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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Spam
(Consequential Amendments) Bill 2003
No.
, 2003
(Communications, Information Technology and the
Arts)
A Bill for an Act to deal with
consequential matters relating to the enactment of the Spam Act 2003, and
for related purposes
Contents
Part 1—Amendments commencing on Royal
Assent 3
Telecommunications Act
1997 3
Part 2—Amendments commencing at the same time as Part 2 of
the Spam Act 2003
commences 13
Australian Communications Authority Act
1997 13
Telecommunications Act
1997 13
A Bill for an Act to deal with consequential matters
relating to the enactment of the Spam Act 2003, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Spam (Consequential Amendments) Act
2003.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its
terms.
|
Commencement information |
||
|---|---|---|
|
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 on which this Act receives the Royal Assent. |
|
|
2. Schedule 1, Part 1 |
The day on which this Act receives the Royal Assent. |
|
|
3. Schedule 1, Part 2 |
At the same time as Part 2 of the Spam Act 2003
commences. |
|
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.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Part 1—Amendments
commencing on Royal Assent
1 At the end of subsection 3(2)
Add:
; (j) to promote responsible practices in relation to the sending of
commercial electronic messages.
2 Section 5
After “that represent sections of the telecommunications
industry”, insert “or the e-marketing industry”.
3 Section 5
After “a particular participant in the telecommunications
industry”, insert “or the e-marketing industry”.
4 Section 7
Insert:
commercial electronic message has the same meaning as in the
Spam Act 2003.
5 Section 7
Insert:
e-marketing industry means an industry that involves carrying
on an e-marketing activity.
6 Section 7
Insert:
Internet service provider has the same meaning as in
Schedule 5 to the Broadcasting Services Act 1992.
7 Section 106
After “telecommunications industry” (wherever occurring),
insert “or the e-marketing industry”.
8 After section 108
Insert:
(1) For the purposes of this Part, if a person supplies, or proposes to
supply, an electronic messaging service to the public, the person is an
electronic messaging service provider.
(2) For the purposes of subsection (1), a service is supplied to the
public if, and only if, at least one end-user of the service is outside the
immediate circle of the supplier of the service.
(3) In this section:
electronic message has the same meaning as in the Spam Act
2003.
electronic messaging service means a service that enables any
or all of the following electronic messages to be sent or received:
(a) web-based e-mail;
(b) instant messages;
(c) text messages;
(d) messages of a kind specified in the regulations.
message has the same meaning as in the Spam Act
2003.
For the purposes of this Part, the telecommunications
industry includes an industry that involves carrying on business as an
electronic messaging service provider.
9 At the end of
section 109
Add:
; or (g) carrying on business as an electronic messaging service
provider.
10 After section 109
Insert:
(1) For the purposes of this Part, an e-marketing activity
is an activity to which subsection (2) or (3) applies.
(2) This subsection applies to an activity that:
(a) is carried on by a person (the first person) under a
contract or arrangement (other than a contract of employment); and
(b) consists of:
(i) using commercial electronic messages to market, advertise or promote
goods or services, where the first person is not the supplier or prospective
supplier of the goods or services; or
(ii) using commercial electronic messages to advertise or promote a
supplier or prospective supplier of goods or services, where the first person is
not the supplier or prospective supplier of the goods or services; or
(iii) using commercial electronic messages to market, advertise or promote
land or interests in land, where the first person is not the supplier or
prospective supplier of the land or interests in land; or
(iv) using commercial electronic messages to advertise or promote a
supplier or prospective supplier of land or interests in land, where the first
person is not the supplier or prospective supplier of the land or interests in
land; or
(v) using commercial electronic messages to market, advertise or promote
business opportunities or investment opportunities, where the first person is
not the provider or prospective provider of the business opportunities or
investment opportunities; or
(vi) using commercial electronic messages to advertise or promote a
provider, or prospective provider, of business opportunities or investment
opportunities, where the first person is not the provider or prospective
provider of the business opportunities or investment opportunities.
(3) This subsection applies to an activity carried on by a person
if:
(a) the activity consists of using commercial electronic messages to
market, advertise or promote goods or services; and
(b) the person is the supplier or prospective supplier of the goods or
services; and
(c) the activity is the sole or principal means of marketing, advertising
or promoting the goods or services.
(4) An expression used in this section and in section 6 of the
Spam Act 2003 has the same meaning in this section as it has in that
section.
11 Subsection 110(4)
After “by”, insert “a”.
12 At the end of subsection
110(2)
Add:
; (i) electronic messaging service providers.
13 After section 110
Insert:
(1) For the purposes of this Part, sections of the e-marketing
industry are to be ascertained in accordance with this
section.
(2) If no determination is in force under subsection (3), all of the
persons carrying on, or proposing to carry on, e-marketing activities constitute
a single section of the e-marketing industry for the purposes of this
Part.
(3) The ACA may, by written instrument, determine that persons carrying
on, or proposing to carry on, one or more specified kinds of e-marketing
activity constitute a section of the e-marketing industry for the purposes of
this Part.
(4) The section must be identified in the determination by a unique name
and/or number.
(5) A determination under subsection (3) has effect
accordingly.
(6) Sections of the e-marketing industry determined under
subsection (3):
(a) need not be mutually exclusive; and
(b) may consist of the aggregate of any 2 or more sections of the
e-marketing industry mentioned in subsection (2) or determined under
subsection (3); and
(c) may be subsets of a section of the e-marketing industry mentioned in
subsection (2) or determined under subsection (3).
(7) Subsection (6) does not, by implication, limit
subsection (3).
(8) A copy of a determination under subsection (3) is to be published
in the Gazette.
14 After section 111
Insert:
For the purposes of this Part, if a person is a member of a group that
constitutes a section of the e-marketing industry, the person is a
participant in that section of the e-marketing industry.
(1) For the purposes of this Part, an unsolicited commercial
electronic message is a commercial electronic message that is
sent:
(a) without the consent of the relevant electronic account-holder;
or
(b) to a non-existent electronic address.
(2) An expression used in this section and in the Spam Act 2003 has
the same meaning in this section as it has in that Act.
15 After subsection 112(1)
Insert:
(1A) The Parliament intends that bodies or associations that the ACA is
satisfied represent sections of the e-marketing industry should develop codes
(industry codes) that are to apply to participants in the
respective sections of the industry in relation to the e-marketing activities of
the participants.
16 At the end of subsection
112(2)
Add “or the e-marketing industry”.
17 Subsection 112(3)
Before “, the ACA”, insert “(other than electronic
messaging service providers)”.
18 After subsection 112(3)
Insert:
(3A) In determining whether public interest considerations are being
addressed in a way that does not impose undue financial and administrative
burdens on participants in the section of the telecommunications industry that
consists of electronic messaging service providers, the ACA must have regard
to:
(a) the number of end-users who would be likely to benefit from the code
or standard concerned; and
(b) the extent to which those end-users are residential or small business
end-users; and
(c) the legitimate business interests of electronic messaging service
providers.
(3B) In determining whether public interest considerations are being
addressed in a way that does not impose undue financial and administrative
burdens on participants in sections of the e-marketing industry, the ACA must
have regard to:
(a) the number of persons who would be likely to benefit from the code or
standard concerned; and
(b) the extent to which those persons are householders or small business
operators; and
(c) the legitimate business interests of participants in sections of the
e-marketing industry.
19 Subsection 112(4)
Omit “Subsection (3) does not”, substitute
“Subsections (3), (3A) and (3B) do not”.
20 Subsection 113(2)
After “telecommunications industry”, insert “or the
e-marketing industry”.
21 At the end of subsection
113(3)
Add:
; (q) procedures to be followed by:
(i) Internet service providers; and
(ii) electronic messaging service providers;
in dealing with unsolicited commercial electronic messages (including
procedures relating to the provision or use of regularly updated software for
filtering unsolicited commercial electronic messages);
(r) giving customers information about the availability, use and
appropriate application of software for filtering unsolicited commercial
electronic messages;
(s) action to be taken to assist in the development and evaluation of
software for filtering unsolicited commercial electronic messages;
(t) action to be taken in order to minimise or prevent the sending or
delivery of unsolicited commercial electronic messages, including:
(i) the configuration of servers so as to minimise or prevent the sending
or delivery of unsolicited commercial electronic messages; and
(ii) the shutdown of open relay servers;
(u) action to be taken to ensure responsible practices in relation to the
use of commercial electronic messages to market, advertise or promote goods or
services to individuals who are under 18 years of age;
(v) procedures to be followed in relation to the giving of consent by
relevant electronic account-holders (within the meaning of the Spam Act
2003) to the sending of commercial electronic messages.
22 At the end of subsection
115(3)
Add “or (t)”.
23 Paragraph 117(1)(a)
After “telecommunications industry”, insert “or the
e-marketing industry”.
24 Paragraph 117(1)(b)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
25 Subparagraph 117(1)(k)(iii)
After “telecommunications industry”, insert “or the
e-marketing industry”.
26 Section 118
After “telecommunications industry” (wherever occurring),
insert “or the e-marketing industry”.
27 Paragraph 118(1)(a)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
28 Subsection 119(1)
After “telecommunications industry”, insert “or the
e-marketing industry”.
Note: The heading to section 119 is altered by adding
at the end “or the e-marketing industry”.
29 Paragraph 119(1)(b)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
30 Subparagraph 123(1)(a)(i)
After “telecommunications industry”, insert “or the
e-marketing industry”.
31 Subparagraph 123(1)(a)(ii)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
32 Paragraph 124(1)(a)
After “telecommunications industry”, insert “or the
e-marketing industry”.
33 Subparagraph 124(1)(c)(ii)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
34 Section 125
After “telecommunications industry” (wherever occurring),
insert “or the e-marketing industry”.
35 Subparagraph 125(1)(a)(ii)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
36 Subsection 125(7)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
37 Subsection 130(1)
After “telecommunications industry”, insert “or the
e-marketing industry”.
38 Paragraphs 130(1)(a) and (b)
After “telecommunications activities”, insert “or
e-marketing activities, as the case may be,”.
39 At the end of Part 6
Add:
Civil proceedings do not lie against:
(a) an Internet service provider; or
(b) an electronic messaging service provider;
in respect of anything done by the provider in connection with:
(c) an industry code registered under this Part; or
(d) an industry standard;
in so far as the code or standard deals with the procedures referred to in
paragraph 113(3)(q).
This Part does not apply to the extent (if any) that it would infringe
any constitutional doctrine of implied freedom of political
communication.
40 Transitional—sections 121 and 122 of
the Telecommunications Act 1997
Sections 121 and 122 of the Telecommunications Act 1997 do not
apply to a contravention of an industry code if:
(a) the contravention occurred before the commencement of Part 2 of
the Spam Act 2003; and
(b) either:
(i) the code deals with a matter referred to in paragraph 113(3)(q), (r),
(s), (t), (u) or (v) of the Telecommunications Act 1997; or
(ii) the code relates to activities that consist of carrying on business
as an electronic messaging service provider.
41 Transitional—sections 128 and 129 of
the Telecommunications Act 1997
Sections 128 and 129 of the Telecommunications Act 1997 do not
apply to a contravention of an industry standard if:
(a) the contravention occurred before the commencement of Part 2 of
the Spam Act 2003; and
(b) either:
(i) the code deals with a matter referred to in paragraph 113(3)(q), (r),
(s), (t), (u) or (v) of the Telecommunications Act 1997; or
(ii) the code relates to activities that consist of carrying on business
as an electronic messaging service provider.
Part 2—Amendments
commencing at the same time as Part 2 of the Spam Act 2003
commences
Australian Communications
Authority Act 1997
42 After subparagraph 6(j)(ia)
Insert:
(ib) the Spam Act 2003; or
43 After paragraph 8(3)(aa)
Insert:
(ab) the Spam Act 2003;
44 Section 7 (after paragraph (aa) of the
definition of ACA’s telecommunications powers)
Insert:
(ab) the Spam Act 2003; or
45 Paragraph 121(1)(a)
After “telecommunications industry”, insert “or the
e-marketing industry”.
46 Subsection 122(1)
After “telecommunications industry”, insert “or the
e-marketing industry”.
47 Subsection 128(1)
After “telecommunications industry”, insert “or the
e-marketing industry”.
48 Subsection 129(1)
After “telecommunications industry”, insert “or the
e-marketing industry”.
49 Subsection 492(5) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
50 Subsection 502(5) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
51 After paragraph 508(aa)
Insert:
(ab) a contravention of the Spam Act 2003 or regulations under that
Act;
52 After paragraph 510(1)(aa)
Insert:
(ab) in the case of a matter covered by paragraph 508(ab)—the ACA
has reason to suspect that a person may have contravened the Spam Act
2003 or regulations under that Act; or
53 After subsection 512(1)
Insert:
(1A) However, the ACA is not required to inform the respondent that the
matter is to be investigated if:
(a) the matter relates to a possible breach of the Spam Act 2003 or
regulations under that Act; and
(b) the ACA has reasonable grounds to believe that informing the
respondent is likely to result in the concealment, loss or destruction of a
thing connected with the breach.
54 At the end of
section 512
Add:
(6) However, the ACA is not required to give the respondent an opportunity
to make submissions if:
(a) the matter relates to a possible breach of the Spam Act 2003 or
regulations under that Act; and
(b) the ACA has reasonable grounds to believe that giving the respondent
an opportunity to make submissions is likely to result in the concealment, loss
or destruction of a thing connected with the breach.
55 At the end of
section 513
Add:
(2) However, the ACA is not required to inform the respondent of the
decision and of the reasons for the decision if:
(a) the matter relates to a possible breach of the Spam Act 2003 or
regulations under that Act; and
(b) the ACA has reasonable grounds to believe that informing the
respondent is likely to result in the concealment, loss or destruction of a
thing connected with the breach.
56 At the end of
section 518
Add:
(3) However, the ACA is not required to give the person a reasonable
period to make representations if:
(a) the matter relates to a possible breach of the Spam Act 2003 or
regulations under that Act; and
(b) the ACA has reasonable grounds to believe that giving the person a
reasonable period to make representations is likely to result in the
concealment, loss or destruction of a thing connected with the breach.
57 Division 1 of Part 28
(heading)
Repeal the heading, substitute:
58 Section 532
Before:
• An inspector may require the production of a carrier
licence.
insert:
• Searches relating to breaches of the Spam Act 2003 may be
conducted:
(a) under the authority of a search warrant; or
(b) with the consent of the owner or occupier concerned.
• Searches to monitor compliance with the Spam Act 2003 may be
conducted:
(a) under the authority of a monitoring warrant; or
(b) with the consent of the occupier concerned.
59 Section 532
Omit “relevant to compliance with Part 21 (technical
regulation)”, substitute “relevant to compliance with the Spam
Act 2003 or Part 21 of this Act (technical
regulation)”.
60 After section 532
Insert:
In this Part:
Spam Act 2003 includes regulations under the Spam Act
2003.
61 Division 3 of Part 28
(heading)
Repeal the heading, substitute:
62 Subparagraph 535(1)(a)(iii)
Omit “and”, substitute “or”.
63 At the end of paragraph
535(1)(a)
Add:
(iv) anything in respect of which a breach of the Spam Act 2003 has
happened; or
(v) anything that may afford evidence about a breach of the Spam Act
2003; or
(vi) anything that was used, or is intended to be used, for the purposes
of breaching the Spam Act 2003; and
64 Paragraph 537(a)
After “offence”, insert “or breach”.
65 Division 4 of Part 28
(heading)
Repeal the heading, substitute:
66 After section 541
Insert:
For the purposes of this Part, a thing is connected with a
breach of the Spam Act 2003 if it is:
(a) a thing in respect of which the breach has happened; or
(b) a thing that may afford evidence about the breach; or
(c) a thing that was used, or is intended to be used, for the purposes of
the breach.
67 Subsection 542(1)
Omit all the words after “anything”, substitute:
connected with:
(a) a particular offence against Part 21 of this Act; or
(b) a particular breach of the Spam Act 2003.
Note: The heading to section 542 is altered by omitting
“Offence-related searches” and substituting
“Searches”.
68 At the end of paragraph
542(2)(d)
Add “or breach”.
69 After subsection 544(1)
Insert:
(1A) If:
(a) in the course of searching, in accordance with a warrant issued under
Division 3, for a particular thing in relation to a particular breach of
the Spam Act 2003, an inspector finds a thing that the inspector believes
on reasonable grounds to be:
(i) a thing that is connected with the breach, although not the thing
specified in the warrant; or
(ii) a thing that is connected with another breach of the Spam Act
2003; and
(b) the inspector believes, on reasonable grounds, that it is necessary to
seize that thing in order to prevent its concealment, loss or destruction, or
its use in committing, continuing or repeating the breach or the other
breach;
the warrant is taken to authorise the inspector to seize that
thing.
Note: The heading to section 544 is altered by adding
at the end “against Part 21 of this Act or other breaches
of the Spam Act 2003”.
70 Paragraph 546(1)(b)
Repeal the paragraph, substitute:
(b) if either of the following proceedings are instituted within that
period:
(i) proceedings for an offence against, or arising out of, this Act in
respect of which the thing may afford evidence;
(ii) proceedings for a breach of the Spam Act 2003 in respect of
which the thing may afford evidence;
the proceedings (including any appeal to a court in relation to those
proceedings) are completed.
71 After Division 5 of
Part 28
Insert:
(1) For the purpose of finding out whether the Spam Act 2003 has
been complied with, an inspector may:
(a) enter any premises; and
(b) exercise the monitoring powers set out in section 547B.
(2) An inspector is not authorised to enter premises under
subsection (1) unless:
(a) the occupier of the premises has consented to the entry; or
(b) the entry is made under a warrant under section 547D.
Consent
(3) Before obtaining the consent of a person for the purposes of
paragraph (2)(a), the inspector must inform the person that he or she may
refuse consent.
(4) An entry of an inspector by virtue of the consent of a person is not
lawful unless the person voluntarily consented to the entry.
(1) The monitoring powers that an inspector may exercise under paragraph
547A(1)(b) are as follows:
(a) to search the premises;
(b) to inspect and take photographs, or make sketches, of the premises or
any substance or thing at the premises;
(c) to inspect any document kept at the premises;
(d) to remove, or make copies of, any such document;
(e) to take onto the premises such equipment and materials as the
inspector requires for the purpose of exercising powers in relation to the
premises;
(f) to secure a thing, until a warrant is obtained to seize it,
if:
(i) the inspector finds the thing during the exercise of powers on the
premises; and
(ii) the inspector believes on reasonable grounds that the thing is
connected with a breach of the Spam Act 2003; and
(iii) the inspector believes on reasonable grounds that the thing would be
lost, destroyed or tampered with before the warrant can be obtained;
(g) to secure a computer, until an order under section 547J is
obtained in relation to it, if:
(i) the inspector finds the computer during the exercise of powers on the
premises; and
(ii) there are reasonable grounds for suspecting that a thing connected
with a breach of the Spam Act 2003 is held in, or is accessible from, the
computer; and
(iii) the inspector believes on reasonable grounds that the computer, or
the thing mentioned in subparagraph (ii), would be lost, destroyed or
tampered with before the order can be obtained.
(2) The monitoring powers that an inspector may exercise under paragraph
547A(1)(b) include the power to operate equipment at premises to see
whether:
(a) the equipment; or
(b) a disk, tape or other storage device that:
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to determining whether there has been
compliance with the Spam Act 2003.
(3) If the inspector, after operating equipment at the premises, finds
that the equipment, or that a tape, disk or other storage device at the
premises, contains information mentioned in subsection (2), the inspector
may:
(a) operate facilities at the premises to put the information in
documentary form and copy the document so produced; or
(b) if the information can be transferred to a tape, disk or other storage
device that:
(i) is brought to the premises; or
(ii) is at the premises and the use of which for the purpose has been
agreed to in writing by the occupier of the premises;
operate the equipment or other facilities to copy the information to the
storage device, and remove the storage device from the premises.
Note: See also section 547J (order requiring person to
assist with access to computer data).
An inspector (other than a member of a police force who is in uniform)
who proposes to enter premises under section 547A must:
(a) in the case of a member of a police force—produce, for
inspection by the occupier of the premises, written evidence of the fact that
the inspector is a member of a police force; or
(b) in any other case—produce the inspector’s identity card
for inspection by the occupier;
and, if the inspector fails to do so, he or she is not authorised to enter
the premises.
(1) An inspector may apply to a magistrate for a warrant under this
section in relation to premises.
(2) The magistrate may issue the warrant if the magistrate is satisfied,
by information on oath or affirmation, that it is reasonably necessary that one
or more inspectors should have access to the premises for the purposes of
finding out whether the Spam Act 2003 has been complied with.
(3) The magistrate must not issue the warrant unless the inspector or some
other person has given to the magistrate, either orally or by affidavit, such
further information (if any) as the magistrate requires concerning the grounds
on which the issue of the warrant is being sought.
(4) If the premises are a residence, the magistrate must not issue the
warrant unless:
(a) all of the following conditions are satisfied:
(i) the Federal Court has found, in proceedings under the Spam Act
2003, that an individual has breached that Act;
(ii) the finding has not been overturned on appeal;
(iii) the individual ordinarily resides at the premises;
(iv) the breach involved the use of equipment that is or was on those
premises;
(v) the warrant is issued within 10 years after the finding; or
(b) all of the following conditions are satisfied:
(i) an individual has given an undertaking for the purposes of
section 38 of the Spam Act 2003;
(ii) the undertaking is in force;
(iii) the individual ordinarily resides at the premises;
(iv) the undertaking applies to the use of equipment that is on those
premises.
(5) The warrant must:
(a) authorise one or more inspectors (whether or not named in the
warrant), with such assistance and by such force as is necessary and
reasonable:
(i) to enter the premises; and
(ii) to exercise the powers set out in section 547B in relation to
the premises; and
(b) state whether the entry is authorised to be made at any time of the
day or night or during specified hours of the day or night; and
(c) specify the day (not more than 6 months after the issue of the
warrant) on which the warrant ceases to have effect; and
(d) state the purpose for which the warrant is issued.
(1) If:
(a) a warrant under section 547D in relation to premises is being
executed by an inspector; and
(b) the occupier of the premises or another person who apparently
represents the occupier is present at the premises;
the inspector must make available to that person a copy of the
warrant.
(2) The inspector must identify himself or herself to that
person.
(3) The copy of the warrant referred to in subsection (1) need not
include the signature of the magistrate who issued the warrant.
(1) An inspector must, before entering premises under a warrant under
section 547D:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry to the
premises.
(2) An inspector is not required to comply with subsection (1) if he
or she believes on reasonable grounds that immediate entry to the premises is
required:
(a) to ensure the safety of a person; or
(b) to ensure that the effective execution of the warrant is not
frustrated.
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in
section 547B:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use
of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(ii) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the data or programs, such reasonable compensation for the damage or corruption
as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court for such reasonable
amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the premises, or the occupier’s employees and
agents, if they were available at the time, provided any appropriate warning or
guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of
data or addition of other data.
(1) If:
(a) a warrant under section 547D in relation to premises is being
executed; and
(b) the occupier of the premises, or another person who apparently
represents the occupier, is present at the premises;
the person is entitled to observe the search being conducted.
(2) The right to observe the search being conducted ceases if the person
impedes the search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
Scope
(1) This section applies if:
(a) both:
(i) a warrant is in force under Division 3 authorising an inspector
to enter particular premises; and
(ii) the warrant relates to the Spam Act 2003; or
(b) a warrant is in force under Division 5A authorising an inspector
to enter particular premises.
Application to magistrate for access order
(2) The inspector may apply to a magistrate for an order requiring a
specified person to provide any information or assistance that is reasonable and
necessary to allow the inspector to do one or more of the following:
(a) access data held in, or accessible from, a computer that is on those
premises;
(b) copy the data to a data storage device;
(c) convert the data into documentary form.
Grant of access order
(3) The magistrate may grant the order if the magistrate is satisfied
that:
(a) there are reasonable grounds for suspecting that a thing connected
with a breach of the Spam Act 2003 is held in, or is accessible from, the
computer; and
(b) the specified person is:
(i) reasonably suspected of having been involved in the breach;
or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has relevant knowledge of:
(i) the computer or a computer network of which the computer forms a part;
or
(ii) measures applied to protect data held in, or accessible from, the
computer.
Offence
(4) A person is guilty of an offence if:
(a) the person is subject to an order under this section; and
(b) the person omits to do an act; and
(c) the omission breaches the order.
Penalty: Imprisonment for 6 months.
Definitions
(5) In this section:
data includes:
(a) information in any form; and
(b) any program (or part of a program).
data held in a computer includes:
(a) data held in any removable data storage device for the time being held
in a computer; and
(b) data held in a data storage device on a computer network of which the
computer forms a part.
data storage device means a thing containing, or designed to
contain, data for use by a computer.
(6) This section does not, by implication, affect the meaning of the
expression data when used in any other provision of this Act or
the Telecommunications (Consumer Protection and Service Standards) Act
1999.
72 After subsection 549(1)
Insert:
(1A) An inspector who has entered land, premises, a vessel, an aircraft or
a vehicle under Division 4 or 5A may, to the extent that is reasonably
necessary for the purpose of ascertaining whether the Spam Act 2003 has
been complied with, require the person to:
(a) answer any questions put by the inspector; and
(b) produce any documents requested by the inspector.
73 Subsections 549(2) and (3)
After “(1)”, insert “or (1A)”.
74 Paragraph 550(a)
Omit “or 547”, substitute “, 547 or
547B”.
75 At the end of paragraph
550(b)
Add “or (1A)”.
76 Paragraph 550(c)
Omit “Part 21”, substitute “the Spam Act 2003
or Part 21 of this Act”.
77 Section 574A (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
78 Section 582
After “purposes of this Act,”, insert “the Spam Act
2003, regulations under the Spam Act 2003,”.
79 Section 582
After “Instruments under this Act”, insert “, the Spam
Act 2003”.
80 Section 582
After “operation of this Act,”, insert “the Spam Act
2003, regulations under the Spam Act 2003,”.
81 Section 582
After “This Act,”, insert “the Spam Act 2003,
regulations under the Spam Act 2003,”.
82 Subsection 585(2)
Repeal the subsection, substitute:
(2) In this section:
civil penalty provision includes a civil penalty provision
within the meaning of the Spam Act 2003.
offence includes a breach of a civil penalty
provision.
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
83 Subsection 586(2) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
84 Subsection 587(4) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
85 Subsection 589(6) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999; and
(b) Parts XIB and XIC of the Trade Practices Act 1974;
and
(c) the Spam Act 2003.
86 Subsection 591(3) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.
87 Subsection 592(2) (definition of this
Act)
Repeal the definition, substitute:
this Act includes:
(a) the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and regulations under that Act; and
(b) the Spam Act 2003 and regulations under that Act.