (3D)".
24
108 Subsection 113(2)
25
Omit "or the telemarketing industry", substitute ", the telemarketing
26
industry or the fax marketing industry".
27
109 Paragraph 113(3)(y)
28
Omit "telephone", substitute "Australian".
29
110 At the end of subsection 113(3)
30
Add:
31
Amendments Schedule 1
Other amendments Part 2
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 37
; (z) record-keeping practices to be followed in relation to
1
marketing faxes sent or attempted to be sent;
2
(za) action to be taken to limit the total number of marketing
3
faxes sent or attempted to be sent, by a particular participant
4
in a section of the fax marketing industry, during a particular
5
period to a particular Australian number.
6
111 Paragraph 117(1)(a)
7
Omit "or the telemarketing industry", substitute ", the telemarketing
8
industry or the fax marketing industry".
9
112 Paragraph 117(1)(b)
10
Omit "or telemarketing activities", substitute ", telemarketing activities
11
or fax marketing activities".
12
113 Paragraph 117(1)(h)
13
Repeal the paragraph, substitute:
14
(h) except in a case where:
15
(i) the code applies to participants in a section of the
16
telemarketing industry and deals with one or more
17
matters relating to the telemarketing activities of those
18
participants; or
19
(ii) the code applies to participants in a section of the fax
20
marketing industry and deals with one or more matters
21
relating to the fax marketing activities of those
22
participants;
23
the ACMA is satisfied that the Telecommunications Industry
24
Ombudsman has been consulted about the development of
25
the code; and
26
114 Subparagraph 117(1)(k)(iii)
27
Omit "or the telemarketing industry", substitute ", the telemarketing
28
industry or the fax marketing industry".
29
115 Subsection 118(1)
30
Omit "or the telemarketing industry", substitute ", the telemarketing
31
industry or the fax marketing industry".
32
116 Paragraph 118(1)(a)
33
Schedule 1 Amendments
Part 2 Other amendments
38 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
Omit "or telemarketing activities", substitute ", telemarketing activities
1
or fax marketing activities".
2
117 Subsection 118(3)
3
Omit "or the telemarketing industry", substitute ", the telemarketing
4
industry or the fax marketing industry".
5
118 Paragraph 118(4A)(c)
6
Omit "or the telemarketing industry", substitute ", the telemarketing
7
industry or the fax marketing industry".
8
119 Subsection 119(1)
9
Omit "or the telemarketing industry", substitute ", the telemarketing
10
industry or the fax marketing industry".
11
Note:
The heading to section 119 is altered by omitting "or the telemarketing industry" and
12
substituting ", the telemarketing industry or the fax marketing industry".
13
120 Paragraph 119(1)(b)
14
Omit "or telemarketing activities", substitute ", telemarketing activities
15
or fax marketing activities".
16
121 Paragraph 121(1)(a)
17
Omit "or the telemarketing industry", substitute ", the telemarketing
18
industry or the fax marketing industry".
19
122 Subsection 122(1)
20
Omit "or the telemarketing industry", substitute ", the telemarketing
21
industry or the fax marketing industry".
22
123 Subparagraph 123(1)(a)(i)
23
Omit "or the telemarketing industry", substitute ", the telemarketing
24
industry or the fax marketing industry".
25
124 Subparagraph 123(1)(a)(ii)
26
Omit "or telemarketing activities", substitute "telemarketing activities
27
or fax marketing activities".
28
125 Paragraph 124(1)(a)
29
Amendments Schedule 1
Other amendments Part 2
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 39
Omit "or the telemarketing industry", substitute ", the telemarketing
1
industry or the fax marketing industry".
2
126 Subparagraph 124(1)(c)(ii)
3
Omit "or telemarketing activities", substitute ", telemarketing activities
4
or fax marketing activities".
5
127 Subparagraph 125(1)(a)(i)
6
Omit "or the telemarketing industry", substitute ", the telemarketing
7
industry or the fax marketing industry".
8
128 Subparagraph 125(1)(a)(ii)
9
Omit "or telemarketing activities", substitute ", telemarketing activities
10
or fax marketing activities".
11
129 Subsection 125(7)
12
Omit "or the telemarketing industry", substitute ", the telemarketing
13
industry or the fax marketing industry".
14
130 Subsection 125(7)
15
Omit "or telemarketing activities", substitute ", telemarketing activities
16
or fax marketing activities".
17
131 After section 125A
18
Insert:
19
125B ACMA must determine certain industry standards relating to
20
the fax marketing industry
21
(1) The ACMA may, by legislative instrument, determine a standard
22
that:
23
(a) applies to participants in each section of the fax marketing
24
industry; and
25
(b) deals with the following matters relating to the fax marketing
26
activities of those participants:
27
(i) restricting the hours and/or days during which
28
marketing faxes may be sent, or attempted to be sent, to
29
an Australian number;
30
Schedule 1 Amendments
Part 2 Other amendments
40 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(ii) requiring that a marketing fax sent to an Australian
1
number must contain specified information about the
2
person who authorised the sending of the fax;
3
(iii) restricting the total number of marketing faxes sent, or
4
attempted to be sent, by the relevant participant during a
5
particular period to a particular Australian number;
6
(iv) requiring that, if a marketing fax sent to an Australian
7
number is authorised by a particular person (the
8
authorising person), the fax must contain information
9
about how the recipient of the fax may send a message
10
to the effect that the recipient does not want to receive
11
any marketing faxes authorised by the authorising
12
person.
13
Note:
For variation and revocation, see subsection 33(3) of the Acts
14
Interpretation Act 1901.
15
(2) A standard under subsection (1) is to be known as an industry
16
standard.
17
(3) If the ACMA is satisfied that a body or association represents a
18
section of the fax marketing industry, the ACMA must consult the
19
body or association before determining a standard under
20
subsection (1).
21
(4) The ACMA must ensure that a standard is in force under
22
subsection (1) at all times after the commencement of this section.
23
(5) For the purposes of this section, authorise, when used in relation to
24
a marketing fax, has the same meaning as in the Do Not Call
25
Register Act 2006.
26
132 Subsection 128(1)
27
Omit "or the telemarketing industry", substitute ", the telemarketing
28
industry or the fax marketing industry".
29
133 Subsection 129(1)
30
Omit "or the telemarketing industry", substitute ", the telemarketing
31
industry or the fax marketing industry".
32
134 Subsection 130(1)
33
Omit "or the telemarketing industry", substitute ", the telemarketing
34
industry or the fax marketing industry".
35
Amendments Schedule 1
Other amendments Part 2
Do Not Call Register Legislation Amendment Bill 2009 No. , 2009 41
135 Paragraphs 130(1)(a) and (b)
1
Omit "or telemarketing activities", substitute ", telemarketing activities
2
or fax marketing activities".
3
136 Subsection 133(1A)
4
After "125A", insert "or 125B".
5
137 Section 135A
6
After "125A", insert "or 125B".
7
138 Paragraphs 139(1)(a) and (b)
8
Omit "telemarketing activities", substitute "telemarketing activities or
9
fax marketing activities".
10
Note:
The heading to section 139 is altered by inserting "or fax marketing activities" after
11
"telemarketing activities".
12
139 At the end of section 509
13
Add:
14
(7) If it appears to the ACMA that:
15
(a) a person (the first person) wishes to make a complaint about:
16
(i) a contravention of a code registered under Part 6, where
17
the code applies to participants in a section of the fax
18
marketing industry (within the meaning of Part 6) and
19
deals with one or more matters relating to the fax
20
marketing activities (within the meaning of Part 6) of
21
those participants; or
22
(ii) a contravention of section 128 in relation to an industry
23
standard, where the standard applies to participants in a
24
section of the fax marketing industry (within the
25
meaning of Part 6) and deals with one or more matters
26
relating to the fax marketing activities (within the
27
meaning of Part 6) of those participants; or
28
(iii) a contravention of the Do Not Call Register Act 2006 or
29
regulations under that Act; and
30
(b) the complaint relates to a marketing fax sent, or attempted to
31
be sent, to an Australian number; and
32
(c) the first person does not have sufficient information to
33
identify:
34
Schedule 1 Amendments
Part 2 Other amendments
42 Do Not Call Register Legislation Amendment Bill 2009 No. , 2009
(i) the person who sent, or attempted to send, the fax; or
1
(ii) the person who caused the fax to be sent or attempted;
2
and
3
(d) the first person gives the ACMA such information about the
4
fax as the ACMA requires;
5
it is the duty of the ACMA to take reasonable steps to assist the
6
first person to identify whichever of the following is applicable:
7
(e) the person who sent, or attempted to send, the fax;
8
(f) the person who caused the fax to be sent or attempted.
9
(8) Subsection (7) does not limit subsection (4).
10
140 After paragraph 515A(1)(b)
11
Insert:
12
(ba) a contravention of a code registered under Part 6, where the
13
code applies to participants in a section of the fax marketing
14
industry (within the meaning of Part 6) and deals with one or
15
more matters relating to the fax marketing activities (within
16
the meaning of Part 6) of those participants;
17
(bb) a contravention of section 128 in relation to an industry
18
standard, where the standard applies to participants in a
19
section of the fax marketing industry (within the meaning of
20
Part 6) and deals with one or more matters relating to the fax
21
marketing activities (within the meaning of Part 6) of those
22
participants;
23

 

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