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This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017-2018-2019
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Telecommunications Legislation
Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
(Senator Griff)
A Bill for an Act to amend the law relating to
unsolicited communications, and for related
purposes
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Commonwealth Electoral Act 1918
3
Do Not Call Register Act 2006
3
Spam Act 2003
9
Telecommunications Act 1997
13
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
1
A Bill for an Act to amend the law relating to
1
unsolicited communications, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the Telecommunications Legislation Amendment
6
(Unsolicited Communications) Act 2019.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
the Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation 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repealed as set out in the applicable items in the Schedule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
Amendments Schedule 1
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
3
Schedule 1--Amendments
1
2
Commonwealth Electoral Act 1918
3
1 Subsection 321D(5) (at the end of the table)
4
Add:
5
9
the communication is by voice call
(within the meaning of the Do Not
Call Register Act 2006)
if the call involves an actor who is
performing as a person in a
particular occupation or in certain
circumstances--the call includes
such an actor
2 Application provision
6
The Commonwealth Electoral Act 1918, as amended by this Schedule,
7
applies to communication that occurs after the commencement of this
8
item.
9
Do Not Call Register Act 2006
10
3 Section 4
11
Insert:
12
charity-contactable number: subsection 22A(1).
13
4 After subsection 11(3)
14
Insert:
15
(3A) Subsection (1) does not apply if:
16
(a) the making of the call was authorised by a registered charity;
17
and
18
(b) the number was included on a list that was submitted by the
19
charity under subsection 22B(1); and
20
(c) during the 30-day period ending at the end of the day on
21
which the call was made:
22
Schedule 1 Amendments
4
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
(i) the charity was informed under paragraph 22B(2)(b), in
1
response to the submission of the list, that the number
2
was a charity-contactable number; or
3
(ii) under paragraph 22B(2)(d), in response to the
4
submission of the list, the charity was given a list that
5
included the number.
6
Note 1:
A telemarketing call to a number registered on the Do Not Call
7
Register is a designated telemarketing call if the call is authorised by a
8
registered charity and is made to a charity-contactable number: see
9
clause 2A of Schedule 1.
10
Note 2:
A registered charity may submit a list of Australian numbers under
11
section 22B to identify if those numbers are charity-contactable
12
numbers.
13
5 Subsection 11(6)
14
After "(3),", insert "(3A),".
15
6 After subsection 12B(3)
16
Insert:
17
(4) Subsection (1) does not apply if:
18
(a) the sending of the fax was authorised by a registered charity;
19
and
20
(b) the number was included on a list that was submitted by the
21
charity under subsection 22B(1); and
22
(c) during the 30-day period ending at the end of the day on
23
which the fax was sent:
24
(i) the charity was informed under paragraph 22B(2)(b), in
25
response to the submission of the list, that the number
26
was a charity-contactable number; or
27
(ii) under paragraph 22B(2)(d), in response to the
28
submission of the list, the charity was given a list that
29
included the number.
30
Note 1:
A marketing fax to a number registered on the Do Not Call Register is
31
a designated marketing fax if the fax is authorised by a registered
32
charity and is made to a charity-contactable number: see clause 2A of
33
Schedule 1A.
34
Note 2:
A registered charity may submit a list of Australian numbers under
35
section 22B to identify if those numbers are charity-contactable
36
numbers.
37
Amendments Schedule 1
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
5
7 Subsection 12B(7)
1
After "(3),", insert "(4),".
2
8 At the end of Part 3
3
Add:
4
22A Numbers registered on the Do Not Call Register are
5
charity-contactable numbers unless requested not to be
6
(1) An Australian number registered on the Do Not Call Register is a
7
charity-contactable number unless the entry (the number's entry)
8
of the number in the Do Not Call Register specifies the number is
9
not a charity-contactable number.
10
(2) Either:
11
(a) the relevant account-holder of an Australian number
12
registered, or to be registered, on the Do Not Call Register; or
13
(b) a nominee of the relevant account-holder;
14
may request that the number's entry specify the number is not a
15
charity-contactable number.
16
(3) The request:
17
(a) is to be made to:
18
(i) if the Do Not Call Register is kept by the ACMA--the
19
ACMA; or
20
(ii) if the Do Not Call Register is kept by the contracted
21
service provider--the contracted service provider on
22
behalf of the ACMA; and
23
(b) must be in the applicable form, and made in the applicable
24
manner, specified by the ACMA; and
25
(c) if the Australian number is not registered on the Do Not Call
26
Register--must be made with or after an application for the
27
number to be entered on the Do Not Call Register in
28
accordance with section 15 has been made.
29
(4) As soon as reasonably practicable after receiving the request, the
30
ACMA or the contracted service provider (as the case may be)
31
must specify in the number's entry that the number is not a
32
charity-contactable number.
33
Schedule 1 Amendments
6
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
22B Identifying charity-contactable numbers on the Do Not Call
1
Register
2
(1) A registered charity (the access-seeker) that wishes to identify
3
charity-contactable numbers on the Do Not Call Register may
4
submit a list of Australian numbers (which may consist of a single
5
Australian number) to:
6
(a) if the Do Not Call Register is kept by the ACMA--the
7
ACMA; or
8
(b) if the Do Not Call Register is kept by the contracted service
9
provider--the contracted service provider on behalf of the
10
ACMA.
11
Note:
A person may submit a list of Australian numbers under section 19 to
12
identify numbers registered on the Do Not Call Register.
13
(2) If the access-seeker submits a list, the ACMA or the contracted
14
service provider (as the case may be) must:
15
(a) check the Australian numbers on the access-seeker's list
16
against the Australian numbers registered on the Do Not Call
17
Register; and
18
(b) if the access-seeker requests the ACMA or the contracted
19
service provider, as the case may be, to do so--inform the
20
access-seeker which numbers (if any) on the access-seeker's
21
list are charity-contactable numbers; and
22
(c) 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 which numbers (if any) on the access-seeker's
25
list are not charity-contactable numbers; and
26
(d) if the access-seeker requests the ACMA or the contracted
27
service provider, as the case may be, to do so--return the
28
access-seeker's list, modified by the deletion of the numbers
29
that are not charity-contactable numbers (if any).
30
(3) A submission under subsection (1) is to be made in the applicable
31
manner (if any) specified by the ACMA.
32
22C Request for a number registered on the Do Not Call Register to
33
become a charity-contactable number
34
(1) This section applies if:
35
Amendments Schedule 1
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
7
(a) an Australian number is registered on the Do Not Call
1
Register; and
2
(b) the entry in the Do Not Call Register for the Australian
3
number specifies (the charity-contactable specification) that
4
the number is not a charity-contactable number.
5
(2) The relevant account-holder of the Australian number, or a
6
nominee of the relevant account-holder, may request that the
7
charity-contactable specification be removed from the entry.
8
Note:
The effect of this request is that the Australian number will be a
9
charity-contactable number: see subsection 22A(1).
10
(3) The request:
11
(a) is to be made to:
12
(i) if the Do Not Call Register is kept by the ACMA--the
13
ACMA; or
14
(ii) if the Do Not Call Register is kept by the contracted
15
service provider--the contracted service provider on
16
behalf of the ACMA; and
17
(b) must be in the applicable form, and made in the applicable
18
manner, specified by the ACMA.
19
(4) As soon as reasonably practicable after receiving the request, the
20
ACMA or the contracted service provider (as the case may be)
21
must remove the charity-contactable specification from the entry.
22
9 Clause 2 of Schedule 1 (heading)
23
Omit "and charities".
24
10 Paragraph 2(a) of Schedule 1
25
Repeal the paragraph, substitute:
26
(a) the making of the call is authorised by a government body;
27
and
28
11 After clause 2 of Schedule 1
29
Insert:
30
Schedule 1 Amendments
8
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
2A Charities
1
For the purposes of this Act, a telemarketing call is a designated
2
telemarketing call if:
3
(a) the call is made to a charity-contactable number; and
4
(b) the making of the call is authorised by a registered charity;
5
and
6
(c) if the call relates to goods or services--the charity is the
7
supplier, or prospective supplier, of the goods or services;
8
and
9
(d) the call is not of a kind specified in the regulations.
10
12 Clause 2 of Schedule 1A (heading)
11
Omit "and charities".
12
13 Paragraph 2(a) of Schedule 1A
13
Repeal the paragraph, substitute:
14
(a) the making of the call is authorised by a government body;
15
and
16
14 After clause 2 of Schedule 1A
17
Insert:
18
2A Charities
19
For the purposes of this Act, a marketing fax is a designated
20
marketing fax if:
21
(a) the fax is sent to a charity-contactable number; and
22
(b) the sending of the fax is authorised by a registered charity;
23
and
24
(c) if the fax relates to goods or services--the charity is the
25
supplier, or prospective supplier, of the goods or services;
26
and
27
(d) the fax is not of a kind specified in the regulations.
28
Amendments Schedule 1
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
9
15 Application provision
1
(1)
The Do Not Call Register Act 2006, as amended by this Schedule,
2
applies to a telemarketing call made, or a marketing fax sent, after the
3
commencement of this item.
4
(2)
Subsection 22A(1) of the Do Not Call Register Act 2006, as inserted by
5
this Schedule, applies in relation to an Australian number registered on
6
the Do Not Call Register before, on or after the commencement of this
7
item.
8
Spam Act 2003
9
16 Section 3
10
Omit:
11
•
This Act sets up a scheme for regulating commercial email
12
and other types of commercial electronic messages.
13
substitute:
14
•
This Act sets up a scheme for regulating commercial email,
15
other types of commercial electronic messages and electronic
16
messages containing electoral matter.
17
17 Section 4
18
Insert:
19
unsubscribe message: see subsection 18(9).
20
18 After Part 2
21
Insert:
22
Schedule 1 Amendments
10
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
Part 2A--Rules about sending electronic messages
1
containing electoral matter
2
3
18A Electronic messages about electoral matter must contain a
4
functional unsubscribe facility
5
(1) A person must not send, or cause to be sent, an electronic message
6
that:
7
(a) has an Australian link; and
8
(b) contains electoral matter (within the meaning of the
9
Commonwealth Electoral Act 1918);
10
unless:
11
(c) the message includes:
12
(i) a statement to the effect that the recipient may use an
13
electronic address set out in the message to send an
14
unsubscribe message to the individual or organisation
15
who authorised the sending of the first-mentioned
16
message; or
17
(ii) a statement to similar effect; and
18
(d) the statement is presented in a clear and conspicuous manner;
19
and
20
(e) the electronic address is reasonably likely to be capable of
21
receiving:
22
(i) the recipient's unsubscribe message (if any); and
23
(ii) a reasonable number of similar unsubscribe messages
24
sent by other recipients (if any) of the same message;
25
at all times during a period of at least 30 days after the
26
message is sent; and
27
(f) the electronic address is legitimately obtained; and
28
(g) the electronic address complies with the condition or
29
conditions (if any) specified in the regulations made for the
30
purposes of paragraph 18(1)(g).
31
Note:
For Australian link, see section 7.
32
(2) Subsection (1) does not apply if the person:
33
(a) did not know; and
34
(b) could not, with reasonable diligence, have ascertained;
35
Amendments Schedule 1
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
11
that the message had an Australian link.
1
(3) Subsection (1) does not apply to the extent (if any) to which it is
2
inconsistent with the terms of a contract or other agreement
3
between:
4
(a) the individual or organisation who authorised the sending of
5
the first-mentioned message; and
6
(b) the relevant electronic account-holder.
7
(4) Subsection (1) does not apply if the person sent the message, or
8
caused the message to be sent, by mistake.
9
(5) A person who wishes to rely on subsection (2), (3) or (4) bears an
10
evidential burden in relation to that matter.
11
Ancillary contraventions
12
(6) A person must not:
13
(a) aid, abet, counsel or procure a contravention of
14
subsection (1); or
15
(b) induce, whether by threats or promises or otherwise, a
16
contravention of subsection (1); or
17
(c) be in any way, directly or indirectly, knowingly concerned in,
18
or party to, a contravention of subsection (1); or
19
(d) conspire with others to effect a contravention of
20
subsection (1).
21
(7) A person does not contravene subsection (6) merely because the
22
person supplies a carriage service that enables an electronic
23
message to be sent.
24
Civil penalty provisions
25
(8) Subsections (1) and (6) are civil penalty provisions.
26
19 After clause 2 of Schedule 1
27
Insert:
28
Schedule 1 Amendments
12
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
2A Government bodies
1
For the purposes of this Act, an electronic message is a designated
2
commercial electronic message if:
3
(a) the sending of the message is authorised by a government
4
body; and
5
(b) the message relates to goods or services; and
6
(c) the body is the supplier, or prospective supplier, of the goods
7
or services concerned.
8
20 Clause 3 of Schedule 1 (heading)
9
Repeal the heading, substitute:
10
3 Political parties and charities
11
21 Paragraph 3(a) of Schedule 1
12
Repeal the paragraph, substitute:
13
(a) the sending of the message is authorised by a registered
14
political party or a registered charity; and
15
22 At the end of clause 3 of Schedule 1
16
Add:
17
; and (d) the message includes:
18
(i) a statement to the effect that the recipient may use an
19
electronic address set out in the message to send an
20
unsubscribe message to the individual or organisation
21
who authorised the sending of the first-mentioned
22
message; or
23
(ii) a statement to similar effect; and
24
(e) the statement is presented in a clear and conspicuous manner;
25
and
26
(f) the electronic address is reasonably likely to be capable of
27
receiving:
28
(i) the recipient's unsubscribe message (if any); and
29
(ii) a reasonable number of similar unsubscribe messages
30
sent by other recipients (if any) of the same message;
31
at all times during a period of at least 30 days after the
32
message is sent; and
33
Amendments Schedule 1
No. , 2019
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
13
(g) the electronic address is legitimately obtained; and
1
(h) the electronic address complies with the condition or
2
conditions (if any) specified in the regulations made for the
3
purposes of paragraph 18(1)(g).
4
23 Application provision
5
The Spam Act 2003, as amended by this Schedule, applies to an
6
electronic message sent after the commencement of this item.
7
Telecommunications Act 1997
8
24 At the end of section 125A
9
Add:
10
(5) If:
11
(a) Part 2 of the Do Not Call Register Act 2006, or any provision
12
of that Act necessary to give effect to a provision of that Part,
13
is amended; and
14
(b) the amendments of that Act have the effect that the standard
15
in force at the time the amendments commence is no longer
16
consistent with that Act;
17
the ACMA must, within 30 days of the commencement of the
18
amendments to that Act, ensure that the standard is amended, or a
19
new standard is determined, that takes into account the
20
amendments of that Act.
21
25 At the end of section 125B
22
Add:
23
(6) If:
24
(a) Part 2A of the Do Not Call Register Act 2006, or any
25
provision of that Act necessary to give effect to a provision
26
of that Part, is amended; and
27
(b) the amendments of that Act have the effect that the standard
28
in force at the time the amendments commence is no longer
29
consistent with that Act;
30
the ACMA must, within 30 days of the commencement of the
31
amendments to that Act, ensure that the standard is amended, or a
32
Schedule 1 Amendments
14
Telecommunications Legislation Amendment (Unsolicited
Communications) Bill 2019
No. , 2019
new standard is determined, that takes into account the
1
amendments of that Act.
2